Sections 82 to 98 deal with these matters.
Section 84 provides that at any time after the expiration of
3 years from the date of the sealing of a patent any person interested may make
an application to the controller alleging that the reasonable requirements of
the public with respect to the patented invention have not been satisfied or
that the patented invention is not available to the public at a reasonable
price and praying for the grant of a compulsory licence to work the patented
invention.
Further, the application for a compulsory licence may be
made by any person notwithstanding that he is already the holder of a licence
under the patent. No person shall be estopped from alleging that the reasonable
requirements of the public with respect to the patented invention are not
satisfied or that the patented invention is not available to the public at a
reasonable price by reason of any admission made by him, whether in such a
licence or otherwise or by reason of his having accepted such a licence.
Further every application for the grant of a compulsory
licence shall contain a statement setting out the nature of the applicant's
interest together with such particulars as may be prescribed and the facts upon
which the application is based.
Section 85 provides the maters to be considered for granting
the licence. In determining whether or not to make an order in pursuance of the
application for grant of a licence, the controller shall take into account:
(a) the nature of
the invention, the time which has elapsed since the sealing of the patent and
the measures already taken by the patentee or any licensee to make full use of
the invention;
(b) the ability of
the applicant to work the invention to the public advantage and
(c) the capacity of
the applicant to undertake the risk in providing capital and working the
invention if the application were granted.
section 84(5) provides that the controller, if satisfied
that the reasonable requirements of the public with respect to the patented
invention have not been satisfied or that the patented invention is not
available to the public at a reasonable price, may order the patentee to grant
a licence upon such terms as he may deem fit.
Section 86 provides that at any time after the expiration of
3 years from the date of Sealing of a patent, the central government may make
an application to the Controller for an order that the patent may be endorsed
with the words "Licences of right" on the ground that the reasonable
requirements of the public with respect to the patented invention have not been
satisfied or that the patented invention is not available to the public at a
reasonable price. The controller, if satisfied may make an order that the
patent be endorsed with the words "licences of right". Section 87
enumerates certain patents which shall be deemed to be endorsed with the words "licences
ofright".
Section 88 provides for the effect of endorsement of patent
with the words "licences of right". In such a situation, any person
who is interested in working the patented invention in India may require the
patentee to grant him a licence for the purpose on such terms as may be
mutually agreed upon notwithstanding that he is already the holder of a licence
under that patent. If the parties are unable to agree on the terms of the
license, either of them may apply to the controller to settle the terms thereof.
Section 89 provides for revocation of patents by the
controller for non-working. It may so happen that in spite of the grant of a
compulsory licence or the endorsement "Licences of right" having been
made or deemed to have been made, the reasonable requirement of the public with
respect to the patented invention remains unsatisfied or that the patented
invention is not available to the public at a reasonable price. In such a
situation the patent may be revoked by the controller on an application to that
effect either by the Central Government or any person interested.
Section 94 mentions the general purposes for granting the
compulsory licences. Licences are granted with a view to securing the following
purposes:
(a) that patented inventions
are worked on a commercial scale in India without undue delay and to the
fullest extent that is reasonably practicable;
(b) that the
interests of any person for the time being working or developing an invention
in India under the protection of a patent are not unfairly prejudiced..
Section 95 mentions the terms and conditions of compulsory
licences. In setting the terms and conditions of a compulsory licence, the
controller shall endeavour to secure;
(a) that the-royalty and other remuneration,
if any, reserved to the patentee or other person beneficially entitled to the
patent, reasonable, having regard to the nature of the invention, expenditure
incurred by the patentee in the making the invention or in developing it and
obtaining a patent and keeping it in force and other relevant factors;
(b) that the
patented invention is worked to the fullest extent by the person to whom the
licence is granted and with reasonable profit to him;
(c) that the
patented articles are made available to the public at reasonable
Prices.
However, no licence granted by the controller shall authorise
the licensee to import the patented article or an article or substance made by
a patented process from abroad where such importation would, but for such authorisation,
constitute an infringement of the rights of the patentee.
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