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Compulsory Licensing

 

Compulsory licensing is a system whereby the Government allows third parties (other than the patent holder) to produce and market a patented product or process without the consent of the patent owner.

 

Grounds for grant of Compulsory license:

 

  • That the reasonable requirements of public have not been satisfied, or

  • That the patented invention is not available to the public at reasonably affordable price, or

  • That the patented invention is not worked in the territory of India.

  • There is a national emergency;

  • There is an extreme urgency; or

  • There is public non-commercial use.

 

Procedure for grant of Compulsory license:

 

AT THE APPLICANT'S END

  •  

  • Any person interested may make an application to the Controller for grant of Compulsory License for a patent after the expiry of three years from the date of grant

  • Such an application shall contain:

  • a statement setting out the nature of the applicants interest

  • the facts upon which the application is based

  • the terms and conditions of the license the applicant is willing to accept.

 

AT THE CONTROLLER'S END

 

In considering such an application, the Controller shall take into account:

 

  • the nature of the invention, the time which has elapsed since the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention;

  • the ability of the applicant to work the invention to the public advantage;

  • the capacity of the applicant to undertake the risk in providing capital and working the invention

  • as to whether the applicant has made efforts to obtain a license from the patentee on reasonable terms and conditions and such efforts have not been successful.

 

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