- After 3 years from the date of grant of any patent, any person may make an application to the controller requesting for compulsory grant if,
- the patented invention has not fulfilled the requirements of the public; or
- the patented invention is not affordable for the public; or
- the patented invention is not working / worked in the territory of India
- including the licensee of a patent, any person can make an application to the Controller for compulsory license of a patent if the patent falls under any of the three above reasons
- the application for compulsory license shall be submitted along with the reason (nature of the applicant’s interest towards the invention) for which the application is submitted to the Controller as prescribed
- the Controller as he thinks fit may grant a Compulsory license as per the terms mentioned in the application if he is convinced that the patent falls under any of he above three categories
- When the Controller grants a Compulsory license for a patent; he may execute his powers to even cancel the existing license made or take any action as per the law
- before granting a Compulsory license of a patent the Controller shall consider the following circumstances
- nature of the invention, period after the grant of patent and the steps taken by the patentee or licensee to make full use of the invention,
- the ability of the applicant for compulsory license to take the invention to public use,
- capacity of the applicant for compulsory license to invest in capital and working of the invention if he is granted a compulsory license
- if the applicant for compulsory grant has already tried to obtain license from the patentee based on reasonable terms and conditions and was unsuccessful for a long period (at least 6 months)
- this reason does not apply when the invention was used for national emergency situations or urgency when the patentee has used the invention non-commercially or for competitive purposes and the Controller shall not take these factors to the consideration for not granting a Compulsory license.
- The requirements of the public shall be considered not satisfied by the invention if,
- a patentee has refused to grant a license stating any of the following reasons,
- use of the invention in business or by any industry or being manufactured in India is against the law, or
- demand for the patented product or process is not so good, or
- no developed or existing market is available for the product to be exported, or
- establishing or developing the commercials for the patented product is against the law.
- the patentee upon licensing the invention imposed any conditions regarding the patent to do any activities on purchase or use or manufacture or sale of materials not protected by the patent or establish or develop a business that is against the law
- the patentee imposes conditions on the licensee to give back the exclusive license or prevention to challenges to the validity of the patent or creates a licensing package that threatens the business
- the patented invention is not sold or made available to the maximum possible commercial scale even though it is possible to be scaled up,
- any imported product or process from abroad prevents or hinders the business of the patented invention in the territory of India and the same is done by,
- the patentee or licensee or co-owners
- persons who purchase the product or process from him
- any other persons on whom the patentee has not filed any infringement suit or proceedings
- a patentee has refused to grant a license stating any of the following reasons,