Legislative Implementation of Flexibilities - Iceland

Title:	Articles 45-49 of the Patent Act No. 17 of 1991 as last amended by Act No. 167/2007
Field of IP:	Patents
Type of flexibility:	Compulsory licenses and government use
Summary table:

Provisions of Law

Article 45

If a patented invention is not worked to a reasonable extent in this country when three years have elapsed from the grant of the patent and four years have elapsed from the filing of the patent application, any person wishing to work the invention in this country may obtain a compulsory license to do so unless there are shown legitimate reasons for the failure to work the invention.

Subject to reciprocity [the Minister of Business Affairs] may direct that, for the purposes of Paragraph 1, working of the invention in another country shall be equivalent to working in this country.

Article 46

The proprietor of a patent for an invention, the exploitation of which is dependent on a patent held by another person, may obtain a compulsory license to exploit the invention protected by the latter patent if the former invention is considered to represent an important technical advance, which has considerable economic significance.

In the event of a compulsory license being granted to exploit a patented invention in pursuance of Paragraph 1, the proprietor of that invention shall be entitled to obtain, upon reasonable terms, a compulsory license to exploit the other invention.

Article 46 a) A holder of a plant variety who can neither acquire nor exploit a plant variety right without infringing a prior patent may request a compulsory licence for a reasonable payment to exploit the invention if the licence is necessary to exploit the variety to be protected. A compulsory licence shall be granted only if the plant variety holder demonstrates that the variety involves technically important progress and leads to considerable financial benefit in comparison to the invention in the patent.

If a patent holder has obtained a compulsory licence on the basis of the Act on Plant Variety Rights, No. 58/2000, to exploit a protected plant variety, the holder of the plant variety is entitled to a compulsory cross-licence on reasonable terms to exploit the invention.

Article 47

When required by important public interests, any person who wishes to exploit an invention commercially for which another person holds a patent may obtain a compulsory license to do so.

Article 48

Any person who, in this country, at the time when a patent application was made available to the public, was commercially exploiting the invention for which a patent is applied for, may, if the application results in a patent, obtain a compulsory license to exploit the invention if very special circumstances make it desirable and he had no knowledge and could not reasonably have obtained any knowledge of the application. Such a right shall also, under similar conditions, be enjoyed by any person who had made substantial preparations for commercial exploitation of the invention in this country.

A compulsory license in accordance with Paragraph 1 may include the time preceding the grant of the patent.

Article 49

A compulsory license may only be granted to a person who has not been able to reach agreement to obtain a license on reasonable terms and may be presumed to be capable of exploiting the invention in a reasonable and acceptable way and in accordance with the terms of the license. [In the event of a national emergency or other circumstances of extreme urgency, it is permissible to waive the requirement for prior negotiations, though the patent holder shall in such cases be notified of this use as soon as reasonably practicable. Further provisions may be made through regulations.A compulsory license shall not prevent the proprietor of the patent from exploiting the invention himself or from granting licenses to others. A compulsory license may only be transferred to others together with the business in which it is exploited or in which the exploitation was intended. Furthermore, where a compulsory license has been granted as provided for in Paragraph 1 of Article 46, transfer of a compulsory license may only occur concurrent with transfer of the patent which was dependent upon a patent held by another party.A compulsory license concerning semi-conductor technology may only be granted for public exploitation which is not of a commercial nature, or to prevent behaviour which a court or government authority has regarded as anti-competitive.]2) A compulsory licence may be granted for exporting medicines to developing countries and countries which are struggling with a severe public health problem, in accordance with the decision of the World Trade Organisation's General Council of 30 August 2003 on the TRIPS agreement and public health. The party requesting a compulsory license must show that they have, for a period of thirty days, made unsuccessful efforts to obtain authorisation for manufacture from the patent holder. However, the above-mentioned requirement for negotiations does not apply in the event of an emergency or other circumstances of extreme urgency. Compulsory licenses, under the terms of this paragraph, will only be granted upon the fulfilment of conditions further specified in regulations3) that are in compliance with the aforementioned decision of the World Trade Organisation's General Council, for instance regarding quantities and drug labelling.