Section 48

Compulsory licences: general

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48.-(1) At any time after the expiration of three years, or of such other period as may be prescribed, from the date of the grant of a patent, any person may apply to the comptroller on one or more of the relevant grounds -

  • (a) for a licence under the patent;
  • (b) for an entry to be made in the register to the effect that licences under the patent are to be available as of right; or
  • (c) where the applicant is a government department, for the grant to any person specified in the application of a licence under the patent.

(2) Subject to [sections 48A] and 48B below, if he is satisfied that any of the relevant grounds are established, the comptroller may -

  • (a) where the application is under subsection (1)(a) above, order the grant of a licence to the applicant on such terms as the comptroller thinks fit;
  • (b) where the application is under subsection (1)(b) above, make such an entry as is there mentioned;
  • (c) where the application is under subsection (1)(c) above, order the grant of a licence to the person specified in the application on such terms as the comptroller thinks fit.

(3) An application may be made under this section in respect of a patent even though the applicant is already the holder of a licence under the patent; and no person shall be estopped or barred from alleging any of the matters specified in the relevant grounds by reason of any admission made by him, whether in such a licence or otherwise, or by reason of his having accepted a licence.

(4) In this section "the relevant grounds" means -

  • (a) in the case of an application made in respect of a patent whose proprietor is a WTO proprietor, the grounds set out in section 48A(1) below;
  • (b) in any other case, the grounds set out in section 48B(1) below.

(5) A proprietor is a WTO proprietor for the purposes of this section and sections 48A, 48B, 50 and 52 below if -

  • (a) he is a national of, or is domiciled in, a country which is a member of the World Trade Organisation; or
  • (b) he has a real and effective industrial or commercial establishment in such a country.

(6) A rule prescribing any such other period under subsection (1) above shall not be made unless a draft of the rule has been laid before, and approved by resolution of, each House of Parliament.

Notes:
Manual of Patent Practice
EC law of exhaustion of rights does not apply for compulsory licences - Pharmon v Hoechst

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