What is the procedure of compulsory patent licensing?

Legal analysis: 1. The applicant must submit a request to the Chinese Patent Office. Units or individuals applying for compulsory license for patent exploitation must submit a request for compulsory license to the Chinese Patent Office, and attach the supporting documents specified in this Law and the explanatory materials that the applicant has the conditions to exploit a patent for invention or utility model. According to the provisions of Article 54 of the Patent Law, it shall also provide proof that the exploitation license contract has not been signed with the patentee on reasonable terms.

2. The Patent Office examines the applicant's request. After receiving the applicant's request and relevant supporting documents, the Patent Office shall examine whether it is true or not, and shall promptly notify the patentee to state his opinions within a specified time.

3. The Patent Office shall make a corresponding decision. After listening to the opinions of the applicant and the patentee, the Patent Office shall make a decision not to allow the applicant to exploit the patent if the patentee has justified reasons not to exploit it or not to allow others to exploit it. On the contrary, the Patent Office shall make a decision to allow the applicant to exploit the patented invention or utility model.

4. The decision to implement the compulsory license shall be registered and announced, and the unit or individual that has obtained the compulsory license shall not enjoy the exclusive right to implement it. Have no right to allow others to implement it. That is, the ownership of the invention patent or utility model patent still belongs to the patentee, and the patentee still has the right to exploit its patent, and also has the right to license others to implement compulsory license, and shall pay the patentee a reasonable royalty, the amount of which shall be agreed by both parties; If both parties cannot reach an agreement, it shall be decided by the Patent Office. If the patentee refuses to accept the decision of the Patent Office on exploitation license or the ruling of compulsory license fee, he may bring a lawsuit to the people's court within 3 months from the date of receiving the notice.

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

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.

Article 54 In case of national emergency or extraordinary 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 55 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.