PATENT COMPULSORY LICENSING

Exploitation of monopoly rights granted under patent protection is common all over the world. It mainly takes place due to –

  • Imposition of unreasonable terms or restrictive condition on the use, sale or lease of the patented product.
  • Refusal to grant license to work locally.

The license is where a patent owner i.e. licensor gives another person, the third party i.e. licensee, the permit to use that invention legally for commercial purpose. However, the license gets the permission to use the patent right; the licensor continues to be the owner of that product.

The objective of licensing is to prevent “abuse of monopoly” granted by the patent. Any person can apply for licensing only after 3 years from the date of granting the patent. Licensing is to be granted on the following grounds:

  • Patented invention has not worked or available in India
  • Patented invention at a higher price
  • Patented invention have not been satisfied as per the requirement of the public i.e. utility have not been satisfied.

The authority of granting compulsory licensing or revocation of the patent for non-working is in the hands of the Controller of patents. One of the main criteria that a patent is granted in India is that the invention shall be used for commercial purposes and scale. Failure to fulfil such obligation may result to granting of compulsory license on the revocation of patent.

Revocation of patent may be granted by the Controller of patent, after expiry of 2 years from the date of granting compulsory licensing,  only if the Controller is satisfied that the patented invention has not been worked in India or the utility of the patented invention have not been satisfied.

Compulsory license is granted in case of manufacture and export of pharmaceutical products, to any country facing a public health problem.

Compulsory license may be terminated in case if the Controller feels that if the conditions for grant of license are not fulfilled.

PROCEDURE OF LICENSING [RULE 96-102]

An application to the Controller for compulsory licensing or revocation of patent shall be in the Form 17 or Form 19, respectively. Except in case the applicant is Central government, the applicant shall set out the details of the applicant including terms and conditions of the license. After considering the evidences, terms and conditions, if the controller is not satisfied with the prima facia of the case, he shall notify the applicant for hearing within 2 months from the date of such notification, the Controller has the power to refuse such application. It is after hearing, the Controller shall make a decision whether the application shall be preceded or refused.