Legislative Implementation of Flexibilities - Paraguay
| Title: | Articles 42- 46 of the Patents Law No. 1.630 of 29/11/2000 |
| Field of IP: | Patents |
| Type of flexibility: | Compulsory licenses and government use |
| Summary table: |  |
Provisions of Law
Article 42. Other uses without authorization of the holder. In the event that a potential user shall have attempted to obtain the concession of a license from the holder of a patent under reasonable terms and commercial conditions and such attempts shall not have produced results, the Industrial Property Department, after a term of ninety days from the date of application for the relevant license, may permit other uses of the said patent without authorization of the holder, pursuant to the provisions of the present law.When the application refers to technology sectors that do not enjoy protection in the country on the effective date of the present law and the patent applied for comprises the raw material from which the end product is to be developed, the licensee shall be obliged to purchase the said raw material, molecule or principle, from the holder of the patent or from whoever he shall indicate. The price to be paid shall be the price that at which the same are offered in the international market. In the event that a preferential price exists in favor of the holder's affiliates, the said holder shall offer that price to the licensee. The holder shall sell the same to the licensee promptly and in due course.In the event that another supplier offers the relevant raw material to the licensee at a price 15% (fifteen percent) lower than that offered by the license holder, the licensee may purchase the same duly justifying that the purchased raw material has been legally placed in the national or international market by the patent holder, by a third party with consent thereof, or is legally permitted.
Article 43. Compulsory licenses or other uses due to lack of exploitation. Any interested party may apply to the Industrial Property Department for a compulsory license after three years from the concession of the patent or four years after presentation of the application, the later of which shall be applicable if the invention has not been exploited, or effective and serious preparations to do so have not been made or when exploitation thereof has been suspended for a period of more than one year, whenever the situation is not attributable to circumstances of force majeure.The objective difficulties or of a legal technical character that are beyond the will of the holder of the patent, and which prevent the exploitation of the invention shall be considered causes of force majeure, besides those so recognized by the law.The lack of technical or economic resources, or the economic unfeasibility of the exploitation shall be beyond the will of the patent holder, shall also be recognized as justification.
Article 44. Compulsory licenses or other uses without authorization of the patent holder for public interest reasons. The Executive Branch may grant compulsory licenses or other uses not authorized by the patent holder for reasons of sanitary emergency, national defense or security, socio-economic and technological development of certain strategic sectors, as well as when exceptional situations may affect the national interest, scope and duration of which shall be defined in the relevant decree.
Article 45. Compulsory licenses due to anticompetitive practices. By express resolution, the Industrial Property Department may grant compulsory licenses of an invention patent when the competent authority, through a procedure that grants rights of defense and other guarantees to the holder, shall determine that the latter has incurred in anticompetitive practices, abuse of rights conferred by the patent or abuse of a dominant position in the market.
To the effects of the present law, anticompetitive practices shall be deemed to be, among others, the following:
a) price fixing of the patented product at comparatively excessive levels in comparison with the average international prices;
b) the existence of offers to supply the market at prices significantly lower than those offered by the patent holder;
c) the refusal to supply the local market adequately and regularly with the raw materials or patented product under commercially reasonable conditions;
d) when the efficient exploitation in the country of the patented invention contributing to technological development is prevented or impeded by the patent holder; and,
e) the sundry other cases considered in special laws.
Article 46. Licenses for dependent patents. A compulsory license shall be granted to allow exploitation of a new patent -second patent- when the same cannot be exploited without infringing another patent -first patent- in the event that the following conditions are fulfilled:
a) that the invention claimed in the second patent shall contemplate an important technical advance in regard to the invention claimed in the first patent;
b) that the holder of the first patent shall have the right to obtain a crossed license under reasonable conditions to exploit the invention claimed in the second patent; and,
c) that the use authorized under the first patent cannot be assigned without assignment of the second patent;