Compulsory patent license, also known as involuntary license, refers to an administrative measure that the patent administrative department of the State Council directly permits an applicant with the implementation conditions to exploit a patent for invention or utility model without the consent of the patentee according to law. Its purpose is to promote the implementation of patented inventions, prevent patentees from abusing patent rights, and safeguard national interests and social public interests.
2. What are the types of compulsory patent licensing?
China's patent law divides compulsory licensing into three categories:
1. Compulsory license for patent abuse. Under any of the following circumstances, the the State Council Patent Administration Department may grant a compulsory license to exploit the invention patent or utility model patent upon the application of a unit or individual with the conditions for exploitation: (1) The patentee has not exploited or fully exploited his patent for four years since the date of patent application without justifiable reasons. The unit or individual applying for compulsory license shall provide evidence to prove that it requested the patentee to license it to exploit the patent under reasonable conditions, but failed to obtain the license within a reasonable time. (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.
2. Give compulsory license according to the needs of public interest. In case of national emergency or special circumstances, or for the purpose of public interest, the administrative department for patent in the State Council may grant a compulsory license to exploit a patent for invention or utility model. For the purpose of public health, the patent administration department of the State Council may grant compulsory licenses for the manufacture and export of patented drugs to countries or regions that meet the requirements of relevant international treaties to which People's Republic of China (PRC) is a party.
3. Compulsory licensing of subordinate patents. If a patented invention or utility model is a major technological progress with great economic significance compared with the previous patented invention or utility model, and its implementation depends on the implementation of the previous invention or utility model, the patent administration department in the State Council may, upon the application of the latter patentee, grant a compulsory license for the implementation of 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.