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Legislative Implementation of Flexibilities - Ghana

Title:Sections 45- 50 of the Patents Law No.305A of 30/12/1992
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Compulsory licences for non-working and similar reasons

45.-(1) At any time after four years from the filing date of an application or three years from the grant of a patent whichever period last expires, any person may, in proceedings instituted by him against the owner of the patent or in proceedings instituted against him by the said owner, request the court to grant a compulsory licence on any of the following grounds-

(a) that a patented invention, which is capable of being worked in the country has not been so worked;

(b) that the existing degree of working of the patented invention in the country does not meet on reasonable terms the demand for the patented product on the domestic market or for purposes of exportation;

(c) that the working of the patented invention in the country is being hindered or prevented by the importation of the patented product; or

(d) that, by reason of the refusal by the owner of the patent to grant licences on reasonable terms, the establishment or development of industrial or commercial activity in the country, or the possibilities of exportation from the country, are unfairly and substantially prejudiced.

(2) Where the patented invention is a process, "patented product" in subsection (1) of this section means a product obtained directly by means of the process.

(3) A compulsory licence shall not be granted in respect of a patent if the owner of the patent satisfies the court that his actions in relation to the patented invention are justifiable in the circumstances.

Compulsory licences based upon the interdependence of patents

46.-(1) Where a patented invention cannot be worked without infringing rights derived from an earlier patent, the owner of the later patent may, in proceedings instituted by him against the owner of the earlier patent or in proceedings instituted against him, request the Tribunal at any time to grant a compulsory licence with respect to the earlier patent to the extent necessary for the working of his invention if the invention-

(a) serves industrial purposes different from those served by the invention which is the subject of the earlier patent; or

(b) constitutes substantial technical progress in relation to the later invention.

(2) Where the two inventions mentioned in subsection (1) serve the same industrial purpose, a compulsory licence may be granted under that subsection only on condition that a compulsory licence shall also be granted in respect of the later patent to the owner of the earlier patent if he so requests.

(3) In this section, "earlier patent" means a patent granted on an earlier application or benefiting from an earlier validly claimed priority date, and "later patent" shall be construed accordingly.

Compulsory licences for products and processes declared to be of vital importance

47.-(1) The Secretary may by legislative instrument direct that, for patented inventions concerning certain kinds of products, or processes for the manufacture of such products declared to be of vital importance to the defence, economic or public health interests of Ghana, compulsory licences may be granted.

(2) Compulsory licences with respect to any product or process specified in subsection (1) of this section may be granted at any time after the grant of the relevant patent by the Tribunal in proceedings instituted against or by the owner of patent.

Preconditions to grant of compulsory licences

48. A compulsory licence shall not be granted unless the person requesting the compulsory licence-

(a) satisfies the Tribunal that he has asked the owner of the patent for a contractual licence but has been unable to obtain such a licence on reasonable terms and within a reasonable time; and

(b) offers guarantees satisfactory to the court to work the relevant invention sufficiently to remedy the deficiencies, or to satisfy the requirements, which gave rise to his request.

Grant and terms of compulsory licences

49.-(1) In considering a request for a compulsory licence, the court shall first decide whether a compulsory licence may be granted and, if it decides in favour of a grant, shall then proceed to determine the terms, taking into account any terms agreed by the parties.

(2) In determining the terms under subsection (1) of this section, the court shall ensure that the compulsory licence-

(a) entitles the licensee to do any act specified in section 28 of this Law, except importation, unless the application was made under section 47;

(b) does not entitle the licensee to grant further licences, without the consent of the owner of the patent;

(c) is non-exclusive; and

(d) provides for the payment to the owner of the patent of remuneration which is equitable having regard to all the circumstances of the case.

(3) The terms determined by the court shall be deemed to constitute a valid contract between the parties and shall be governed by the provisions of Part VIII of this Law.

(4) A representative of the Secretary shall have the right to appear and be heard by the court at the hearing of an application for a compulsory licence.

Transfer of compulsory licences

50. A compulsory licence may be transferred only with the industrial undertaking in which the relevant invention is used and no such transfer shall be valid except with the approval of the Tribunal.

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