PATENT LICENSING

COMPULSORY LICENSING

Compulsory licensing is a significant aspect of the Indian Patents Act 1970 and occurs when the government grants permission to another to produce an invention that is already patented without the consent of the patentee. The first such example of this in India was in 2012 to the Natco Pharma Company for a drug also called Natco Pharma. An application for same can be made only after 3 years of a patent being awarded and mustfulfil the following criteria:-

  • the reasonable requirements of the public with respect to the patented invention have not been satisfied; or
  • that the patented invention is not available to the public at a reasonable price; or
  • That the patented invention is not worked in the territory of India.
  • The nature of invention;
  • The time elapsed, since the sealing of the patent;
  • The measures already taken by the patentee or the 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, if the application for compulsory license is granted;
  • As to the fact whether the applicant has made efforts to obtain a license from the patentee on reasonable terms and conditions;
  • National emergency or other circumstances of extreme urgency;
  • Public non- commercial use;
  • Establishment of a ground of anti-competitive practices adopted by the patentee.
  • The grant of compulsory license cannot be claimed as a matter of right, as the same is to the fulfilment of above conditions and discretion of the Controller of Patents.