Legislative Implementation of Flexibilities - Madagascar

Title:Sections 36 of the Industrial Property Law, Ordinance No. 89-019 of 31/07/1989
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

36.-(1) Any interested natural or legal person may request, on the expiry of a period of four years as from the filing date of the patent application or three years as from the date of grant of the patent, the period of time that expires last being applied, from the competent court the grant of a compulsory license, against fair and equitable remuneration, on one or more of the following grounds:

(i) the patented invention has not been worked or has been insufficiently worked within the country;

(ii) the patentee refuses to grant licenses under reasonable conditions;

(iii) working of the patented invention within the country does not satisfy, under reasonable conditions, demand for the product.

(2) When applying paragraph (1), a compulsory license shall be granted only if the patentee is unable to give legitimate grounds for the lack of working or insufficient working within the country.

(3) The compulsory license shall be non-exclusive and may only be transferred, even in the form of the granting of a sublicense, together with the establishment of the beneficiary of the license or with that part of the establishment within which the patented invention is being worked.

(4) A compulsory license may only be withdrawn as the result of a court decision.

37.-(1) Any owner of a patent who is not prevented by the conditions of an earlier license may request the Agency to enter in the special register, with respect to his patent, the notice "license of right." Such notice shall afford to any interested person the right to obtain a license to work that patent under conditions which, failing agreement between the parties, shall be laid down by the competent court.

(2) The State may obtain ex officio, at any time for reasons of public interest, a license to work an invention that is covered by a patent application or a patent whether such exploitation be carried out by the State itself or on its behalf. The royalties due under an ex officio license shall be determined by agreement between the State and the applicant or owner of the patent or the successor in title of the applicant or owner. Failing amicable agreement, the royalties shall be laid down by the competent court within the meaning of Article 135.