Legislative Implementation of Flexibilities - Guyana
| Title: | Sections 33 and 34 of the Patents and Designs Act - Cap. 90:03 of 1937 (current version of 1972) |
| Field of IP: | Patents |
| Type of flexibility: | Security exceptions |
| Summary table: |  |
Provisions of Law
Right of State to use patented inventions
33. (1) A patent shall have to all intents the like effect as against the State as it has against a citizen: Provided that any Government department may, by themselves or by such of their agents, contractors, or others as may be authorized in writing by them at any time after the application, make, use or exercise the invention for the services of the State on such terms as may, either before or after the use thereof, be agreed on, with the approval of the Minister responsible for such department, between the department and the patentee, or, in default of agreement, as may be settled in the manner hereinafter provided. And the terms of any agreement or licence concluded between the inventor or patentee and any person other ll1.an a Government department, shall be inoperative so far as concerns the making, use or exercise of the invention for the service of the State:
Provided further that, where an invention which is the subject of any patent has, before the date of the patent, been duly recorded in a document by, or tried by or on behalf of, any Government department (such invention not having been communicated directly or indirectly by the applicant for the patent or the patentee), any Government department, or such of their agents, contractors, or others as may be authorised in writing by them, may make, use and exercise the invention so recorded or tried for the service of the State free of any royalty or other payment to the patentee, notwithstanding the existence of the patent. If in the opinion of the department the disclosure to the applicant or the patentee, as the case may be, of the document recording the invention, or the evidence of the trial thereof, if required, would be detrimental to the public interest, it may be made confidentially to counsel on behalf of the applicant or patentee, or to any independent expert mutually agreed upon.
(2) The power of a Government department under subsection (1) to make, use or exercise an invention for the services of the State shall include power during any war period to make, use, exercise or vend an invention, upon such terms as are mentioned in the said subsection (1), for any purpose which appears to the department necessary or expedient for the efficient prosecution of any war in which the Government may be engaged or for the maintenance of supplies and services essential to the life of the community; and the terms of any such agreement or licence as is mentioned in the said subsection (1) shall be inoperative so far as concerns the making, use, exercise or vending of an invention under this subsection as they are inoperative so far as concerns the making, use or exercise of an invention under that subsection.
(3) For the purposes of subsection (2) the expression "'war period" means any period beginning with such date as may be declared by order of the Minister responsible for defence to be the commencement, and ending with such date as may be so declared to be the termination, of a war period for the purpose of this section; and nothing in subsection (5) of this section shall affect the right to vend an invention conferred by subsection (2).
(4) In case of any dispute as to the making use, exercise or vending of an invention under this section, or the terms therefor, or as to the existence or scope of any record or trial. as aforesaid, the matter shall be referred to the Court for decision, which shall have power to refer the whole matter or any question or issue of fact arising thereon to be tried before an arbitrator upon such terms as it may direct. The Court or arbitrator, as the case may be, may, with the consent of the parties, take into consideration the validity of the patent for the purposes only of the reference and for the determination of the issues between the applicant and such Government department.
The Court or arbitrator further in settling the terms as aforesaid, shall be entitled to take into consideration any benefit or compensation which the patentee, or any other person interested in the patent, may have received directly or indirectly from the State or from any Government department in respect of such patent.
(5) The right to use an invention for the services of the State under this section or any provisions for which this section is substituted shall include, and shall be deemed always to have included, the power to sell any articles made in pursuance of such right which are no longer required for the services of the State.
(6) A purchaser of any article sold in pursuance of subsection (2) or subsection (5), and any person claiming through him, shall have, and be deemed always to have had, power to deal with the articles in like manner as if the patent for the invention were held on behalf of the State.
(7) Nothing in this section shall affect the right of the State or of any person deriving title directly or indirectly from the State to sell or use any articles forfeited under the laws relating to the customs or excise.
Assignment to Minister of certain inventions
34. (1) The inventor of any improvement in instruments or munitions of war may (either for or without valuable consideration) assign to the Minister on behalf of the State all the benefit of the invention and of any patent obtained or to be obtained for the invention; and the Minister may be a party to the assignment.
