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Legislative Implementation of Flexibilities - Ireland

Title:Section 83 of the Patent Act No. 1 of 1992 as last amended by Act no. 31 of 2006
Field of IP:Patents
Type of flexibility:Ex-officio IP office control of anti-competitive clauses in licensing agreements
Summary table:PDF

Provisions of Law

83. (1) It shall not be lawful to include in any contract in relation to the sale or lease of, or licence to use or work, any product or process which is the subject of a patent application or patent a condition which, directly or indirectly, would-

(a) prevent or restrict a party to the contract from using any product or process, whether or not the subject of a patent application or patent, which in either case is supplied or owned by any person other than a party to the contract or his nominee;

(b) require any such party to acquire from any other such party, or his nominee, any product which is not the subject of a patent application or a patent;

and any such condition, if so included, shall be null and void; provided that this subsection shall not apply if:

(i) the party seeking to rely on the condition proves that at the time the contract was entered into the party which the condition purports to bind had the option of purchasing the relevant product or obtaining a lease or licence in relation thereto on reasonable terms, without the conditions described in paragraphs (a) and (b) of this subsection; and

(ii) the contract entitles the party to the contract which the condition purports to bind to relieve himself of his liability to observe the condition on giving to the other party three months notice in writing and on the payment of compensation for such relief, in the case of a purchase, of such sum, or in the case of a lease or licence, of such rent or royalty for the residue of the term of the contract, as may be fixed by an arbitrator appointed by the Minister.

(2) In any proceedings under this Act no person shall be estopped from applying for or obtaining relief by reason only of any admission made by him as to the reasonableness of the terms offered to him under paragraph (i) of the proviso to subsection (1).

(3) Any contract for or relating to a lease of or a licence to use or work any product or process which, at the time when the contract is made, is the subject of one or more patent applications or one or more patents may, at any time after the patent or all of the patents, as may be appropriate, by which the product or process was protected or the patent or patents, as may be appropriate, resulting from such application or applications, has or have ceased to be in force, be determined by either party to the contract on giving three months notice in writing to the other party to the contract notwithstanding anything to the contrary contained in that or in any other contract.

(4) The inclusion by the proprietor of or applicant for a patent in a contract of any condition which by virtue of this section is null and void shall be available as a defence to an action for infringement of the patent or application to which the contract relates brought while that contract is in force.

(5) Nothing in this section shall-

(a) affect any condition in a contract whereby a person is prohibited from selling any goods other than those of a particular person; or

(b) be construed as validating any contract which would, apart from this section, be invalid; or

(c) affect any right of determining a contract or conditions in a contract exercisable independently of this section; or

(d) affect any condition in a contract for the lease of or licence to use a product which is the subject of a patent application or patent, whereby a party to the contract reserves to himself or his nominees the right to supply such new parts of the product as may be required to put or keep it in repair.

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