Legislative Implementation of Flexibilities - Eswatini
| Title: | Section 12 paragraph 6 of the Patents, Utility Models and Industrial Designs Act No. 6 of 1997 |
| Field of IP: | Patents |
| Type of flexibility: | Compulsory licenses and government use |
| Summary table: |  |
Provisions of Law
Rights conferred by patent, ARIPO Protocol patents, exploitation by Government or person thereby authorised.
12. (1) The exploitation of the patented invention in Swaziland by persons other than the owner of the patent shall require the latter's agreement.
(2) For the purposes of this Act, "exploitation" of a patented invention means any of the following acts -
(a) when the patent has been granted in respect of a product -
(i) making, importing, offering for sale, selling and using the product;
(ii) stocking such products for the purposes of offering for sale, selling or using;
(b) when the patent has been granted in respect of a process -
(i) using the process;
(ii) doing any of the acts referred to in paragraph (a) in respect of a product obtained directly by means of the process.
(3) The owner of the patent shall, in addition to any other rights, remedies or actions available to him, have the right, subject to subsection (4) and (6) and section 14 t to institute court-proceedings against any person who infringes the patent by performing, without his agreement, any of the acts referred to in subsection (2) or who performs acts which make it likely that infringement will occur.
(4) The rights under the patent shall not extend to:
(a) acts in respect of articles which have been put on the market in Swaziland by the owner of the patent or with his consent;
(b) the use of articles on aircraft, land vehicles or vessels of other countries which
temporarily or accidentally enter the airspace, territory or waters of Swaziland; or
(c) acts done for experimental purposes relating to a patented invention;
(d) acts performed by any person who in good faith, before the filing of, where priority is claimed, the priority date of application on which the patent is granted and In Swaziland, was using the invention or making effective and serious preparations for such use. to the extent such acts do not differ in nature or purpose from the: actual or envisaged prior use and provided that the right of prior user referred to 'herein 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 or have been made.
(5) A patent in respect of which Swaziland is a designated State, granted by ARIPO by virtue of the ARIPO Protocol, shall have the same effect in Swaziland as a patent under this Act unless the Registrar of Patents has communicated to ARIPO. in respect of the application therefor: a decision in accordance with the provisions of the Protocol, that if a patent is granted by
AR1PO that patent shall have no effect in Swaziland.
(6) (a) Where the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy so requires, the Minister may decide that even without the agreement of the owner of the patent, 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 said owner therefor.
(b) The decision of the Minister may be appealable before the court within three (3) months from the date it was made.