Legislative Implementation of Flexibilities - Romania

Title:	Articles 46-47 of the Patent Law no. 64 of 1991 as republished in the Official Gazette of Romania, Part I, No. 456/18.VI.2008
Field of IP:	Patents
Type of flexibility:	Compulsory licenses and government use
Summary table:

Provisions of Law

Art. 46 - Upon request by any interested person, the Court of Bucharest may grant a compulsory license after 4 years have elapsed from the patent application filing date or after 3 years have elapsed from the grant of the patent, whichever period expires later.The provisions of paragraph 1 shall only apply where the invention has not been exploited or has been insufficiently exploited on the territory of Romania, and the patent owner cannot justify his inaction and where no agreement has been reached with him regarding the conditions and commercial methods for applying the invention.The Court of Bucharest shall authorize the compulsory license, provided that it considers, based on given circumstances, that, in spite of all efforts made by the interested person, no agreement could be reached within a reasonable time period.Besides the cases referred to in paragraph 2, a compulsory license may be authorized by the Court of Bucharest:

a) in national emergency cases;

b) in other cases of extreme emergency;

c) in cases of public use for non-commercial purposes.

The grant of the compulsory license, for one of the reasons provided under paragraph 4, shall not require the fulfillment of the conditions mentioned under paragraph 2. Nevertheless, the licensee shall inform the applicant or patent owner about the authorization given by the Court, within the shortest delay.In cases of public use for non-commercial purposes, the Government or third parties authorized by the Government, if they know or have demonstrable reasons to know that a valid patent is or will be used by the Government or the third parties, shall inform the patent owner accordingly, within a reasonable time.In cases where a patent cannot be exploited without infringing the rights conferred by other patent granted for an application having a prior regular national filing date, a compulsory license for exploiting the second patent may only be authorized if the following additional conditions are cumulatively fulfilled:

a) the invention claimed in the second patent involves an important technical advance of considerable economic significance as compared with the invention in the first patent;

b) the owner of the first patent is entitled to a cross-license on reasonable terms for using the invention claimed in the second patent;

c) the use authorized in respect of the first patent shall be non-transferable, except for the transfer of the second patent.

Art. 47 - Compulsory licenses shall be non-exclusive and shall be granted by the Court of Bucharest, under specific conditions regarding their extent and duration, as well as the amount of royalties to which the right holder is entitled, established in accordance to the commercial value of the granted licenses.Beneficiaries of the compulsory license can also be the Government or third parties authorized by the Government.Compulsory licenses shall be authorized mainly for supplying the market.The extent and duration of compulsory licenses shall be limited to the purposes for which they have been authorized. In case of the inventions in the semiconductor technology field, the license shall be granted only for public non-commercial purposes or to remedy a practice declared as anti-competitive, as a result of a judiciary or administrative procedure.When the owner of a plant variety patent cannot exploit the patent without infringing a prior patent, he may request a compulsory license for the invention protected by said patent.When the owner of a patent relating to a biotechnological invention cannot exploit the patent without infringing a prior plant variety patent, he may request a compulsory license for the exploitation of the plant variety protected by said patent.Where a compulsory license is authorized for remedying an anti-competitive practice, the provisions of Art. 46, paragraphs 3 and 4 and Art. 47, paragraph 3 shall not be applicable.