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Legislative Implementation of Flexibilities - Brunei Darussalam

Title:Sections 55-65 of the Patents Order No. S42/99 of 1999
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

55. (1) At any time after the expiration of 3 years from the date of the grant of a patent or 4 years from the date of filing of the patent application, whichever is the later, any person interested may apply to the court for the grant of a licence under the patent upon any of the grounds specified in subsection (2).

The grounds upon which a licence may be granted under this section are that the market in Brunei Darussalam for the patented invention is not being supplied -

due to the failure to work or, to work to a sufficient extent, the patented invention; or

on reasonable terms,

by the proprietor of the patent.

Subject to this section, if the court is satisfied that either of the grounds referred to in subsection (2) is established, the court may make an order for the grant of a licence in accordance with the application upon such terms as the court thinks fit.

A licence granted under this section -

shall be non-exclusive;

may not be assigned otherwise than in connection with that part of the enterprise or the goodwill of the business in which the patented invention is used;

may only authorize use of the patented invention predominantly for the supply of the market in Brunei Darussalam; and

shall be limited in the scope and duration of the use of the patented invention to the purpose for which it is to be authorized.

Any licence granted under this section may, on the application of any interested party, be terminated by the court where the court is satisfied that the ground upon which the licence was granted has ceased to exist and is, in the opinion of the court, unlikely to recur, provided that the legitimate interests of the licensee are not likely to be adversely affected by the revocation.

Where a licence is granted under this section to any person, that person shall pay such remuneration to the proprietor of the patent as may be agreed, or as may be determined by a method agreed, between that person and the proprietor or the patent or, in default of agreement, as is determined by the court on the application of that person or the proprietor of the patent.

No licence shall be granted under this section -

Unless it is established that within a reasonable period of time, the applicant for the grant of the licence has been unable after reasonable efforts to obtain a licence on reasonable terms and conditions from the proprietor of the patent; or

If the application for a licence under this section is in connection with a patented invention which deals with a layout design, except to remedy a practice which is determined by the court to be anti-competitive.

The proprietor of a patent ("the second patent") may apply to the court for the grant of a licence under another patent ("the first patent") on the ground that the second patent cannot be worked without his infringing the first patent, and if the court is satisfied that -

The ground is established; and

The invention claimed in the second patent involves an important technical advance of considerable economic significance in relation to the invention claimed in the first patent,

The court may make an order for the grant of a licence in accordance with the application, upon such terms as it thinks fit and insofar as it is necessary to work the invention claimed in the second patent.

Where the court makes an order under subsection (8) the proprietor of the first patent shall be entitled to an order, if he so requires, for the grant of a cross-licence on reasonable terms to work the invention claimed in the second patent.

The licence granted under subsection (8) may not be assigned except with the assignment of the second patent.

Subsections (4)c and (7)a shall not prevent the court from making an order for the grant of a licence to work an invention claimed in a patent against the wishes of the proprietor of the patent if the court is satisfied that the grant of the licence is for the purpose of remedying a practice which it considers to be anti-competitive.

For the purposes of this Part,

"layout design" means the three-dimensional disposition, however expressed of the elements, at least one of which is an active element, and some or all of the interconnections, of an integrated circuit; and includes a three-dimensional disposition prepared for an integrated circuit intended for manufacture; and

"integrated circuit" means a circuit, in its final or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in or on a piece of material and that is intended to perform an electronic function.

PART XII

USE OF PATENTED INVENTIONS FOR SERVICES OF GOVERNMENT

58. (1) Subject to this Part, notwithstanding anything in this Order, any Government department and any person authorized in writing by a Government department may, for the services of the Government and in accordance with this section do any of the following acts in Brunei Darussalam for the services of the Government -

(a) where the patented invention is a product, may make, use, import, obtain or keep the product;

(b) where the patented invention is a process, may use it or, in relation to any product obtained directly by means of the process, do anything mentioned in paragraph (a); and

(c) may dispose or offer to dispose of anything which was made, used, imported, obtained or kept in exercise of the powers conferred by this section and which is no longer required for the purpose for which it was made, used, imported, obtained or kept, as the case may be,

and anything done by virtue of this section shall not amount to an infringement of the patent.

any act done in relation to an invention by virtue of this section is in this section referred to as use of the invention; and "use", in relation to an invention, in sections 59 to 63 shall be construed accordingly.

