Units or individuals that have obtained the compulsory license for implementation do not enjoy the exclusive right of implementation, nor have the right to allow others to implement it. Compulsory license is to restrict the patentee from abusing the patent right, not to deprive others of the patent right, and the beneficiary of the license is not the patentee. If the beneficiary also has the complete rights of the patentee, it will violate the purpose of patent law to protect patents and is not conducive to the purpose of encouraging invention and creation.
Conditions for applying for cross compulsory license
The application for cross compulsory license must meet the following requirements:
1, object requirements. Cross compulsory licensing only applies to patents for inventions and utility models, not to patents for designs.
2. The latter patent must be based on the former patent and constitute a significant technological progress with great economic significance compared with the former patent.
3. The applicant must be two patentees before and after. The former patentee applying for compulsory license of the latter patent must satisfy that its patent has been compulsory licensed to the latter patentee. In addition, the compulsory license for non-patentees to obtain patents is limited by time and scope. If the reasons for compulsory license no longer exist, then the patentee may terminate the compulsory license.
General compulsory license and special compulsory license
1. General compulsory license means that if a unit with implementation conditions requests the patentee of an invention or utility model to license its patent under reasonable conditions, but fails to obtain the license within a reasonable period of time, the patent administration department of the State Council will grant the invention patent or utility model a compulsory license according to the application of the unit. To apply for a general compulsory license, the following conditions must be met:
(a) the applicant has been granted a compulsory license by a unit or individual with the implementation conditions. The unit here should be understood as a unit engaged in production and operation, and administrative units cannot apply.
(2) The object of applying for compulsory license is the invention and utility model patent, not the design patent.
(3) If the patentee fails to implement or fully implement his patent within three years from the date when the patent right is granted, or fails to exercise his patent right within four years from the date when the patent application is filed, it shall be deemed as monopolistic behavior according to law, so as to eliminate or reduce the adverse effects of this behavior on competition.
The second is the special compulsory license of patent right, which means that when there are special circumstances stipulated by law, the patent office has the right to decide to grant compulsory license to the patentee's patent for the benefit of the country and society, so as to maintain social stability and protect public interests.
Special compulsory license specifically includes:
1, the country is in a state of emergency or extraordinary situation or compulsory license for public purposes.
2. Compulsory licensing of drug patents for public health purposes.
3. Compulsory licensing of semiconductor technology.
legal ground
patent law of the people's republic of china
Article 53 Under any of the following circumstances, the administrative department for patent in the State Council may grant a compulsory license to exploit a patent for invention or utility model upon the application of a unit or individual with the conditions for implementation:
(1) It has been three years since the patent right was granted and four years since the patent application was filed, and the patentee has not implemented or not fully implemented his patent;
(2) The patentee's act of exercising the patent right is recognized as a monopolistic act according to law, so as to eliminate or reduce the adverse effects of the act on competition.
patent law of the people's republic of china
Article 56 Where an invention or utility model for which a patent right has been obtained is a major technological progress with great economic significance compared with the invention or utility model for which a patent right has been obtained before, and its implementation depends on the implementation of the previous invention or utility model, the patent administration department of the State Council may, upon the application of the latter patentee, grant a compulsory license to exploit the previous invention or utility model.
Where a compulsory license is granted in accordance with the provisions of the preceding paragraph, the administrative department for patent in the State Council may also grant a compulsory license to exploit the latter invention or utility model upon the application of the former patentee.
patent law of the people's republic of china
Article 61 A unit or individual that has obtained a compulsory license for exploitation does not enjoy the exclusive right of exploitation, and has no right to allow others to exploit it.