Under what circumstances can the patent administration department implement compulsory patent licensing?

It has been three years since the patent right was granted, and it has been four years since the patent application was filed, and the patent has not been implemented without justifiable reasons; the act of exercising the patent right is deemed to be a monopolistic act in accordance with the law, and is caused by the elimination or reduction of competition. If there is any adverse impact, the patent management department may have the right to implement compulsory licensing. Regarding the question under which circumstances the patent administrative department can implement compulsory licensing of patents, the editor of Legal Savior Network will answer it in detail for you below.

1. Under what circumstances can the patent administrative department implement compulsory patent licensing

1. Under any of the following circumstances, the Patent Administration Department of the State Council may grant a compulsory license to exploit an invention patent or utility model patent based on the application of an entity or individual that meets the conditions for implementation:

(1) The patentee fails to implement or fully implement the patent without justifiable reasons for three years from the date when the patent right is granted, and four years from the date of filing the patent application;

(2) The behavior of the patentee in exercising the patent right is determined 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.

2. Legal basis: Article 53 of the "Patent Law of the People's Republic of China"

2. Types of compulsory licensing of patent rights

1. Compulsory license that fails to obtain the right to use within a reasonable period of time

Under this type, the conditions that should be met are: first, the requester must have the conditions for implementation , that is, having the basic conditions for producing, manufacturing, selling patented products or using patented methods; secondly, the petitioner must have negotiated with the patentee on reasonable terms to implement the patent, and the reasonable terms are mainly about royalties. The basic obligations that both parties need to fulfill include payment and technical services; third, the petitioner failed to obtain the patentee’s permission within a reasonable period of time.

2. Compulsory license granted for national interests or public interests

In the country emergency occursUnder certain circumstances or extraordinary circumstances, or for the purpose of public interest, the patent administration department of the State Council may grant a compulsory license to implement an invention patent or utility model patent.

3. Compulsory license of dependent patents

The compulsory license of dependent patents is based on the inter-patent relationship. Granted by a dependency relationship, that is, "a patented invention or utility model is a major technological advancement of significant economic significance compared to a previously patented invention or utility model, and its implementation depends on the previous invention or utility model Implementation", in order to promote the implementation of advanced patented technology, it is necessary to grant a compulsory license to the subsequent patentee to implement the pre-patented technology. At the same time, a compulsory license should also be granted to the former patentee to implement the post-patented technology.

According to the provisions of the Patent Law, it has been three years since the patent right was granted and four years since the date of filing the patent application. The patent is not implemented for legitimate reasons; the act of exercising patent rights is deemed to be a monopoly act in accordance with the law. In order to eliminate or reduce the adverse effects of competition, the patent management department may have the right to implement compulsory licensing. I hope the above content can be helpful to you. If you have other questions, you can click the button below for consultation, or go to the Legal Savior website to consult a professional lawyer.