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Government Gazette 23 March 2012
Act No. 1, 2012
No. 4907
INDUSTRIAL PROPERTY ACT, 2012
but must record the grant thereof in the appropriate register and must publish a reference
to such grant in the bulletin.
(2)
A compulsory licence has no effect against third parties until the
recordal under subsection (1) has been effected.
(3)
The recordal of the grant of a compulsory licence effected under
subsection (1) may be cancelled on request to the Registrar in the prescribed manner,
accompanied by proof that such licence has expired or has been terminated.
Licences of right
62.
(1)
At any time after the date of the grant and sealing of a patent,
the owner of a patent may apply to the Registrar for the patent to be endorsed with the
words “licences of right” and where such an application is made the Registrar must, if
satisfied that the patent owner is not precluded by contract from granting licences under
the patent, cause the patent to be endorsed accordingly.
(2)
Where a patent has been endorsed under this section –
(a)
any person is at any time thereafter entitled as of right to a licence under
the patent upon such conditions as may, in the absence of agreement,
be decided by the Tribunal on the application of the patent owner or the
person requiring the licence;
(b)
the Tribunal may, on the application of the holder of any licence
granted under the patent before the endorsement, order such licence to
be replaced by a licence to be granted by virtue of the endorsement on
conditions to be decided by the Tribunal;
(c)
no interdict may, in proceedings for infringement of the patent (other
than by the importation of goods), be granted against the defendant if
he or she undertakes to take a licence upon conditions to be decided by
the Tribunal, and the amount, if any, recoverable from the defendant by
way of damages must in such case not exceed double the amount which
would have been payable by him or her as licensee if such a licence had
been granted before the earliest infringement; and
(d)
the renewal fee payable in respect of the patent after the date of the
endorsement is one half of the renewal fee which would have been
payable if the patent had not been so endorsed.
(3)
The licensee under a licence granted by virtue of the endorsement of a
patent in terms of this section may, (unless in the case of a licence where the conditions
are determined by agreement, the licence otherwise expressly provides), call on the
patent owner to institute proceedings in respect of any infringement of the patent, and if
the patent owner fails to do so within two months after being so called upon, the licensee
may institute proceedings for the infringement in his or her own name as if he or she
were the owner of the patent, joining the patent owner as a defendant.