Legislative Implementation of Flexibilities - Estonia
| Title: | Section 47 of the Patent Act of 16/03/1994, as last amended by the Act of 10/03/2004 |
| Field of IP: | Patents |
| Type of flexibility: | Compulsory licenses and government use |
| Summary table: |  |
Provisions of Law
Compulsory licence 47.-(1) Each person interested in using a patented invention and able to use it in the Republic of Estonia may, upon refusal from the patentee to grant a licence, bring action for obtaining a compulsory licence, if:
1. the patentee has not used the invention in the Republic of Estonia within three years from the publication date of a notice of the grant of the patent or within four years from filing the patent application, whereby the term with a later expiration date is taken into account;
2. the extent of the use of the invention by the patentee does not comply with the needs of Estonian domestic market;
3. the patent hinders the use of another invention which is technologically progressive and essential for Estonian economy;
4. the use of the invention is required by State defence, environment protection, public health or other important State interests of the Republic of Estonia, including an urgent necessity to use the invention in connection with natural catastrophes or other emergencies;
5. the patent prevents the grant of protection to a plant variety under the Plant Variety Rights Act (RT I, 1998, 36/37, 553) or the use of a plant variety that has been granted legal protection.
(11) A compulsory licence shall not be granted if the patentee imports, from any member State of the World Trade Organization, a product protected by a patent in the extent meeting the needs of Estonian domestic market.
(2) In cases specified in clause 3 of subsection (1) of this Section, the patentee shall be entitled to obtain a compulsory licence for another invention if no agreement is reached about exchanging licences (reciprocal licence).
(3) Upon granting a compulsory licence, the court shall prescribe the terms of the compulsory licence, including the extent and duration of the use of invention as well as the amount and payment procedure of the licence fee. The extent and duration of the use of the invention are determined on the basis of the needs of Estonian domestic market.
(4) The right to use the invention under a compulsory licence may transfer to another person solely with the enterprise using the compulsory licence or planning to use it pursuant to the terms of the compulsory licence.
(5) The grant of a compulsory licence shall not prevent the patentee from using the invention or from granting licences to other persons.
(6) A compulsory licence is valid as of the date of making an entry in the register. A request for the making of a register entry together with a copy of the court judgment and information certifying payment of the state fee shall be filed with the Patent Office within one month after entry into force of the court judgment.
(7) If circumstances change, both the licensor and the licensee may file an action in court for amendment of the terms of a compulsory licence.