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Legislative Implementation of Flexibilities - United Republic of Tanzania

Title:Sections 52-59 and 61 of the Patents Act No. 1 of 1987
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

52. (1) (a) At any time after four years from the filing date of an application or three years from the grant of a patent, whichever period last expires, any person may, in proceedings instituted by him against the owner of the patent or ill proceedings instituted against him by the said owner, request the court for the grant of a compulsory licence on any of the following grounds that is to say-

(i) that the patented invention, being capable of being worked in the United Republic, has not been so worked,

(ii) that the existing degree of working of the patented invention in the United Republic does not meet ill reasonable terms the demand for the patented product on the domestic market or for the purposes of exportation;

(iii) that the working of the patented invention in the United Republic is being hindered or prevented by the importation of the patented product, and

(iv) that, by reason of the refusal of there owner of the patent to grant licences on reasonable terms, the establishment or development of industrial or commercial activities in the United Republic, or the possibilities of exportation from the United Republic, are unfairly and substantially prejudiced.

(b) "Where the patented invention is a process, the phrase "patented product" in paragraph (a)means a product obtained directly by means of the process.

(2) A compulsory licence shall not be granted in respect of a patent if the owner of the patent satisfies the court that his actions in relation to the patented invention are justifiable in the circumstances.

53.-( l) Where the patented invention cannot be worked without infringing rights derived from an earlier patent the owner of the later patent may, in proceedings instituted by him against the owner of the earlier patent or in proceedings instituted against him by the latter owner,

request the court at any time for the grant of it compulsory licence with respect to the earlier patent to the extent necessary for the working of his invention if the invention-

(i) serves industrial purposes different from those served by the invention which is the subject of the earlier patent; or

(ii) constitutes substantial technical progress in relation to that last mentioned invention;

(2) If the two inventions mentioned in subsection (1) serve the same industrial purposes, a compulsory licence may be granted under that subsection only on condition that a compulsory licence shall also be granted in respect of the later patent to the owner of the earlier patent if he so requests.

(3) In this section, "earlier patent" means a patent granted on an earlier application or benefiting from an earlier validly claimed priority date, and "later patent" shall be construed accordingly.

54.-(1) The Minister may by order published in the Gazette direct that, for patented inventions concerning certain kinds of products, or processes for the manufacture of such products, declared in the order to be of vital importance for the defence or the economy of the or for

public health, compulsory licences may be granted.

(2) Compulsory licences with respect to any products or processes specified in the order referred to in subsection (1) may be requested at any time after the grant of the relevant patent, in court proceedings instituted against or by the owner of the said patent.

55. A compulsory licence shall not be granted unless the person-requesting such licence-

(a) satisfies the court that he has asked the owner of the patent for a contractual licence but has been unable to obtain such a licence on reasonable terms and within a reasonable time, and

(b) offers guarantees satisfactory to the court to work the relevant invention sufficiently to remedy the deficiencies or to satisfy the requirements, which gave rise to his request.

56.-(l).In considering a request for a compulsory licence, the court shall first decide whether a compulsory licence may be granted and shall then, if it decides in favour of the grant and taking into account any terms agreed by the parties, proceed to fix the terms, which shall be

deemed to constitute a valid contract, -between the parties and shall be governed by the provisions of Part X.

(2) Infixing the terms under subsection (1), the court shall ensure that the compulsory licence-

(a) entities the licencee to do any act which is mentioned in section 35, except that this shall not apply to importation unless the application was made under section 54;

(b) does not entitle the licensee to grant further licences, without the consent of the owner of the patent;

(c) is non-exclusive, and

(d) provides for the payment to the owner of the patent of remuneration which is equitable with due regard to all the circumstances of the case.

(3) A representative of the Registrar shall have the right to appear and be heard at the hearing of an application for a compulsory licence,

61.-(1) Where a vital public interest and in particular, national security, health or the development of vital sectors of the public economy-requires that one or more acts referred to in section 35 be performed respect to a patented invention, the Minister ma, patented invention shall, even in the absence of the owner of the patent, be exploited by a government person designated by the Minister subject to ther tion to the owner of the patent.

(2) The Minister shall take his decision in accordance with,

(l) after consultation with the Registrar and after hearing , the patent owner and any licencee shall be invited.

(3) Once the decision of the Minister has been taken, the Registrar shall fix the amount of the remuneration to be paid to the owner of the patent, such remuneration being equitable with due regard to all the circumstances of the case.

(4) The owner of the patent may appeal to the court against the decision of the Registrar fixing the amount of remuneration referred to in subsection (3) but such appeal shall not suspend the effects of the decision referred to in subsection (1),

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