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Background of Compulsory Licensing in North America
Background of Compulsory Licensing in North America
What is a Compulsory License
What is a Compulsory License
Mexico - compulsory licenses can be granted Canada- limited use of
Mexico - compulsory licenses can be granted Canada- limited use of
Mexico
Mexico
Significant statutory changes in October,1996 Liberal grant of
Significant statutory changes in October,1996 Liberal grant of
Three years from grant application for license may be made to
Three years from grant application for license may be made to
Demand in Canada for patented product is not being adequately met on
Demand in Canada for patented product is not being adequately met on
1910 - reasonable compensation for U.S. Government use of patented
1910 - reasonable compensation for U.S. Government use of patented
1948 - US enacted 28 U.S.C. Sec
1948 - US enacted 28 U.S.C. Sec
Whenever an invention described in and covered by a patent of the U.S
Whenever an invention described in and covered by a patent of the U.S
Sometime cited 496 F.2d 535 (U
Sometime cited 496 F.2d 535 (U
The US Government does not get a license They use the patented
The US Government does not get a license They use the patented
Source Material
Source Material

Презентация на тему: «Background of Compulsory Licensing in North America». Автор: d2kinstaller. Файл: «Background of Compulsory Licensing in North America.ppt». Размер zip-архива: 74 КБ.

Background of Compulsory Licensing in North America

содержание презентации «Background of Compulsory Licensing in North America.ppt»
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1 Background of Compulsory Licensing in North America

Background of Compulsory Licensing in North America

M. ANDREA RYAN IMMEDIATE PAST PRESIDENT, AIPLA ASSISTANT GENERAL COUNSEL, PATENTS WYETH/U.S.A.

2 What is a Compulsory License

What is a Compulsory License

“Compulsory licensing takes place when a government allows a third party to produce a patented product or use a patented process without the consent of the patent owner.” WHO and WTO Joint Report Term does not appear in TRIPS Agreement TRIPS Article 31- “….use without authorization of the right holder”

3 Mexico - compulsory licenses can be granted Canada- limited use of

Mexico - compulsory licenses can be granted Canada- limited use of

compulsory licenses USA- no compulsory licenses

North American Perspective

4 Mexico

Mexico

Compulsory Licenses can be granted: If granted patentee gets an additional 1 year to exploit after notice of license is given no working for three years non-working is unjustified by patentee applicant is technically capable of making Will not be granted if patentee was importing the patented product or a product obtained from a patented process (ie import from USA)

5 Significant statutory changes in October,1996 Liberal grant of

Significant statutory changes in October,1996 Liberal grant of

compulsory licenses for pharmaceuticals was removed from law

Canada

6 Three years from grant application for license may be made to

Three years from grant application for license may be made to

Commissioner if there has been “abuse” of the exclusive rights If satisfied that abuse of rights has been established, compulsory license can be granted by Commissioner

What Remains in Canada ?

7 Demand in Canada for patented product is not being adequately met on

Demand in Canada for patented product is not being adequately met on

reasonable terms Trade or industry in Canada is unfairly prejudiced by the lack of a license or a variety of other acts Very few compulsory licenses have been granted since 1996

“Abuse of Rights in Canada”

8 1910 - reasonable compensation for U.S. Government use of patented

1910 - reasonable compensation for U.S. Government use of patented

inventions 1917 - US Government war effort to create a patent pool for essential aircraft patents

USA

9 1948 - US enacted 28 U.S.C. Sec

1948 - US enacted 28 U.S.C. Sec

1498 - no license is needed by the U.S. Government or contractors In protecting competition in mergers, licensing may be required

USA

10 Whenever an invention described in and covered by a patent of the U.S

Whenever an invention described in and covered by a patent of the U.S

is used or manufactured by or for the U.S. without license of the owner thereof…, the owner’s remedy shall be by action against the U.S…. for the recovery of his reasonable and entire compensation for such use and manufacture.

28 U.S.C. 1498

11 Sometime cited 496 F.2d 535 (U

Sometime cited 496 F.2d 535 (U

S. Ct. Cl. 1974) Meprobamate (tranquilizer) Compulsory license was not a litigated issue Patent was found invalid

Carter-Wallace v. U.S.

12 The US Government does not get a license They use the patented

The US Government does not get a license They use the patented

invention without a license They pay compensation in the form of lost profits or reasonable royalty

Compensation not Compulsory License

13 Source Material

Source Material

Treating the Legal Side Effects of CIPRO: A Reevaluation of Compensation Rules For Government Taking of Patent Rights, Daniel R.Cahoy, 40 Am.Bus.L.J.(Forthcoming 2002) has a detail discussion of the US system of compensation

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