(2) The assignment shall effectually vest the benefit of the invention and patent in the Minister on behalf of the State and all covenants and agreements therein contained for keeping the invention secret and otherwise shall be valid and effectual (notwithstanding any want of valuable consideration), and may be enforced accordingly by the Minister.
(3) Where any such assignment has been made, the Minister may at any time before the publication of the complete specification certify to the Registrar that, in the interest of the public service, the particulars of the invention and of the manner in which it is to be performed should be kept secret.
(4) If the Minister so certify the application and specifications, with the drawings (if any), and any amendment of the complete specification, and any copies of such documents and drawings shall, instead of being left in the ordinary manner at the Patent Office, be delivered to the Registrar in a packet sealed by authority of the Minister.
(5) The packet shall, until the expiration of the term during which a patent for the invention may be in force, be kept sealed by the Registrar, and shall not be opened save under the authority of an order of the Minister.
(6) The sealed packet shall be delivered at any time during the continuance of the patent to any person authorised by the Minister to receive it, and shall if returned to the Registrar be again kept sealed by him.
(7) On the expiration of the term of the patent, the sealed packet shall be delivered to the Minister.
(8) Where the Minister certifies as aforesaid, after an application for a patent has been left at the Patent Office, but before the publication of the complete specification, the application and specifications, with the drawings- (if any), shall be forthwith placed in a packet sealed by authority of the Registrar, and the packet shall be subject to the foregoing provisions respecting a packet sealed by authority of the Minister.
Right of State to use patented inventions
33. (1) A patent shall have to all intents the like effect as against the State as it has against a citizen: Provided that any Government department may, by themselves or by such of their agents, contractors, or others as may be authorized in writing by them at any time after the application, make, use or exercise the invention for the services of the State on such terms as may, either before or after the use thereof, be agreed on, with the approval of the Minister responsible for such department, between the department and the patentee, or, in default of agreement, as may be settled in the manner hereinafter provided. And the terms of any agreement or licence concluded between the inventor or patentee and any person other ll1.an a Government department, shall be inoperative so far as concerns the making, use or exercise of the invention for the service of the State:
Provided further that, where an invention which is the subject of any patent has, before the date of the patent, been duly recorded in a document by, or tried by or on behalf of, any Government department (such invention not having been communicated directly or indirectly by the applicant for the patent or the patentee), any Government department, or such of their agents, contractors, or others as may be authorised in writing by them, may make, use and exercise the invention so recorded or tried for the service of the State free of any royalty or other payment to the patentee, notwithstanding the existence of the patent. If in the opinion of the department the disclosure to the applicant or the patentee, as the case may be, of the document recording the invention, or the evidence of the trial thereof, if required, would be detrimental to the public interest, it may be made confidentially to counsel on behalf of the applicant or patentee, or to any independent expert mutually agreed upon.
(2) The power of a Government department under subsection (1) to make, use or exercise an invention for the services of the State shall include power during any war period to make, use, exercise or vend an invention, upon such terms as are mentioned in the said subsection (1), for any purpose which appears to the department necessary or expedient for the efficient prosecution of any war in which the Government may be engaged or for the maintenance of supplies and services essential to the life of the community; and the terms of any such agreement or licence as is mentioned in the said subsection (1) shall be inoperative so far as concerns the making, use, exercise or vending of an invention under this subsection as they are inoperative so far as concerns the making, use or exercise of an invention under that subsection.
(3) For the purposes of subsection (2) the expression "'war period" means any period beginning with such date as may be declared by order of the Minister responsible for defence to be the commencement, and ending with such date as may be so declared to be the termination, of a war period for the purpose of this section; and nothing in subsection (5) of this section shall affect the right to vend an invention conferred by subsection (2).
(4) In case of any dispute as to the making use, exercise or vending of an invention under this section, or the terms therefor, or as to the existence or scope of any record or trial. as aforesaid, the matter shall be referred to the Court for decision, which shall have power to refer the whole matter or any question or issue of fact arising thereon to be tried before an arbitrator upon such terms as it may direct. The Court or arbitrator, as the case may be, may, with the consent of the parties, take into consideration the validity of the patent for the purposes only of the reference and for the determination of the issues between the applicant and such Government department.
