What are the conditions and procedures for implementing compulsory licensing of patents?
1. Implementing compulsory licensing Conditions for my country's Patent Law stipulates: When a unit with the conditions for implementation requests the holder of an invention or utility model patent for permission to exploit its patent under reasonable conditions, but fails to obtain such permission within a reasonable period of time, the Patent Administration Department of the State Council shall Based on the unit's application, a compulsory license to implement the invention patent or utility model patent may be granted.
Specifically, 1. It must be a unit that meets the conditions; such as capital, technology, equipment, factories, technical personnel, etc. Only units that meet these conditions are eligible to apply to exploit the patents of others.
2. The invention or utility model patentee must be asked for permission to exploit his patent under reasonable conditions. Requesting permission to exploit one's patent is actually an exchange relationship. The principles of fairness, equal compensation and economic laws should be followed, and a third party should judge whether it is a reasonable condition from a fair and reasonable standpoint.
3. Failure to obtain the patentee's permission within a reasonable period of time.
2. Procedures for Compulsory License for Patent Implementation Any unit or individual other than a patent right that wants to apply for a compulsory license needs to comply with the following procedures stipulated in the Patent Law.
1. The applicant must submit a request to the China Patent Office. The unit or individual applying for a compulsory license to implement a patent must submit a "Compulsory License" to the China Patent Office. "Request", the request must be accompanied by supporting documents stipulated in this Law and explanatory materials that the applicant has the conditions to implement the invention patent or utility model patent. Proof of failure to sign an implementation license contract with the patentee on reasonable terms should also be provided in accordance with the provisions of Patent Law 54.
2. The Patent Office shall examine the applicant's request. After receiving the applicant's request and relevant certificates, the Patent Office shall examine whether the request and relevant certificates are true, and shall promptly notify the patentee to state his opinions within the designated time.
3. The Patent Office shall make a corresponding decision. After listening to the opinions of both the applicant and the patentee, the Patent Office shall make a disallowance if the patentee has legitimate reasons for not exploiting or permitting others to exploit the patent. The applicant shall make a decision to enforce the patented invention or utility model; otherwise, the Patent Office shall make a decision to allow the applicant to enforce the patented invention or utility model.
4. "Compulsory license" "The decision shall be registered and announced". The unit or individual who has obtained the compulsory license does not enjoy the exclusive right to implement it. It has no right to allow others to implement it. That is to say, all the invention patents or utility model patents still belong to the patentee, and the patent If the patentee still has the right to exploit his patent and also has the right to permit others to implement the compulsory license, the unit or individual shall pay the patentee a reasonable royalty, the amount of which shall be agreed upon by both parties; if the two parties cannot reach an agreement, the Patent Office shall make a decision. .
The above are the editor’s answers to relevant questions. If you need to know more about legal knowledge, you are welcome to enter the Legal Savior Network for legal consultation.
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