1. What are the types of compulsory license for patent implementation?
1, general compulsory license
Article 48 of the Patent Law of People's Republic of China (PRC) stipulates that 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 implementation conditions.
(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.
To apply for a general license, you must meet the following conditions:
First, the applicant is granted a compulsory license by a unit or individual that has the conditions for implementation. The units here should be understood as units engaged in production and operation, and administrative units cannot be applied; Compared with the original patent law, the new law allows individuals to apply for compulsory license under the implementation conditions.
Second, the object of applying for compulsory license is the invention and utility model patent, not the design patent. Because the design patent is only the shape, color, pattern and their mutual combination of products, the difference between it and the invention and utility model patent is that the design is the content of form and can be replaced by others, while the invention and utility model are the internal essential contents and cannot be reasonably replaced.
Third, if the patentee fails to implement or not fully implement his patent for three years from the date of granting the patent right or four years from the date of filing the patent application, or the patentee exercises the patent right, it shall be deemed as monopolistic behavior according to law, so as to eliminate or reduce the adverse impact of this behavior on competition.
2. Special compulsory license
Special compulsory license specifically includes:
(1) Compulsory license in case of national emergency or extraordinary circumstances or for public purposes.
Article 49 of the Patent Law of People's Republic of China (PRC) stipulates that in case of national emergency or special circumstances, or for the purpose of public interest, the patent administration department of the State Council may grant a compulsory license to exploit the invention patent or utility model patent.
(2) Compulsory licensing of drug patents for public health purposes.
Article 50 of the Patent Law of People's Republic of China (PRC) stipulates that, 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 semiconductor technology
Article 52 of the Patent Law of People's Republic of China (PRC) restricts the compulsory license of the invention-creation involved to semiconductor technology, and its implementation is limited to the purpose of public interest and the situation that the patentee's act of exercising the patent right is legally recognized as a monopolistic act, so as to eliminate or reduce the adverse impact of this act on competition.
3. Cross compulsory licensing
To apply for cross compulsory license, the following conditions are required:
First, the applicable objects can only be inventions and utility models;
Second, the implementation of the latter patent depends on the implementation of the previous patent, and the latter patent constitutes a major technological progress with great economic significance compared with the previous patent.
Third, 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 general, no one has the right to use the patent right without the consent of the patentee. The compulsory licensing of these types of patents stipulated by the national legal system will basically have no corresponding impact on the patentee.