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Legislative Implementation of Flexibilities - African Intellectual Property Organization

Title:Articles 46-57 of the Agreement Revising the Bangui Agreement of 02/03/1977, on the Creation of an African Intellectual Property Organization (Bangui (Central African Republic), 24/02/ 1999)
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Article 46

Non-Voluntary License for Non-Working

(1) At the request of any person made after the expiry of a period of four years from the filing date of the patent application or three years from the date of grant of the patent, whichever period expires last, a non-voluntary license may be granted where one or more of the following conditions are fulfilled:

(a) the patented invention is not being worked on the territory of a member State at the time the request is made;

(b) the working of the patented invention on such territory does not meet the demand for the protected product on reasonable terms;

(c) on account of the refusal of the owner of the patent to grant licenses on reasonable commercial terms and procedures, the establishment or development of industrial or commercial activities on such territory is unfairly and substantially prejudiced.

(2) Notwithstanding the provisions of paragraph (1) above, a non-voluntary license may not be granted if the owner of the patent provides legitimate reasons for the non-working of the invention.

Article 47

Non-Voluntary License for a Dependent Patent

Where a patented invention cannot be worked without infringing the rights under an earlier patent whose owner refuses to authorize its use on reasonable commercial terms and procedures, the owner of the later patent may obtain a non-voluntary license for such use from the court on the same terms as those that apply to the non-voluntary licenses granted under Article 46 and on the following additional conditions:

(a) the invention claimed in the later patent must represent substantial technical progress, of considerable economic interest, in relation to the invention claimed in the earlier patent;

(b) the owner of the earlier patent has the right to a reciprocal license on reasonable terms for the use of the invention claimed in the later patent;

(c) the use authorized in relation to the earlier patent shall be intransferable except where the later patent is also transferred.

Article 50

Rights and Obligations of the Holder of a Non-Voluntary License

(1) After the expiry of the time limit for appeal specified in Article 52 of this Annex, or once an appeal decision has been handed down that wholly or partly upholds the decision by which the civil court granted the non-voluntary license, the grant of the latter shall authorize the licensee to exploit the patented invention according to the terms laid down in the decision of the civil court or in the appeal decision, and shall require him to pay the remuneration specified in the said decisions.

(2) The grant of a non-voluntary license shall not affect either license contracts in force or non-voluntary licenses in force and shall not preclude the conclusion of other license contracts or the grant of other non-voluntary licenses. The patentee may not however grant to other licensees more favorable terms than those of the non-voluntary license.

Article 56

Ex-Officio Licenses

(1) Where certain patents are of vital interest to the economy of the country, public health or national defense, or where non-working or insufficient working of such patents seriously compromises the satisfaction of the country's needs, they may be made subject, by an administrative enactment of the competent Minister of the member State concerned, to the non-voluntary license regime. The said enactment shall specify the beneficiary administration or organization, the conditions, term and scope of the non-voluntary license and the amount of royalties payable.

(2) In the absence of amicable agreement between the owner of the patent and the administration concerned on the said conditions, they shall be set by the civil court.

(3) Ex-officio licenses shall be subject to the same conditions as the non-voluntary licenses granted under Article 46.

Article 57

Licenses of Right

(1) Any owner of a patent not precluded by the terms of any previously registered license from granting further licenses may apply to the Organization to have, in respect of his patent, the notice “licenses of right” entered in the Register. The notice shall be entered in the Register and published by the Organization as soon as possible.

(2) The entry of such a notice in the Register shall entitle any person to obtain a license to work the said patent on terms that shall, in the absence of agreement between the parties concerned, be fixed by the civil court. It shall also cause the annual fee to be reduced.

(3) The owner of the patent may at any time apply to the Organization for cancellation of the “licenses of right” entry. If no license is in force, or if all the licensees agree to cancellation, the Organization shall cancel the entry after payment of all the annual fees that would have been payable had the entry not been made in the Register.

(4) The provisions of Article 26(1) of this Annex shall also apply to licenses of right.

(5) The beneficiary of a license of right may neither assign it nor grant sublicenses under it.

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