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Legislative Implementation of Flexibilities - Andean Community

Title:Articles 61 and 65-68 of the Decision No. 486 of 14/09/ 2000 of the Commission of the Andean Community - Common Industrial Property Regime (Cartagena Agreement)
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Chapter VII

Compulsory License Regime

61. On the expiry of a period of three years following the grant of the patent, or four years following the application for the patent, whichever is the longer, the competent national office may grant a compulsory license for the industrial manufacture of the product to which the patent relates, or for the full use of the patented process, at the request of any interested party, but only where, at the time of the request, the patent has not been worked as provided in Articles 59 and 60 in the member country in which the license is applied for, or where the working of the invention has been suspended for more than a year.

The compulsory license shall not be granted if the owner of the patent provides legitimate reasons for his failure to act, which may be reasons of force majeure, in accordance with the domestic provisions of each member country.

A compulsory license shall only be granted where the person who requests it has previously attempted to obtain a contractual license from the owner of the patent on reasonable commercial terms and conditions, and where that attempt has not had any effect within a reasonable time.

65. On a declaration by a member country of the existence of public interest, emergency or national security considerations, and only for as long as those considerations obtain, the patent may be made subject to compulsory licensing. In that case the competent national office shall grant such licenses as may be applied for. The owner of the patent so licensed shall be notified where reasonably possible.

The competent national office shall specify the scope or extent of the compulsory license, and in particular the term for which it is granted, its subject matter and the amount of royalties and the conditions for the payment thereof.

The grant of a compulsory license for reasons of public interest shall not diminish the right of the owner of the patent to continue to work the said patent.

66. The competent national office shall, either ex officio or at the request of a party, and after having obtained the consent of the national authority on free competition, grant compulsory licenses where practices are noted that adversely affect free competition, especially an abuse by the owner of the patent of his dominant position on the market.

In such cases, when the amount of royalties is determined, due regard shall be given to the need to correct anti-competitive practices.

The competent national office shall refuse to revoke the compulsory license where it is probable that the circumstances that gave rise to it could recur.

67. The competent national office shall grant a license at any time where it is applied for by the owner of a patent the working of which requires the use of another, and where the said owner has been unable to secure a contractual license on reasonable terms. Such a license shall, without prejudice to the provisions of Article 68, be subject to the following:

(a) the invention claimed in the second patent must embody substantial technological progress in relation to that claimed in the first;

(b) the owner of the first patent shall have the right to a cross-license on reasonable terms for exploitation of the invention claimed in the patent; and

(c) the license under the first patent may not be assigned without assignment also of the second.

68. Compulsory licenses shall be subject to the following in addition to the foregoing provisions:

(a) they shall not be exclusive, and no sublicense may be granted;

(b) they may only be transferred with the part of the enterprise or its intangible assets that enable them to be worked; the transfer shall be evidenced in writing and registered with the competent national office. Failing this they shall be devoid of legal effect;

(c) they may be revoked, subject to the adequate protection of the legitimate interests of persons who have been authorized under them, where the circumstances that gave rise to them no longer obtain and are unlikely to recur;

(d) their scope and duration shall be limited according to the purposes for which they have been granted;

(e) in the case of patents for invention that protect semiconductor technology, the compulsory license shall be granted only for public, non-commercial use or to remedy or rectify a practice declared contrary to free competition by the competent national authority under Articles 65 and 66;

(f) they shall provide for adequate remuneration according to the circumstances of each case, due regard being had to their economic value, without prejudice to the provisions of Article 66; and

(g) their use shall be mainly to supply the domestic market.

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