In some cases, national authorities may license companies or individuals other than the patent owner to use the rights of the patent without the consent of the patent owner.
Compulsory licensing in Europe
“Compulsory licensing in Europe” provides a country-by-country overview of compulsory licensing regimes across the 38 EPC contracting states including possible grounds for grant, procedural framework and jurisprudence.
Compulsory licensing of patents is not frequently used throughout Europe, but in certain situations it allows government or government-appointed authorities to override patent holders’ exclusive right to exclude all others from using their inventions. From the patent holder’s perspective, a compulsory licence may seem radical whilst from that of the public interest, it may be a necessity, for example where life-saving inventions are concerned.
Compulsory licences are granted on limited grounds with significant judicial or administrative scrutiny. The various justifications and conditions for this measure are largely based on international agreements, and regional and national legislation. The Paris Convention recognises the countries’ competence for providing compulsory licences to prevent abuses that may result from failure to work the invention or failure to work it on reasonable terms. Decades later, the WTO countries concluded the TRIPS Agreement, which lays down further rules applicable to compulsory licences, in particular grounds for their grant. On an EU level, legal bases for granting compulsory licences are provided for in the 1998 Biotech Directive regarding plant variety rights and, in view of implementing Art. 31bis TRIPS, the EU Regulation No. 816/2006 with regard to the manufacture of pharmaceutical products for export to countries with public health problems.
Most European countries have integrated the regime of granting compulsory licences into their IP legislations, although possible grounds for grant may differ between them. The competent authorities vary as does the procedural framework leading to the grant of a compulsory licence as this depends on the national civil or administrative procedures.
This book has been developed by the European Patent Academy together with the European Patent Lawyers Association (EPLAW) and other patent practitioners.
European Patent Academy