Legislative Implementation of Flexibilities - China

Title:	Articles 48-54 of the Patent Law of 12/03/1984 as last amended on 27/12/2008 and Article 1 State Intellectual Property Office Order # 37 of November 2005
Field of IP:	Patents
Type of flexibility:	Compulsory licenses and government use
Summary table:

Provisions of Law

Chapter VI Compulsory License for Patent Exploitation

Article 48 - In any of the following cases, the patent administrative department under the State Council may, upon the application of that entity or individual, grant a compulsory license to exploit the patent for the invention or utility model.

(1) where the patentee after the expiration of three years from the date of granting the patent right, and the expiration of four years from the date of filing, has not exploited the patent or has not sufficiently exploited the patent without any justified reasons;

(2) where it has been legally determined that the enforcement of the patent right by the patentee is an act of monopoly, to avoid or to eliminate the adverse effects caused to competition.

Article 49 - Where a national emergency or an extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative department under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

Article 50 - For the purpose of public health, the patent administrative department under the State Council may grant a compulsory license to manufacture a drug which has been granted a patent right in China and to export it to the countries or regions specified in related international conventions in which China is a contracting member.

Article 51 - Where the invention or utility model for which the patent right has been granted constitutes important technical advance of considerable economic significance compared with another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the patent administrative department under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.

Where, according to the preceding paragraph, a compulsory license is granted, the patent administrative department under the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

Article 52 - Where the invention-creation covered by the compulsory license relates to semi-conductor technology, the exploitation under the compulsory license is limited to the use for the purpose of public interest and the conditions specified in Article 48(2).

Article 53 - Except as otherwise provided for in Article 48(2) and 50 of this Law, the compulsory license is used mainly for the supply of the domestic market.

Article 54 - Any entity or individual applying a compulsory

license in accordance with the provisions of Article 48(1) or Article 51 of this Law, shall provide proof that it or he has made requests for a license to the patentee to exploit the patent on reasonable conditions but was not licensed within a reasonable period of time.

Article 1 of the State intellectual Property Office Order # 37 of November 2005

In order to deal with public health problems facing our country (editor's note: hereinafter called China), to help countries and districts concerned to deal with public health problems they face, and to implement the "Declaration on the TRIPS Agreement and Public Health" of the WTO Ministerial Conference in Doha (hereinafter called "Doha Declaration") and the "Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health" of the WTO General Council (hereinafter called "General Council Decision"), SIPO formulated these measures in accordance with the Patent Law of the PRC (hereinafter called "Patent Law").