As a compulsory license is issued. Compulsory license. Compulsory license conditions

COMPULSORY LICENSE

a permit issued to an interested person by a competent state authority for the operation of an invention that was not used by the patent owner himself within the time limits established by law without good reason. P.L. can be reclaimed if the patent owner refuses \ "to issue a license, or puts forward conditions that are unacceptable for the licensee in terms of payment, etc. In the Russian Federation, a maximum period is set for the patent owner to start using an invention or industrial design: within 4 years from the date of issue of the patent for an invention and 3 - from the date of issue of a patent for a breeding achievement.After this period, the interested person may apply to the Agency for Patents and Trademarks or the State Commission of the Russian Federation for the Testing and Protection of Breeding Achievements (depending on the type of object for which P l.) with a written application for the issuance of a compulsory license. the size, terms and procedure of payments. I am not below the market price of the license. P.L. has the status of a simple (non-exclusive) license. In this case, the patent owner retains all the rights granted by the patent. The validity period of the item. established up to 4 years. This period may be extended if the inspection confirms that the conditions on the basis of which the P.L. was issued continue to exist. The authority that issued the PL .. cancels it if its owner violates the conditions on the basis of which it was issued. The decision of the state body to issue or cancel P. l. can be challenged in court. When making a decision, the court has the right to change the conditions for the issue of P. l.

Lit .: Lynnik N.V., Kukushkin A.G. Intellectual property: Collection of model contracts. M.,

1995; Sesekin B.A. Determination of the estimated price of the license. M., 1987; Fuck-tengerts L.A. Patent legislation. Normative acts and commentary. M., 1994. :,. ,

V.P. Pavlov

Encyclopedia of the Lawyer. 2005 .

See what a "COMPULSORY LICENSE" is in other dictionaries:

Authorization for the use of patented inventions issued by the competent state authorities, with payment of remuneration to the patent owner. A compulsory license is issued without the consent of the patent owner by decision of the judicial authorities ... ... Financial vocabulary

COMPULSORY LICENSE- a license, in accordance with the terms of which the patent holder does not use the invention for a certain period (usually at least three years) from the date of the patent without good reason. Competent authority upon application ... ... Legal encyclopedia

See License Glossary of Business Terms. Academic.ru. 2001 ... Business glossary

Permission to use patented inventions; issued by the competent state authorities without the consent of the patent owner by the decision of the court or government body. The same bodies determine the conditions under which ... ... Legal Dictionary

Compulsory license- In the cases provided for by this Code, the court may, at the request of an interested person, decide to grant this person, on the conditions specified in the court's decision, the right to use the result of intellectual activity, ... ... Official terminology

compulsory license- priverstinė licencija statusas Aprobuotas sritis sėklininkystė apibrėžtis Licencija, kuri gali būti priverstinai išduodama, jeigu valstybėje trūksta valstybės ūkiui svarbios medios saugomos veamagios… Lithuanian dictionary (lietuvių žodynas)

Intellectual property (in the abbreviation and hereinafter referred to as IP) plays a role in everyday life important role not only for the copyright holders themselves, but also for ordinary people whose needs are met through the use of certain objects of intellectual rights.

In this regard, the legislator for some (most important for society) IP objects in the norms of the Civil Code introduced a rule on the issuance of a license for them compulsorily.

Compulsory license essence

The essence of a compulsory license is that if the patent holder for some of his personal reasons (lack of interest, lack of necessary investment, etc.) does not use or does not use, but not sufficiently, the IP object belonging to him for some time then any person interested in the use of this object may apply to the judicial authorities with a requirement to issue a license to him by compulsory procedure, if the owner of the corresponding patent has refused to conclude a license agreement with him.

What IP objects can be licensed compulsorily?

It should be noted right away that not all IP objects are enforced under the law on the issuance of a license, but only:

1. Inventions;
2. Achievements of breeders;
3. Utility models;
4. Industrial samples.

The above the list is exhaustive... Other IP objects, for example, in the field of copyright or trade secrets, brands, etc. are not subject to compulsory license regulations. And this, of course, has its own explanation.

The fact is that other IP objects do not serve the necessary material needs of society. Thus, the objects of AP (copyright) are aimed at the development of spirituality, which is not directly related to the quality of life, and the IP objects that individualize companies and the special properties of their products directly relate only to the image of the companies themselves and their products.

