Legislative Implementation of Flexibilities - Republic of Moldova

Title:	Articles 28-29 of the Law on the Protection of Inventions No.50-XVI of 07/03/2008
Field of IP:	Patents
Type of flexibility:	Compulsory licenses and government use
Summary table:

Provisions of Law

Article 28 - Compulsory License
(1) If after the expiration of a period of 4 years from the day of filing of the patent application or 3 years from the grant of the patent, whichever is later, the patent owner has not exploited the patent in the territory of the Republic of Moldova or if he has not undertaken serious and effective preparations for such purpose, the courts may grant a compulsory license, on request, to any interested person, unless the patent owner justifies the lack or insufficiency of exploitation. No distinction shall be made between the domestic products or imported products for the purposes of establishing the fact of the lack of exploitation or insufficient exploitation of the patent.
(2) A compulsory license shall be granted solely where the proposed user has made efforts
to obtain authorization from the patent owner on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived in the cases referred to in paragraph (3) below.
In such cases, the patent owner shall be notified as soon as reasonable practicable.

(3) A compulsory license may be granted in the case of national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.

(4) In the case of semiconductor technology, a compulsory license may only be granted for
public non-commercial use or to remedy a practice, determined after judicial or administrative process to be anti-competitive.

(5) A compulsory license may be granted to a patent owner or an owner of a plant variety patent who cannot exploit his invention or protected plant variety (the second patent)
without infringing another patent (the first patent), provided the invention or plant variety claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent. The court shall have the authority to review the existence of these circumstances. In the case of a compulsory license in respect of a patent for an invention or a patent for a plant variety, the owner of the first patent shall be entitled to a cross-license on reasonable terms to use the patented invention or the protected plant variety.

(6) The respective methods and procedures for the implementation of principles contained in this article are laid down in the Regulations.

Article 29 - Conditions Applicable to Compulsory Licenses
(1) At the time of grant of a compulsory license to exploit the patent under Article 28 above, the court shall specify the types of use covered by such license and the terms and conditions to be observed. The following conditions shall apply:
a) the scope and duration of such use shall be limited to the purpose for which it was authorized;
b) such use shall be non-exclusive;
c) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;
d) any such use shall be authorized predominantly for the supply of the domestic market, except where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive;
e) a court may authorize, upon motivated request, that authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur The judicial authority shall have the authority to refuse termination of authorization if and where the circumstances which led to such authorization are likely to recur;
f) the license holder shall pay the patent owner an adequate remuneration, taking into account the economic value of the authorization and, eventually, the need to remedy an anti-competitive practice;
g) in case of a compulsory license for a dependent patent or a plant variety patent, the use authorized in respect of the first patent shall be non-assignable, except with the assignment of the second patent.
(2) The legal validity of any decision relating to the authorization of use referred to in paragraph (1) and any other decision relating to the remuneration provided for in respect of such use shall be subject to judicial review or other independent review by a higher authority.

(3) The holder of the license shall notify the AGEPI the decision of the judicial authority
to grant or, where appropriate, to terminate a compulsory license. The Agency shall
enter the court decision in the National Register of Patents and publish it in BOPI.

(4) If the holder of a compulsory license has not undertaken any effective and serious
preparation for exploiting the invention within one year following grant of the license,
the compulsory license may be cancelled by the decision of the court. In any event, a
compulsory license shall terminate if its holder has not begun exploitation of the
invention within 2 years following the date on which the license was granted to him.