So far as the invention has before its priority date been duly recorded by or tried by or on behalf of a Government department otherwise than in consequence of a relevant communication made in confidence, any use of the invention by virtue of this section may be made free of any royalty or other payment to the proprietor.

A person acquiring anything disposed of in the exercise of the powers conferred by this section, and any person claiming through him, may deal with it in the same manner as if the patent were held on behalf of the Government.

In this section, "relevant communication", in relation to a patented invention, means a communication of the invention directly or indirectly by the proprietor of the patent or any person from whom he derives title.

59. (1) Any reference in this Part to a patented invention, in relation to any time, is a reference to an invention for which a patent has before that time been, or is subsequently, granted.

In this Part, unless the context otherwise requires, "the services of the government" shall be deemed to include -

The sale or supply of anything for foreign defence purposes;

The supply of anything to avoid prejudice to the security or defence of Brunei Darussalam; and

The supply of anything to assist in the exercise of powers and the implementation of measures during a period of national emergency or other circumstances of extreme urgency,

And "use for the services of the Government" shall be construed accordingly and is limited to public non-commercial use.

In subsection (2) a references to a sale or supply of anything for foreign defence purposes are references to a sale or supply of the thing -

To the government of any country outside Brunei Darussalam is pursuance of an agreement or arrangement between the Government and the government of that country, where the thing is required for the defence of that country or of any other country whose government is party to any agreement or arrangement with the Government in respect of defence matters;

To the United Nations, or to the government of any country belonging to that organization, in pursuance of an agreement or arrangement between the Government and that organization or government, where the thing is required for any armed forces operating in pursuance of a resolution of that organization or any organ of that organization.

60. (1) The right to use a patented invention under section 58 -

shall be non-exclusive;

may not be assigned otherwise than in connection with that part of the enterprise or the goodwill of the business in which the patented invention is used;

is, notwithstanding subsection (2) of section 59, limited to the supply of the patented invention in Brunei Darussalam by a Government department or a person authorized by a Government department under that section.

(2) The right to use a patented invention under section 58 may, on the application of any interested arty, be terminated by the court, where the court is satisfied that the circumstances that gave ride to the right to use the patented invention have ceased to exist and are unlikely to recur.

(3) Except in a case to which section 64 applies, the right to use a patented invention under section 58 is subject to the Government department or the person authorized by a Government department under section 58 having first taken all reasonable steps to obtain the consent of the proprietor of the patent to the use of the patented invention on reasonable commercial terms and conditions, and having failed to obtain such consent within a reasonable period of time.

64. (1) Subject to this Part, the powers exercisable in relation to an invention by a Government department or a person authorized by a Government department under section 58 shall include power to use the patented invention for any purpose which appears to the department necessary or expedient -

to avoid prejudice to the security or defence of Brunei Darussalam or for the efficient prosecution of any war in which Brunei Darussalam may be engaged;

to assist in the exercise of powers and the implementation of measures during a period of national emergency or other circumstances of extreme urgency; or

for public non-commercial purposes,

and any reference in this Order to the services of the Government shall, as respects any period of national emergency, include a reference to those purposes.

(2) In this section, the use of a patented invention includes, in addition to any act constituting such use by virtue of section 58, any act which would, apart from that section and this section, amount to an infringement of the patent or, as the case may be, give rise to a right under section 76 to bring proceedings in respect of the application, and any reference in this Oder to " use for the services of the Government" shall, as respects any period of national emergency, be construed accordingly.

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