Industrial property and the achievements of breeders are of much greater importance to society (of course, only in the material sense).

For example, if a breeder has created a special type of grain that allows significant savings on costs and gives increased yields, several times a year, then the state cannot be indifferent to the fact that such a necessary and necessary achievement for the needs of society is not used properly.

Therefore, in relation to IP objects (industrial property), as well as the achievements of breeders, the legislator considered it necessary to introduce appropriate legal norms into the Civil Code, which undoubtedly infringe on the rights of the rightholders of these types of IP objects, but at the same time, allowing society to develop in step with scientific technical progress and meet the necessary needs of people.

Grounds for compulsory issuance of a license

The basis for the compulsory issuance of a license is the corresponding court decision.

Previously, such a basis was the decision of the Supreme Patent Chamber, which, at the request of a person who expressed a desire to conclude a licensing agreement on the type of a non-exclusive license, issued a license to the latter compulsorily, despite the refusal of the rightholder.

Currently, those who wish to obtain a license by compulsory procedure must apply with the relevant claims to the judicial authorities (arbitration), which, in comparison with earlier current legislation, protects the rights of the copyright holder to a much greater extent.

In order to enforce the issuance of a license, the plaintiff must convincingly prove in court that:

• First, the copyright holder does not really use the disputed IP object appropriately;
• Second, that he (the plaintiff) himself is able to ensure the proper use of the IP object (has sufficient investment, has the necessary equipment, specialists, and so on);
• Third, the plaintiff must prove that due to the improper use of the IP object by its rightholder, there is a real shortage of certain goods necessary for society on the market, the production of which is directly related to the use of the IP object that has become the subject of the dispute.

Obviously, under the new conditions, it is not so easy to obtain a license forcibly, therefore the new provisions on a compulsory license most closely meet the interests of the copyright holder and society.

Compulsory license conditions

The conditions for a compulsory license are different for each IP subject to a compulsory license. The difference lies mainly in the time frame after which it is possible to enforce a license from the copyright holder.

Civil Code, N 230-FZ | Art. 1362 of the Civil Code of the Russian Federation

Article 1362 of the Civil Code of the Russian Federation. Compulsory license for invention, utility model or industrial design (current edition)

1. If an invention or industrial design is not used or insufficiently used by the patentee within four years from the date of the grant of the patent, and the utility model - within three years from the date of issue of the patent, which leads to insufficient supply of the corresponding goods, works or services on the market, any a person who is willing and ready to use such an invention, utility model or industrial design, if the patent holder refuses to conclude a license agreement with this person on terms consistent with established practice, has the right to apply to the court with a claim against the patent holder for a compulsory simple (non-exclusive) license to use in the territory Russian Federation invention, utility model or industrial design. In the claim, this person must indicate the conditions proposed by him for granting him such a license, including the scope of use of the invention, utility model or industrial design, the amount, procedure and terms of payments.

If the patentee does not prove that his non-use or insufficient use of the invention, utility model or industrial design is due to valid reasons, the court decides to grant the license specified in the first paragraph of this clause and on the conditions for granting it. The total amount of payments for such a license must be established in a court decision not lower than the price of the license, determined under comparable circumstances.

A compulsory simple (non-exclusive) license may be terminated in court at the suit of the patent holder if the circumstances that led to the granting of such a license cease to exist and their occurrence is unlikely to occur again. In this case, the court establishes the term and procedure for the termination of the compulsory simple (non-exclusive) license and the rights arising in connection with the receipt of this license.

The provision, in accordance with the rules of this clause, of a compulsory simple (non-exclusive) license to use an invention related to semiconductor technology is allowed solely for its non-commercial use in state, public and other public interests or to change a provision that has been recognized as violating the requirements of antimonopoly legislation in accordance with the established procedure Russian Federation.

2. If the patent owner cannot use the invention to which he has an exclusive right without violating the rights of the owner of another patent (first patent) for an invention or utility model, who refused to conclude a license agreement on terms consistent with established practice, the patent) has the right to go to court with a claim against the owner of the first patent for the provision of a compulsory simple (non-exclusive) license to use the invention or utility model of the owner of the first patent on the territory of the Russian Federation. The claim must indicate the conditions proposed by the owner of the second patent for granting him such a license, including the scope of use of the invention or utility model, the amount, procedure and terms of payments. If this patent holder, who has the exclusive right to such a dependent invention, proves that it is an important technical achievement and has significant economic advantages over the invention or utility model of the holder of the first patent, the court decides to grant him a compulsory simple (non-exclusive) license. The right to use the invention, obtained under this license, protected by the first patent, cannot be transferred to other persons, except in the case of alienation of the second patent.

