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Legislative Implementation of Flexibilities - Mauritius

Title:Sections 23-24 of the Patents, Industrial Designs and Trademarks Act No. 25 of 2002
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Exploitation by Government or Person Thereby Authorized

23.-(1) Where the competent authority-

(a) is satisfied that the public interest including, national security, nutrition, health or the development of other vital sectors of the national economy so requires; or

(b) has, on the application of any party, determined that the manner of exploitation, by the owner of the patent or his licensee, is anti-competitive and that it is necessary to remedy such anti-competitive practice;

it may, upon a request being made, authorise, even without the agreement of the owner of the patent, authorise a Government agency or a third person to exploit the patented invention.

(2) The exploitation of the patented invention shall be limited to the purpose for which it was authorized and shall be subject to the payment, to the owner, of an adequate compensation.

(3) For the purposes of a decision under subsection (1) the competent authority shall take-

(a) into account the economic value of the authorization, as determined in the said decision, and where a decision has been taken under subsection (1)(b), the need to correct anti-competitive practices; and

(b) his decision after hearing the owner of the patent and any interested person, whenever necessary.

(4) A request for the authorization under subsection (1) shall be accompanied by evidence that the owner of the patent has received, from the person seeking the authorization, a request for a contractual licence, but that the latter has been unable to obtain such a licence on reasonable commercial terms and conditions and within a reasonable time.

(5) Subsection (4) shall not apply in cases of-

(a) national emergency or other circumstances of extreme urgency provided, however, that in such cases the owner of the patent shall be notified of the competent authority's decision as soon as reasonably practicable;

(b) public non-commercial use; and

(c) anti-competitive practices determined as such by the competent authority in accordance with subsection (1)(b).

(6) The exploitation of a patented invention in the field of semi-conductor technology by a person other than the owner, shall only be authorized-

(a) where the competent authority has determined that the manner of exploitation of the patented invention, by the owner of the patent or his licensee, is anti-competitive and is satisfied that the issuance of the non-voluntary licence would remedy such practice; or

(b) for public non-commercial use.

(7) The authorization shall not exclude-

(a) the conclusion of licence contracts by the owner of the patent; or

(b) the continued exercise, by the owner of the patent, of his rights under section 21; or

(c) the issuance of a non-voluntary licence under section 24.

(8) Where a third person has been authorised by the competent authority, the authorization may only be transferred with the enterprise or business of that person or with the part of the enterprise or business within which the patented invention is being exploited.

(9) Upon a request of the owner of the patent, or the Government agency or of the third person authorized to exploit the patented invention, the competent authority may, after hearing the parties, whenever necessary, vary the terms of the decision authorizing the exploitation of the patented invention to the extent that any change in circumstances justifies such variation.

(10) Upon the request of the owner of the patent, the competent authority shall terminate the authorization if he is satisfied, after hearing the parties, whenever necessary, that the circumstances which led to the decision have ceased to exist and are unlikely to recur or that the Government agency or third person authorised has failed to comply with the terms of the decision.

(11) Notwithstanding subsection (10), the competent authority shall not terminate the authorization where he is satisfied that the need for adequate protection of the legitimate interests of the Government agency or third person authorised, justifies the maintenance of the decision.

(12) The decision of the competent authority under this section shall be subject to review by the Supreme Court.

Non-Voluntary Licences

24.-(1) Upon request made to the Controller after the expiration of a period of 4 years from the date of filing of the patent application or 3 years from the date of the grant of the patent, whichever period expires last, the Controller may issue a non-voluntary licence if he is satisfied that the patented invention is not exploited or is insufficiently exploited, by working the invention locally or by importation, in Mauritius.

(2) Notwithstanding subsection (1), a non-voluntary licence shall not be issued if the owner of the patent satisfies the Controller that circumstances exist which justify the non-exploitation or insufficient exploitation of the patented invention in Mauritius.

(3) The decision issuing the non-voluntary licence shall fix-

(a) the scope and the function of the licence;

(b) the time limit within which the licensee must begin to exploit the patented invention; and

(c) the amount of the adequate remuneration to be paid to the owner of the patent and the conditions of payment.

(4) The holder of the non-voluntary licence shall-

(a) have the right to exploit the patented invention in Mauritius according to the terms set out in the decision issuing the licence;

(b) commence the exploitation of the patented invention within the time limit fixed in the said decision; and

(c) thereafter, exploit the patented invention sufficiently.

(5) Where-

(a) the invention claimed in a patent (later patent) cannot be exploited in the country without infringing a patent granted on the basis of an application benefiting from an earlier filing or, where appropriate, priority date (earlier patent); and

(b) the invention claimed in the later patent involves an important technical advance of considerable economic importance in relation to the invention claimed in the earlier patent;

the Controller, upon the request of the owner of the later patent, may issue a non-voluntary licence to the extent necessary to avoid infringement of the earlier patent.

(6) Where a non-voluntary licence is issued under subsection (5), the Controller, upon the request of the owner of the earlier patent, shall issue a non-voluntary licence in respect of the later patent.

(7) In the case of a request for the issuance of a non-voluntary licence under subsections (5) and (6), subsection (3) shall apply mutatis mutandis with the proviso that no time limit needs to be fixed.

(8) In the case of a non-voluntary licence issued under subsection (5), the transfer may be made only with the later patent, or, in the case of a non-voluntary licence issued under subsection (6), only with the earlier patent.

(9) The request for the issuance of a non-voluntary licence shall be subject to payment of a prescribed fee.

(11) Sections 23(2) to 23(12) shall apply mutatis mutandis to a non-voluntary licence issued under this section.

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