A.38
Licences in
respect of
dependent
patents
Termination
of contracts
relating to
licences
Invalidation
of patents
34. (1) If the exploitation of a patent (in this section referred to as
“the later patent”) is dependent upon the obtaining of a licence under an
earlier patent, the patentee in respect of the later patent may apply to the
High Court for an order to be issued a licence to exploit the earlier
patent, and the order may be granted on such conditions as may be
imposed, including a condition that such licence may be used only for
the purpose of permitting the later patent to be exploited.
(2) The Court shall not grant an order under this section unless 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.
(3) Where a holder of a plant variety right cannot exploit his or her
right without infringing a prior patent, the holder may apply for a
compulsory licence for the non-exclusive use of that patent, to the extent
necessary to allow the exploitation of the plant variety right.
(4) Where a patentee of a biotechnological invention cannot exploit
the patent without infringing a prior plant variety right, the patentee
may apply for a compulsory licence for the non-exclusive use of the
plant variety right, to the extent necessary to allow the exploitation of
such patent.
(5) The High Court may, on an application made to it by the patentee
in respect of an earlier patent or plant breeder’s right, as the case may
be, grant an order for the issue of a licence to use the invention claimed
in the later patent or plant breeder’s right.
(6) A licence granted under this section shall not be transferable except
in conjunction with the transfer of the licence in respect of the later
patent.
(7) The provisions of section 31 (1) regarding the remuneration due
to the owner of the patent shall apply to licences issued under this section.
35. Any contract relating to a licence to exploit a patent shall terminate
on the date on which the patent under which the licence was granted
expires, is revoked or otherwise ceases to protect such invention.
36. (1) The Registrar or the High Court may, on the application of
any interested party, invalidate a patent if it is found —
(a) that the patent is not an invention within the meaning of the term
as defined under this Act;
(b) that the patentee is not a person entitled, under section 10, to
apply for a patent;
(c) that the patent concerned is not patentable under section 8;
(d) that the invention is a matter which should have been excluded
from patent protection;
(e) that the patentee’s application did not satisfy the requirements of
section 12 (4), (5), (7) and (8) and corresponding regulations, or
that the conditions under section 13 (3) or 15 (1), where applicable,
were not complied with.