The Measures for Compulsory License of Patent Implementation enters into force on 1 May 2012.
There are 43 articles in total, which aims at stipulating the procedures for grant, fee adjudication and termination of compulsory license for invention patent or utility model patent (hereinafter referred to as “compulsory license”).
The key points are as follows:
The State Intellectual Property Office may after examination grant a compulsory license for the exploitation of invention patent or utility model patent according to the application of relevant entities.
If the patentee fails to exploit or fully exploit his or her patent without justifiable reasons within 3 years from the date of grant of the patent right and 4 years from the date of filing the patent application, the entity or individual with the conditions for exploitation (“the qualified subject”) may apply for compulsory license.
If the patentee’s act of exercising the patent right is recognized as monopoly according to law, in order to eliminate or reduce the adverse impact of the act on competition, the qualified subject can apply for compulsory license.
In the event of a state emergency or extreme circumstance, or for the purpose of public interest, the relevant competent department of the State Council may suggest that the State Intellectual Property Office grant a qualified entity or individual the compulsory license.
For the purpose of public health, a qualified entity or individual may request a compulsory license to manufacture a patented drug and export it to a specific country or region.
Where an invention or utility model for which a patent right has been granted has a significant technical progress with significant economic significance compared with an invention or utility model which has already been obtained a patent right, and its implementation depends on the implementation of the previous invention or utility model, the patentee may request a compulsory license to implement the previous patent. Where the State Intellectual Property Office grants a compulsory license to exploit the previous patent, the former patentee may also request for a compulsory license to exploit the latter patent.
If a foreigner, foreign enterprise or any other foreign organization that does not have a habitual residence or business office in China handles the compulsory license affairs, it shall entrust a patent agency duly established according to law to handle the matter.