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Legislative Implementation of Flexibilities - Barbados

Title:Articles 49 and 50 of the Patent Act No. 18 of 26/07/2001
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Use by Government or Third Party

[Exploitation by Crown, government agency or person named.]

49.-(1) Where:

(a) the exploitation within Barbados of an invention protected by patent is, in the opinion of the Minister, necessary

(i) in the interests of national security;

(ii) in the interests of national health;

(iii) in the interests of national nutrition;

(iv) in the interests of the development of an essential sector of the economy of Barbados; or

(v) for other public interests;

(b) the High Court has determined that the manner of exploitation by the owner of a patent or his licensee is anti-competitive,

the Minister may, without the consent of the owner of the patent, but subject to the payment of a reasonable amount for its exploitation, authorize by order the exploitation of the invention in Barbados by the Crown, by a government agency or by any person named in the order.

(7) The exploitation of a patented invention in the field of semi-conductor technology shall only be authorized either for public non-commercial use or where the High Court has determined that the manner of exploitation of the patented invention, by the owner of the patent or his licensee, is anti-competitive and if the Minister is satisfied that the grant of the authorization would remedy such practice.

(10) The exploitation of the invention by the Crown, government agency or third person referred to in subsection (1), shall be predominantly for the supply of the market in Barbados and shall be limited to the purposes for which it was authorized.

50. (1) After the expiration of a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last, any person interested may apply to the High Court for the grant of a non-voluntary licence under a patent, on the ground that the patented invention is not exploited or is insufficiently exploited by working the invention locally or by importation in Barbados.

(2) Notwithstanding subsection (1), a non-voluntary licence shall not be issued if the owner of the patent satisfies the High Court that circumstances exist which justify the non-exploitation or insufficient exploitation of the patented invention in Barbados.

(3) The High Court shall make an order setting out

(a) the scope and function of the licence;

(b) the time limit within which the licensee shall begin to exploit the patented invention; and

(c) the amount to be paid to the owner of the patent and the conditions of payment.

(4) Any person to whom a licence is granted under this section, shall exploit the patented invention in Barbados in accordance with the terms of the order under subsection (3), and shall exploit the patented invention sufficiently.

(5) Where:

(a) the invention claimed in a patent, (in this section referred to as the "later patent") cannot be exploited in Barbados without infringing a patent granted on the basis of an application benefiting from an earlier application, in this section referred to as the "earlier patent"; and

(b) 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 High Court may, upon the request of the owner of the later patent, issue a non-voluntary licence to the extent necessary to avoid infringement of the earlier patent.

(6) Where a non-voluntary licence is granted under subsection (5), the High Court shall, upon the request of the owner of the earlier patent, issue a non-voluntary licence in respect of the later patent.

(7) In the case of the grant of a non-voluntary licence under subsection (5), subsection (3) applies, mutatis mutandis, with the exception that no time limit need be fixed.

(8) In the case of a non-voluntary licence issued under subsection (5), the transfer may be made only with the later patent, or, in the case of a non-voluntary licence granted under subsection (6), only with the earlier patent.

(9) A licence granted under this section:

(a) is not exclusive;

(b) shall not be assigned otherwise than in connection with the goodwill of the business in which the patented invention is used; and

(c) is limited to the supply of the patented invention predominantly in Barbados.

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