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Legislative Implementation of Flexibilities - Tonga

Title:Sections 13 and 15 of the Industrial Property Act No. 19 of 09/11/1994
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

13 - Rights conferred by patent; exploitation by Government or person thereby authorized

(1) Exploitation in respect of a patented invention means any of the following acts -

(a) when the patent has been granted in respect of a product, the making, importing, exporting, offering for sale, setting and using the products or stocking such products for the purposes of offering for sale;

(b) when the patent has been granted in respect of a process, using the process or doing any of the acts referred to in sub-paragraph (a) in respect of a product obtained directly by means of the process.

(2) Subject to subsections (4) and (5) and section 15, the exploitation of the patented invention in Tonga by persons other than the owner of the patent shall require the patentee's permission.(3) The patentee shall, in addition to any other rights, remedies or actions available to him, have the right, subject to subsections (4) and (5) and section 15, to institute court proceedings against any person who exploits the patent without his permission, or who performs acts which may likely infringe the patented invention.(4) The rights under the patent shall not extend,

(a) to acts in respect of articles which have been put on the market in Tonga by the patentee or with his consent;

(b) to the use of articles on aircraft, land vehicles, or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of Tonga;

(c) to acts done only for experimental purposes relating to a patented invention;

(d) to acts performed by any person who in good faith, before the filing or, where priority is claimed, the priority date of the application on which the patent is granted, was using the invention in Tonga or was making effective and serious preparations in Tonga for such use, to the extent that such acts do not differ in nature or purpose from the actual or envisaged prior use; this right may be transferred or devolve only together with the enterprise or business, or with that part of the enterprise or business, in which the use or preparations for use have been made.(5) (a) Where the public interest, in particular, national security, nutrition, health or the development of other vital sector of the national economy so require, the Minister may decide that, even without the permission of the patentee, a government agency or a third person designated by the Minister may exploit the invention, subject to the payment of an equitable remuneration to the patentee.

(b) The decision of the Minister with regard to remuneration may be the subject of an appeal before the Court.15 - Non-voluntary licences

(1) On the request of any person who proves his ability to work a patented invention in Tonga made to the Registrar after the expiration of a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last, the Registrar may grant a non-voluntary licence if the patented invention is not worked or is insufficiently worked in Tonga.(2) Notwithstanding subsection (1), a non-voluntary licence shall not be granted if the patentee satisfies the Registrar that circumstances exist which justify the non-working or insufficient working of the patented invention in Tonga. Importation shall not constitute such a circumstance.(3) The beneficiary of the non-voluntary licence shall have the right to exploit, other than to import, the patented invention in Tonga according to the terms set down in the decision granting the licence and, shall commence the working of the patented invention in Tonga within the time limit fixed in the said decision and, thereafter, shall work the patented invention sufficiently in Tonga, subject to the payment of an equitable remuneration therefor as determined in the said decision.(4) The grant of the non-voluntary licence shall not exclude, -

(a) the conclusion of a licence contract by the patentee or the grant of other non-voluntary licences; or

(b) the exploitation of the patented invention under section 13(5).

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