The patent administration department in the State Council may directly allow the applicant to exploit the invention patent or utility model patent through administrative application procedures without the consent of the patentee, and issue a compulsory license to exploit the related patent. The establishment of this system is to prevent the patentee from abusing the patent right, hinder the scientific progress, and harm the interests of the country or nation. It is a system that restricts the patent right.
Compulsory license is relative to the patentee's voluntary license. Voluntary licensing means that the patentee considers his own interests and signs a patent licensing contract with the licensee, allowing the licensee to exploit his invention patent or utility model patent. As a licensor, the patentee can get greater economic benefits in the performance of the patent licensing contract, and the licensee is also profitable. Compulsory license is against the will of the patentee, which is to force the patentee to allow others to use his patent by state administrative power.
The implementation of compulsory license needs to meet certain conditions. Compulsory license mainly has the following types:
(1) Conditions to be observed in general compulsory licensing.
First, qualified units, such as capital, technology, equipment, factories and technicians. Only units with these conditions are eligible to apply for the exploitation of other people's patents. Second, the patentee of an invention or utility model must be required to license the exploitation of his patent under reasonable conditions. In fact, requesting permission to exploit its patent is an exchange relationship, which should abide by the principles of fairness, equal compensation and economic law, and judge whether it is a reasonable condition with a third party from a fair and reasonable standpoint. Third, the patentee's permission was not obtained within a reasonable period of time.
(2) Compulsory license in case of national emergency.
State of emergency generally refers to the occurrence of war, social unrest, natural disasters and serious economic crisis. Although the patent right is the exclusive right or exclusive right enjoyed by the patentee according to law, the interests of the patentee should be subordinate to the interests of the country and the nation.
(3) Compulsory licensing of subordinate patents
Compulsory licensing of subordinate patents refers to the compulsory licensing system that is beneficial to the development of science and technology according to the interdependence between patents. This license is also called "cross-licensing".