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Legislative Implementation of Flexibilities - Papua New Guinea

Title:Section 32 of the Industrial Property Act No. 30 of 19/07/2000
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

32. Exploitation by Government or person authorized by Government

(1) Where -

(a) the public interest, in particular, national security, nutrition, health or the development of other sectors of the national economy so requires; or

(b) the Minister has determined that the manner of exploitation of a patented invention by the owner or his licensee is anti-competitive, and he is satisfied that the exploitation of a patented invention in accordance with this Division would remedy such practice,

the Minister may at the request of a Government agency or other person authorise, by notice in the National Gazette, the exploitation of the patented invention by the requesting agency or person predominantly for the supply of the market in Papua New Guinea, even without the agreement of the owner of the patent.

(2) The Minister may impose such terms and conditions on an authorisation under section* (1) as he thinks fit.

(3) Subject to Subsection (5), prior to granting an authorisation under Subsection (1), the Minister must be satisfied that the owner of the patent has received from the Government agency or person requesting the authorisation, a request for a contractual licence, but that that Government agency or person has been unable to obtain such a licence on reasonable commercial terms and conditions and within a reasonable time.

(4) Subject to Subsection (5), the Minister shall not authorise the exploitation of the patented invention under Subsection (1) until he has given the owner of the patent and any other person known to the Minister to be an interested person, an opportunity to be heard, and where they wish to be heard, has heard them.

(5) Subsections (3) and (4) do not apply in cases of national emergency under Part X of the Constitution or in other circumstances of extreme emergency, but in such cases the owner of the patent shall be notified of the decision of the Minister as soon as is reasonably practicable.

(6) The exploitation of a patented invention which is authorised by the Minister under Subsection (1) shall -

(a) be limited to the purpose for which the Minister authorised its use; and

(b) be subject to payment to the owner of the patent of adequate remuneration as determined by the Minister; and

(c) shall not exclude -

(i) the conclusion of licensing contracts by the owner of the patent; and

(ii) the continued exercise, by the owner of the patent, of his rights under Section 29 (1).

(7) In determining the amount of compensation referred to in Subsection (6) (b), the Minister shall take into account -

(a) the economic value of his decision under Subsection (1); and

(b) where the decision has been taken under Subsection (1) (b), the need to remedy the anti-competitive practices.

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