The total amount of payments for a compulsory simple (non-exclusive) license must be established in a court decision not lower than the license price determined under comparable circumstances.

In the event that a compulsory simple (non-exclusive) license is provided in accordance with this clause, the holder of a patent for an invention or utility model, the right to use which is granted on the basis of the specified license, also has the right to obtain a simple (non-exclusive) license to use a dependent invention, in connection with which a compulsory simple (non-exclusive) license was issued, under conditions consistent with established practice.

3. On the basis of a court decision provided for in paragraphs 1 and 2 of this article, the federal executive body for intellectual property shall carry out state registration of the grant and termination of the right to use an invention, utility model or industrial design under the terms of a compulsory simple (non-exclusive) license.

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Commentary on Art. 1362 of the Civil Code of the Russian Federation

1. The commented article provides for the provision of two types of compulsory licenses (in case of non-use or insufficient use by the patentee of patented objects and in the case of so-called dependent inventions), which in the previous legislation were regulated by paragraphs 3 and 4 of Art. 10 of the Patent Law of the Russian Federation.

The institution of compulsory licensing is provided for in the patent laws of most countries of the world, although in practice it has not been widely used.

The institution of compulsory licensing is also reflected in international patent law, for example in Art. 5 (A) Paris Convention for the Protection of Industrial Property (hereinafter - the Paris Convention), Art. 31 Agreements on Trade-Related Aspects of Intellectual Property Rights (hereinafter - the TRIPS Agreement).

2. Clause 1 of the commented article provides for the conditions for granting and terminating a compulsory license in the event of the use or insufficient use by the patentee of a patented invention, utility model or industrial design.

Compulsory licensing on this basis is one of the forms of exemptions from the patent monopoly on a reimbursable basis.

This exception is based on the obligation to use the patented object, which, along with the obligation to pay fees, is a kind of price for a patent monopoly provided by the state. From this point of view, compulsory licensing is a sanction for failure by the patent holder to fulfill the obligation to use the patented subject matter.

The very fact of non-use of a patented invention is qualified by international patent law as an abuse in the exercise of the exclusive right provided by the patent, for the prevention of which the issuance of compulsory licenses is envisaged (Article 5 (A) (2) of the Paris Convention).

A compulsory license has a pronounced penalty character, which, among other things, follows from its name. Therefore, it is the court decision that is the basis for the emergence of this compulsory contractual obligation.

3. The provisions on granting a compulsory license for an invention, utility model or industrial design are largely consistent with the requirements of Art. 31 TRIPS Agreement. There is only no provision stating that a compulsory license can be assigned to another person only in conjunction with the enterprise where the corresponding patented object was used.

4. The provision of a compulsory simple (non-exclusive) license to use the corresponding patented object on the territory of Russia is carried out by filing a lawsuit against the patent owner in court if the following conditions are present simultaneously:

Failure to use or insufficient use by the patentee of patented objects within the permissible periods of their non-use (insufficient use);

Insufficient supply of relevant goods, works or services on the market due to the specified non-use (insufficient use);

The willingness of any person wishing to use these patented objects;

Refusal of the patentee to conclude a license agreement with this person on terms consistent with established practice.

5. It should be noted that the requirements for the mandatory use of patented inventions, utility models or industrial designs have become tougher.

If earlier, in accordance with paragraph 3 of Art. 10 of the Patent Law of the Russian Federation, when assessing the use of patented objects, not only the corresponding actions of the patent holders, but also the persons to whom the rights to these objects were transferred (i.e. licensees) had to be taken into account, then at present such a possibility is excluded.

In other words, in accordance with the commented paragraph, the patent owner cannot justify his inaction by the facts of the use of patented inventions, utility models or industrial designs in accordance with the license agreement provided to him.

6. For the purpose of granting a compulsory license, the definition of “non-use” or “insufficient use” of patented subject matter is essential. In other words, it is necessary to establish what uses by the patentee of the patented subject matter can prevent compulsory licensing.

