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Legislative Implementation of Flexibilities - Mozambique

Title:Articles 83, 85-88 of the Industrial Property Code, Decree No. 4 of 12/04/2006
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Article 83 Compulsory working

1. The proprietor of a patent shall be required to work the patented invention, either directly or indirectly.

2. Working shall commence within three years after the date on which the patent was granted, or within four years after the application was filed, whichever period is longer.

3. If the proprietor fails to work the invention within the stipulated periods, he may be compelled to grant a licence to a third party.

4. The proprietor of the patent may also be compelled to grant a licence to a third party to work the patent if the use of another patent depends on it.

5. A compulsory licence will only be granted, as envisaged in the preceding paragraphs, when the potential user has made efforts to obtain the patent proprietor's agreement on reasonable conditions and the negotiations have not been successful.

Article 85 Compulsory licence

1. The invention may be worked under authorisation given by the responsible Ministry, without the consent of the proprietor of the patent, for reasons of public interest.

2. For the purposes of this article, an invention is of public interest if it is of fundamental importance to public health, national defence and economic and technological development.

3. The application for a compulsory licence shall be addressed to the IPI, accompanied by evidence that the applicant sought a contractual licence from the proprietor of the patent but did not obtain one on reasonable commercial conditions and within a reasonable time.

4. The provisions of the preceding paragraph shall not apply to cases of national emergency or other circumstances of extreme urgency.

5. In all cases referred to in this article, the IPI shall immediately inform the proprietor of the patent of the grounds for the grant of a compulsory licence.

6. The proprietor of the patent shall be given adequate remuneration, adjusted according to each particular case, taking into account the economic value of the patent.

7. The extent and duration of the use shall be limited to the purposes for which it was authorised.

8. The use provided for under the terms of this article shall not be exclusive.

9. The use provided for under the terms of this article cannot be assigned.

10. The use provided for under the terms of this article may only be transferred together with the enterprise or the goodwill of the enterprise that works the patented invention.

11. The working of the invention by a third party or a legal entity designated by the Government shall be aimed predominantly at supplying the market in Mozambique.

Article 86 Opposition against the compulsory licence

The proprietor of the patent may at any time oppose an application by a third party for a compulsory licence, on grounds that show that the failure to observe the law was not attributable to him.

Article 87 Proof of working

1. Proof that a patent is being worked may be supplied by means of an official certificate issued by a competent body in the area of work in question.

2. The certificate of working shall certify that the invention is being used in manufacturing processes at the industrial establishment where it is claimed the invention is being worked, or that the subject matter of the invention is actually being marketed.

Article 88 Dependent patents

1. For the purposes of compulsory licences, a dependent patent shall be one the working of which relies necessarily on using the subject matter of a previous patent.

2. A process patent may be considered dependent upon a patent for the respective process [sic], and a product patent may be considered dependent upon a process patent.

3. When the above circumstances occur, there shall be no right to obtain a crossed compulsory license on the dependent patent.

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