The patent compulsory licensing system refers to a system in which the patent authority compels the patentee to license others to exploit the patent in accordance with legal provisions.
According to the relevant provisions of China's "Patent Law", the patent compulsory licensing system mainly involves the following legal provisions:
Article 48 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 has failed to implement or fully implement the patent without justifiable reasons for three years from the date the patent right was granted and four years from the date of filing the patent application.
(2) The patentee's behavior in exercising the patent right is determined to be a monopoly behavior in accordance with the law, in order 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 model for implementation Compulsory licensing of patents.
Article 50: For public health purposes, the patent administration department of the State Council may authorize the manufacture and export of medicines that have obtained patent rights to countries that are eligible for the participation of the People's Republic of China. Compulsory licenses stipulated in relevant international treaties by countries or regions.
Article 51: A patented invention or utility model is a major technological advancement of significant economic significance compared with a previously patented invention or utility model. , and its implementation depends on the implementation of the previous invention or utility model, the patent administration department of the State Council may grant a compulsory license to implement the previous invention or utility model based on the application of the latter patentee.
Compulsory license for utility models.
If the invention and creation involved in the compulsory license in Article 52 is semiconductor technology, its implementation shall be limited to the purpose of public interest and Article 48 (2) of this Law. ).
Article 53 Except for compulsory licenses granted in accordance with Article 48 (2) and Article 50 of this Law, compulsory licenses shall be implemented mainly for the purpose of supplying the domestic market .
Article 54 An entity or individual applying for a compulsory license in accordance with Article 48 (1) and Article 51 of this Law shall provide Evidence proving that it requested the patentee’s permission to exploit the patent on reasonable terms but failed to obtain the permission within a reasonable time.
Article 55: When the patent administration department of the State Council makes a decision to grant a compulsory license, the patentee shall be notified in a timely manner, 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. When the reasons for compulsory licensing are eliminated and no longer occur, the patent administration department of the State Council shall make a decision to terminate the compulsory license based on the request of the patentee and after review.
Article 56 A unit or individual that has obtained a compulsory license for implementation does not enjoy the exclusive right to implement it and has no right to allow others to implement it.
Article 57 The unit or individual that obtains the compulsory license shall pay the patentee a reasonable royalty, or in accordance with the relevant international treaties to which the People's Republic of China is a party. The provisions deal with the issue of royalties. If royalties are paid, the amount shall be negotiated by both parties; if the two parties cannot reach an agreement, the patent administration department of the State Council shall make a ruling.
Article 58 If the patentee is dissatisfied with the decision of the Patent Administration Department of the State Council on the implementation of compulsory license, the patentee and the unit or individual who obtained the compulsory license shall If you are dissatisfied with the ruling of the Patent Administration Department of the State Council on the royalties for implementing compulsory licenses, you may file a lawsuit in the People's Court within three months from the date of receipt of the notice.
