The role of compulsory license in patent law

Legal analysis: 1. Three years have elapsed since the patent right was granted, and four years have elapsed since the patent application was filed, and the patentee has not exploited or not fully exploited the patent.

2. The patentee's behavior of exercising the patent right is recognized as monopolistic behavior according to law, in order to eliminate or reduce the adverse effects of this behavior on competitors.

3. For the purpose of public health, the patent administration department in the State Council may grant compulsory license to produce and export the patented drug to countries or regions that meet the requirements of relevant international treaties to which People's Republic of China (PRC) is a party.

Legal basis: People's Republic of China (PRC) Patent Law.

Article 48 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) The patentee fails to exploit or fully exploit his patent for three years from the date of the grant of the patent right and four years from the date of the patent application without justifiable reasons.

(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.

Article 49 In case of national emergency or special circumstances, or for the purpose of public interest, the patent administration department in the State Council may grant a compulsory license to exploit a patent for invention or utility model.

Article 51 Where the invention or utility model for which a patent right has been granted is a significant technological progress with great economic significance compared with the invention or utility model previously granted with a patent right, 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.