The Court or arbitrator further in settling the terms as aforesaid, shall be entitled to take into consideration any benefit or compensation which the patentee, or any other person interested in the patent, may have received directly or indirectly from the State or from any Government department in respect of such patent.
(5) The right to use an invention for the services of the State under this section or any provisions for which this section is substituted shall include, and shall be deemed always to have included, the power to sell any articles made in pursuance of such right which are no longer required for the services of the State.
(6) A purchaser of any article sold in pursuance of subsection (2) or subsection (5), and any person claiming through him, shall have, and be deemed always to have had, power to deal with the articles in like manner as if the patent for the invention were held on behalf of the State.
(7) Nothing in this section shall affect the right of the State or of any person deriving title directly or indirectly from the State to sell or use any articles forfeited under the laws relating to the customs or excise.
Assignment to Minister of certain inventions
34. (1) The inventor of any improvement in instruments or munitions of war may (either for or without valuable consideration) assign to the Minister on behalf of the State all the benefit of the invention and of any patent obtained or to be obtained for the invention; and the Minister may be a party to the assignment.
(2) The assignment shall effectually vest the benefit of the invention and patent in the Minister on behalf of the State and all covenants and agreements therein contained for keeping the invention secret and otherwise shall be valid and effectual (notwithstanding any want of valuable consideration), and may be enforced accordingly by the Minister.
(3) Where any such assignment has been made, the Minister may at any time before the publication of the complete specification certify to the Registrar that, in the interest of the public service, the particulars of the invention and of the manner in which it is to be performed should be kept secret.
(4) If the Minister so certify the application and specifications, with the drawings (if any), and any amendment of the complete specification, and any copies of such documents and drawings shall, instead of being left in the ordinary manner at the Patent Office, be delivered to the Registrar in a packet sealed by authority of the Minister.
(5) The packet shall, until the expiration of the term during which a patent for the invention may be in force, be kept sealed by the Registrar, and shall not be opened save under the authority of an order of the Minister.
(6) The sealed packet shall be delivered at any time during the continuance of the patent to any person authorised by the Minister to receive it, and shall if returned to the Registrar be again kept sealed by him.
(7) On the expiration of the term of the patent, the sealed packet shall be delivered to the Minister.
(8) Where the Minister certifies as aforesaid, after an application for a patent has been left at the Patent Office, but before the publication of the complete specification, the application and specifications, with the drawings- (if any), shall be forthwith placed in a packet sealed by authority of the Registrar, and the packet shall be subject to the foregoing provisions respecting a packet sealed by authority of the Minister.
Right of State to use patented inventions
33. (1) A patent shall have to all intents the like effect as against the State as it has against a citizen: Provided that any Government department may, by themselves or by such of their agents, contractors, or others as may be authorized in writing by them at any time after the application, make, use or exercise the invention for the services of the State on such terms as may, either before or after the use thereof, be agreed on, with the approval of the Minister responsible for such department, between the department and the patentee, or, in default of agreement, as may be settled in the manner hereinafter provided. And the terms of any agreement or licence concluded between the inventor or patentee and any person other ll1.an a Government department, shall be inoperative so far as concerns the making, use or exercise of the invention for the service of the State:
Provided further that, where an invention which is the subject of any patent has, before the date of the patent, been duly recorded in a document by, or tried by or on behalf of, any Government department (such invention not having been communicated directly or indirectly by the applicant for the patent or the patentee), any Government department, or such of their agents, contractors, or others as may be authorised in writing by them, may make, use and exercise the invention so recorded or tried for the service of the State free of any royalty or other payment to the patentee, notwithstanding the existence of the patent. If in the opinion of the department the disclosure to the applicant or the patentee, as the case may be, of the document recording the invention, or the evidence of the trial thereof, if required, would be detrimental to the public interest, it may be made confidentially to counsel on behalf of the applicant or patentee, or to any independent expert mutually agreed upon.
