The concept of compulsory licensing of patent rights and its application situations

According to the relevant laws of our country, patent rights are protected by law, and the Patentee may license others to use the patent rights, and the patent rights may also be compulsorily licensed. So what is the concept of compulsory licensing of patent rights and what situations does it apply to? The following is The editor of Legal Savior Network provides answers for readers. I hope the following knowledge will be helpful to readers.

1. The concept of compulsory licensing of patent rights and its application

The so-called Compulsory licensing of patent rights refers to the government's compulsory grant of the right to a third party other than the patentee to exploit a certain patent. Applicable situations include failure to implement the patent without justifiable reasons or insufficient implementation of the patent.

"Patent Law of the People's Republic of China"

Article 48 has the following circumstances: 1. The patent administration department of the State Council may grant a compulsory license to implement an invention patent or utility model patent based on the application of an entity or individual that meets the conditions for implementation:

(1 ) It has been three years since the patent right was granted and four years since the patent application was filed, and the patentee has failed to implement or fully implement the patent without justifiable reasons;

(2) The patentee’s exercise of the patent right is deemed to be a monopoly behavior in accordance with the law, and the purpose is to eliminate or reduce the adverse impact of the behavior on competition.

Article 49 In the event of a national emergency or extraordinary situation, or for the purpose of public interest, the patent administration department of the State Council may grant an invention patent or utility Compulsory license for new patents.

Article 50: For public health purposes, the patent administrative department of the State Council may authorize the manufacture and export of medicines that have obtained patent rights to countries that comply with the People's Republic of China's participation in the process. Compulsory licenses stipulated in relevant international treaties by countries or regions.

2. Consequences of implementing compulsory patent licensing

Non-exclusivity, non-transferability and compensation

A unit or individual applying for a compulsory license shall provide proof of failure to sign an enforcement license contract with the patentee under reasonable conditions.

State Council The decision of the patent administration department to grant a compulsory license shall be promptly notified to the patentee, and shall be registered and announced. The decision to grant a compulsory license shall specify the scope and time of implementation based on the reasons for the compulsory license. Elimination of the reasons for compulsory licensing When it does not happen again, the patent administration department of the State Council shall, at the request of the patentee, make a decision to terminate the compulsory license after review. The unit or individual who obtains the compulsory license does not enjoy the exclusive right to implement it and has no right to allow others to implement it. .

The above knowledge is the editor’s answer to relevant legal issues. The so-called compulsory license of patent rights refers to the government’s forced grant of patent rights to other than the patentee. The applicable circumstances for a third party to exploit a patent include failure to implement the patent without legitimate reasons or insufficient implementation of the patent. If you need legal help, readers can consult the Legal Savior Network, which has professional lawyers Answer for you.