1. Who can make compulsory patent licenses
1. span style="text-indent: 32px;">Compulsory patent licenses are issued by the Patent Administration Department of the State Council.
2. Legal basis "Patent Law of the People's Republic of China"
Art. Article 53 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 his patent without justifiable reasons for three years from the date when 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 deemed to be a monopoly behavior in accordance with the law, and it is necessary 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 of the State Council shall The department may grant a compulsory license to implement an invention patent or utility model patent.
Article 55: For public health purposes, the patent administration department of the State Council may manufacture and export drugs that have obtained patent rights to countries that comply with the requirements of the People's Republic of China. Compulsory licenses provided by countries or regions that are parties to relevant international treaties.
2. How to apply for compulsory license of a patent adjudication
1. The petitioner applies to the National Intellectual Property The Bureau submits a request and pays the compulsory license fee ruling request fee from the date of filing the request; if the fee is not paid within the time limit or is not paid in full, the request will be deemed not to have been made.
2. For requests for adjudication of compulsory license royalties that comply with the regulations, the State Intellectual Property Office shall send a copy of the request to the other party, and the other party shall state its opinions within the specified time limit. Failure to respond within the time limit shall not affect The State Intellectual Property Office makes a decision; during the compulsory license royalty adjudication process, both parties may submit written opinions. The State Intellectual Property Office may listen to the oral opinions of both parties based on the needs of the case.
3. The requester may withdraw its request for adjudication at any time. If the requester withdraws its request for adjudication before the State Intellectual Property Office makes a decision, the adjudication procedure will be terminated.
4. The State Intellectual Property Office shall make an adjudication decision on the compulsory license fee within the date of receipt of the request, and shall promptly notify both parties of the decision on the compulsory license fee.
5. If the patentee and the unit or individual who obtained the compulsory license are dissatisfied with the ruling on the compulsory license royalties, they may file a lawsuit with the People's Court from the date of receipt of the notice.
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