(2) The power of a Government department under subsection (1) to make, use or exercise an invention for the services of the State shall include power during any war period to make, use, exercise or vend an invention, upon such terms as are mentioned in the said subsection (1), for any purpose which appears to the department necessary or expedient for the efficient prosecution of any war in which the Government may be engaged or for the maintenance of supplies and services essential to the life of the community; and the terms of any such agreement or licence as is mentioned in the said subsection (1) shall be inoperative so far as concerns the making, use, exercise or vending of an invention under this subsection as they are inoperative so far as concerns the making, use or exercise of an invention under that subsection.
(3) For the purposes of subsection (2) the expression "'war period" means any period beginning with such date as may be declared by order of the Minister responsible for defence to be the commencement, and ending with such date as may be so declared to be the termination, of a war period for the purpose of this section; and nothing in subsection (5) of this section shall affect the right to vend an invention conferred by subsection (2).
(4) In case of any dispute as to the making use, exercise or vending of an invention under this section, or the terms therefor, or as to the existence or scope of any record or trial. as aforesaid, the matter shall be referred to the Court for decision, which shall have power to refer the whole matter or any question or issue of fact arising thereon to be tried before an arbitrator upon such terms as it may direct. The Court or arbitrator, as the case may be, may, with the consent of the parties, take into consideration the validity of the patent for the purposes only of the reference and for the determination of the issues between the applicant and such Government department.
The Court or arbitrator further in settling the terms as aforesaid, shall be entitled to take into consideration any benefit or compensation which the patentee, or any other person interested in the patent, may have received directly or indirectly from the State or from any Government department in respect of such patent.
(5) The right to use an invention for the services of the State under this section or any provisions for which this section is substituted shall include, and shall be deemed always to have included, the power to sell any articles made in pursuance of such right which are no longer required for the services of the State.
(6) A purchaser of any article sold in pursuance of subsection (2) or subsection (5), and any person claiming through him, shall have, and be deemed always to have had, power to deal with the articles in like manner as if the patent for the invention were held on behalf of the State.
(7) Nothing in this section shall affect the right of the State or of any person deriving title directly or indirectly from the State to sell or use any articles forfeited under the laws relating to the customs or excise.
Assignment to Minister of certain inventions
34. (1) The inventor of any improvement in instruments or munitions of war may (either for or without valuable consideration) assign to the Minister on behalf of the State all the benefit of the invention and of any patent obtained or to be obtained for the invention; and the Minister may be a party to the assignment.
(2) The assignment shall effectually vest the benefit of the invention and patent in the Minister on behalf of the State and all covenants and agreements therein contained for keeping the invention secret and otherwise shall be valid and effectual (notwithstanding any want of valuable consideration), and may be enforced accordingly by the Minister.
(3) Where any such assignment has been made, the Minister may at any time before the publication of the complete specification certify to the Registrar that, in the interest of the public service, the particulars of the invention and of the manner in which it is to be performed should be kept secret.
(4) If the Minister so certify the application and specifications, with the drawings (if any), and any amendment of the complete specification, and any copies of such documents and drawings shall, instead of being left in the ordinary manner at the Patent Office, be delivered to the Registrar in a packet sealed by authority of the Minister.
(5) The packet shall, until the expiration of the term during which a patent for the invention may be in force, be kept sealed by the Registrar, and shall not be opened save under the authority of an order of the Minister.
(6) The sealed packet shall be delivered at any time during the continuance of the patent to any person authorised by the Minister to receive it, and shall if returned to the Registrar be again kept sealed by him.
(7) On the expiration of the term of the patent, the sealed packet shall be delivered to the Minister.
(8) Where the Minister certifies as aforesaid, after an application for a patent has been left at the Patent Office, but before the publication of the complete specification, the application and specifications, with the drawings- (if any), shall be forthwith placed in a packet sealed by authority of the Registrar, and the packet shall be subject to the foregoing provisions respecting a packet sealed by authority of the Minister.