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Legislative Implementation of Flexibilities - Trinidad and Tobago

Title:Sections 46-48 of the Patents Act No. 21 of 1996 as last amended by the Act No. 18 of 2000
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Non-voluntary licences

46.-(1) At any time after the expiration of three years from the date of grant of a patent under this Act or four years from the date of the filing, whichever is later, any person interested may apply to the Court for the grant of a licence under the patent on any of the following grounds, namely that a market for the patented invention is not being supplied, or is not being supplied on reasonable terms in Trinidad and Tobago.

(2) Subject to subsections (4), (5), (6) and (7), if the Court is satisfied that either of the grounds referred to in subsection (1) is established, the Court may make an order for the grant of the licence in accordance with the application on such terms as the Court thinks fit.

(3) A licence granted under this section:

(a) is not exclusive;

(b) shall not be assigned otherwise than in connection with the goodwill of the business in which the patented invention is used; and

(c) is limited to the supply of the patented invention predominantly in Trinidad and Tobago.

(4) Where the Court is satisfied that the grounds on which any licence granted under this section have ceased to exist, it may, on the application of any interested party, terminate such licence.

(5) Any person to whom a licence is granted under this section shall pay such remuneration to the patentee as may be agreed, or as may be determined by a method agreed upon between that person and the patentee, or in default of agreement, as the Court may, taking into account the economic value of the licence, determine on the application of either party.

(6) Before a licence is granted under subsection (1), the Court must be satisfied that the person applying for the licence has made efforts to obtain a licence from the patentee on reasonable commercial terms and conditions within a reasonable time, but has failed to do so.

(7) A licence shall not be granted under this section in respect of a patent relating to semiconductor technology except for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive.

Use of patented invention for services of the State

48.-(1) Where the public interest so requires, or where the Minister decides that the manner of exploitation by the owner of a patent or his licensee is anti-competitive, then subject to subsection (2) the Minister may authorize a State agency or any person in writing, to make use, exercise or vend the patented invention for the services of the State subject to the payment of adequate compensation to the owner thereof, taking into account the economic value of the exploitation, and anything done by virtue of this subsection shall not amount to an infringement of the patent.

(2) Before issuing his authorization under subsection (1), the Minister shall hear the owner of the patent and any other interested party who may wish to be heard.

(3) Subsection (2) does not apply in the case of a national emergency.

(4) The Minister may upon the request of any of the parties, vary the terms of the authorization.

(5) (a) Upon the request of the owner of the patent, the Minister shall terminate the authorization if he is satisfied that the circumstances which led to his decision have ceased to exist and are unlikely to recur, or that the State agency or person authorized by him has failed to comply with the terms of the authorization;

(b) Notwithstanding paragraph (a), the Minister shall not terminate the authorization if he is satisfied that the need for adequate protection of the legitimate interests of the State agency or the person authorized by him justifies maintaining the decision.

(6) An authorization granted to a person other than a State agency shall be subject to the conditions prescribed by subsection (3) of section 46.

(7) (a) Before an authorization is granted under subsection (1), the Minister must be satisfied that the proposed user has made efforts to obtain a licence from the patentee on reasonable commercial terms and conditions within a reasonable time, but has failed to do so;

(b) Paragraph (a) shall not apply in cases of national emergency or other circumstances of extreme urgency, provided however, that in such cases the owner of the patent shall be notified of the Minister's decision as soon as is reasonably practicable.

(8) Any decision of the Minister under subsections (1), (4) or (5) may be subject to judicial review.

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