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Legislative Implementation of Flexibilities - Grenada

Title:Sections 14 and 14 A of the Industrial Property Bill of 2002
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Exploitation by Government or authorised persons

14. (1) If -

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

the [Minister of Finance] has determined that the manner of exploitation by the owner of the patent or a licensee is anticompetitive, and the Minister [for Legal Affairs] is satisfied that the exploitation of the invention in accordance with this subsection would remedy such practice,

the Minister [for Legal Affairs] may decide that, even without the agreement of the owner of the patent, a Government agency or a third person designated by the Minister may exploit the invention.

(2) The exploitation of the invention under this section is limited to the purpose for which it was authorized and is subject to the payment to the owner of adequate remuneration, taking into account the economic value of the Minister's decision, as determined in the said decision, and, where a decision has been taken under paragraph (b) of subsection (1), the need to correct anti-competitive practices.

(3) The Minister [of Finance] and the Minister [of Legal Affairs] must take a decision under subsection (1) only after hearing the owner of the patent and any interested person who wishes to be heard.

(4) Upon the request of the owner of the patent, of the Government agency or of the third person authorized to exploit the patented invention, the Minister [of Legal Affairs] may, after hearing the parties, if either or both wish to be heard, vary the terms of the decision authorizing the exploitation of the patented invention to the extent that changed circumstances justify such variation.

(5) (a) Upon the request of the owner of the patent, the Minister [of Legal Affairs] must terminate the authorization if the Minister is satisfied, after hearing the parties, (if either or both wish to be heard) 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 designated has failed to comply with the terms of the decision.

(b) Notwithstanding paragraph (a), the Minister must not terminate the authorization if he or she is satisfied that the need for adequate protection of the legitimate interests of the

Government agency or third person designated justifies the maintenance of the decision.

(6) If a third person has been designated by the Minister under subsection (1), 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.

(7) The authorization must not exclude -

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

(b) the continued exercise, by the owner of the patent, of the rights under section [12](2); or

(c) the issue of a non-voluntary licence under subsections (1) and (2) of section [14 A.]

(8) (a) A request for the Minister's authorization must 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 that person has been unable to obtain such a licence on reasonable commercial terms and conditions and within a reasonable time.

(b) Paragraph (a) of this subsection does not apply in cases of national emergency or other circumstances of extreme urgency, but in such cases the owner of the patent must be notified of the Minister's decision as soon as reasonably practicable.

(9) The exploitation of the invention by the Government agency or third person designated by the Minister must be predominantly for the supply of the market in Grenada.

(10) The exploitation of an invention in the field of semi-conductor technology can only be authorized for public non-commercial use or if a judicial or administrative body has determined that the manner of exploitation of the patented invention, by the owner of the patent or the owner's licensee, is anti-competitive and if the Minister is satisfied that the issuance of the non-voluntary licence would remedy such practice.

(11) Decisions of a Minister under any of subsections (1) to (10) may be the subject of an appeal to the High Court.

Non-voluntary licences

[14A. (1) If the invention claimed in a patent ("later patent") cannot be exploited in Grenada without infringing a patent granted on the basis of an application benefiting from an earlier filing or, where appropriate, priority date ("earlier patent"), and if 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 [Registrar] [Court], 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.

(2) If a non-voluntary licence is issued under subsection (1), the [Registrar] [Court], upon the request of the owner of the earlier patent, must issue a non-voluntary licence in respect of the later patent.

(3) If a non-voluntary licence is issued under subsection (1) or (2), the issuing authority must fix the scope and function of the licence, the amount of the remuneration to be paid to the owner of the patent and the conditions of payment.

(4) In the case of a non-voluntary licence issued under subsection (1), the transfer may be made only with the later patent, or, in the case of a non-voluntary licence issued under subsection (2), only with the earlier patent.

(5) The issue of a non-voluntary licence is subject to payment of the prescribed fee.

(6) If a non-voluntary licence is issued under subsection (1) or (2), subsections (2) to (8) and (10) of section [14] apply with necessary modifications.]

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