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Legislative Implementation of Flexibilities - Antigua and Barbuda

Title:Sections 13-14 of the Patent Act No. 23 of 2003
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

13. Exploitation by Government or person thereby authorized

(1) Where:

(a) the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy so requires, or

(b) the Registrar has determined that the manner of exploitation, by the owner of the patent or his licensee, is anti-competitive, and the Minister is satisfied that the exploitation of the invention in accordance with this subsection would remedy such practice,

(c) The Minister may decide that, even without the agreement of the owner of the patent, a Government agency or a third person designated by the Minister may exploit the invention.

(2) The exploitation of the patented invention shall be limited to the purposes for which it was authorized and shall be subject to the payment to the owner of an adequate remuneration therefor,taking into account the economic value of the Minister's authorization, as determined in the decision, and, where a decision has been taken under paragraph (b) of subsection (I), the need to correct anti-competitive practices.

(3) A request for the Minister's authorization shall be accompanied by evidence that the owner of the patent has received, from the person seeking the authorization, a request for a contractual licence, but that that person has been unable to obtain such a licence on reasonable commercial terms and conditions and within a reasonable time.

(4) Subsection (3) shall not apply in cases of:

(a) national emergency or other circumstances of extreme urgency provided, however, that in such cases the owner of the patent shall be notified of the Minister's decision as soon as reasonably practicable;

(b) public non-commercial use, and

(c) anti-competitive practices determined as such by a judicial or administrative body in accordance with subsection (1) b).

(3) 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 a judicial or administrative body has determined that the manner of exploitation of the patented invention, by the owner of the patent or his licensee, is anticompetitive and if the Minister is satisfied that the issuance of the non-voluntary licence would remedy such practice.

(4) The authorization shall not exclude:

(a) the conclusion of licence contracts by the owner of the patent; or

(b) the continued exercise, by the owner of the patent, of his rights under section 1 l(2); or

(c) the issuance of a non-voluntary licence under section 14.

(5) Where a third person has been designated by the Minister, the authorization may only be transferred with the enterprise or business of that person or with the part of the enterprise or business within which the patented invention is being exploited.

(6) The exploitation of the invention by the Government agency or third person designated by the Minister shall be predominantly for the supply of the market in Antigua and Barbuda.

(7) Upon request of the owner of the patent, of the Government agency or of the third person authorized to exploit the patented invention, the Minister may, after hearing the parties, if either or both wish to be heard, vary the terms of the decision authorizing the exploitation of the patented invention to the extent that changed circumstances justify such variation.

(8) Upon the request of the owner of the patent, the Minister shall terminate the authorization if he is satisfied, after hearing the parties, if either or both wish to be heard, that the circumstances which led to his decision have ceased to exist and are unlikely to recur or that the Government agency or third person designated by him has failed to comply with the terms of the decision.

(9) Notwithstanding subsection (lo), the Minister shall not terminate the authorization if he is satisfied that the need for adequate protection of the legitimate interests of the Government agency or third person designated by him justifies the maintenance of the decision.

(10) The decisions of the Minister under subsections (1) to (1 1) may be the subject of an appeal before the High Court.

14. Non-Voluntary Licences.

(1) On request, made to the Registrar 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, the Registrar may issue a non-voluntary licence if he is satisfied that the patented invention is not exploited or is insufficiently exploited, by working the invention locally or by importation, in Antigua and Barbuda.

(2) Notwithstanding subsection (I), a non-voluntary licence shall not be issued if the owner of the patent satisfies the Registrar that circumstances exist which justify the non-exploitation or insufficient exploitation of the patented invention in Antigua and Barbuda.

(3) The decision issuing the non-voluntary licence shall fix

(a) the scope and function of the licence,

(b) the time limit within which the licensee must begin to exploit the patented invention, and

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

(4) The beneficiary of the non-voluntary licence shall have the right to exploit the patented invention in Antigua and Barbuda according to the terms set out in the decision issuing the licence, shall commence the exploitation of the patented invention within the time limit fixed in the said decision and, thereafter, shall exploit the patented invention sufficiently.

(5) If the invention claimed in a patent ("later patent") cannot be exploited in the country without infringing a patent granted on the basis of an application benefiting from an earlier filing or, where appropriate, priority date ("earlier patent"), and provided that 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 Registrar, upon the request of the owner of the later patent, may issue a non-voluntary licence to the extent necessary to avoid infringement of the earlier patent.

(6) Where a non-voluntary licence is issued under subsection (9, the Registrar, upon the request of the owner of the earlier patent, shall issue a non-voluntary licence in respect of the later patent.

(7) In the case of a request for the issuance of a non-voluntary licence under subsections (5) and (6), subsection (2) shall apply mutatis mutandis with the proviso that no time limit needs to be fixed.

(8) In the case of a non-voluntary-licence issued under subsection (9, the transfer may be made only with the later patent, or, in the case of a non-voluntary licence issued under subsection (6), only with the earlier patent.

(9) The request for the issurance of a non-voluntary licence shall be subject to payment of the prescribed fee.

(10) Section 13 (2) to (1 0) shall apply mutatis mutandis.

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