First, it seems obvious that the use of patented objects should be of an industrial nature, sufficient to saturate the market with appropriate goods, works, and services.

Secondly, not all types of use of patented objects listed in paragraph 2 of Art. 1358 of the Civil Code of the Russian Federation (see the commentary to the specified paragraph) can be recognized as such for the purposes of applying the commented paragraph. So, for example, the manufacture of a patented product or the use of a patented method on the territory of Russia, as well as all secondary uses of these objects (offer for sale, sale, other introduction into civil circulation or storage) can be considered sufficient to avoid compulsory licensing. However, the import into the territory of the Russian Federation of a product patented in the Russian Federation, manufactured abroad, and all subsequent actions for its introduction into civil circulation or storage cannot be recognized as its proper use. In other words, the import into Russia of patented products manufactured in foreign countries cannot replace the location of the production of these products on the territory of Russia.

7. The commented article contains a number of terms that are evaluative concepts and are subject to proof in court in the event of a dispute by persons who put forward requirements for the provision of a compulsory license or for its termination.

Judicial practice under article 1362 of the Civil Code of the Russian Federation:

• Supreme Court decision: Resolution No. VAS-8091/09, Collegium for Civil Relations, supervision

  The court of cassation did not agree with the arguments of the court of appeal, supported the conclusions of the court of first instance also with reference to Articles 1358, 1362 of the Civil Code of the Russian Federation. The Presidium considers that the interpretation of these rules by the courts of first and cassation instances violates the uniformity in the application of the rules of law by arbitration courts ...

• Decision of the Supreme Court: Determination No. VAS-8091/09, Collegium for Civil Relations, supervision

  The court of cassation did not agree with the arguments of the court of appeal, supported the conclusions of the court of first instance also with reference to Articles 1358, 1362 of the Civil Code of the Russian Federation. The panel of judges considers that the interpretation of the said rules by the court of first and cassation instances violates the uniformity in the application of the rules of law by the arbitration courts ...

• Decision of the Supreme Court: Definition No. BAC-13977/11, Supreme Arbitration Court, supervision

  Satisfying the stated requirements, the courts were guided by Articles 1225, 1229, 1233, 1252, 1346, 1350, 1358, 1362 of the Civil Code of the Russian Federation. The applicant's arguments about the violations committed during the patent examination and the lack of proper qualifications of the expert ...

+ More ...

Compulsory license- permission issued by state authorities to the author for the use of a patented invention, utility model or industrial design. In case of prolonged non-use or insufficient use by him of his development and also refusal to sell the license, the compulsory license is a restriction of the author's exclusive right in terms of freedom to dispose of his right.

In Art. 5 of the Paris Convention for the Protection of Industrial Property of 1883, such a permit is explained as a measure to “prevent abuses that may arise as a result of the activity or lack of it by the author. A compulsory license is issued by a court decision and on conditions established by the court (Article 1239 of the Civil Code). The operation of a compulsory simple (non-exclusive) license can be stopped by a court at the suit of the patent holder, in the absence of circumstances that caused the grant of a compulsory license.

Compulsory licenses can be simple (non-exclusive). This type of license applies to the territory within the Russian Federation. The state registration of a compulsory license is carried out by a court decision. The author comes into its own from the moment of state registration. A compulsory license is usually issued to infringing authors.

A compulsory license is issued after the expiration of 4 years from the date of filing a patent application or 3 years from the date of issue of the patent. This provision applies to all countries - parties to the Paris Convention that have ratified the Lisbon and Stockholm editions of the convention.

The issuance of a compulsory license is carried out at the request of an interested person after consideration by the Supreme Patent Chamber of Rospatent. An application for a compulsory license can also be submitted by the person licensed for the patent. A compulsory license is similar to a simple license in terms of content and scope of rights.

In the event that a compulsory simple (non-exclusive) license is provided, the author of a patent for an invention or utility model, the right to use which is granted on the basis of a compulsory license, has the right to obtain a simple (non-exclusive) license to use a dependent invention, in connection with which the compulsory simple (non-exclusive) license.

Disputes regarding the issuance of a license and payment of compensation, as well as the amount of compensation, are resolved in court.

Legislation in many countries is considering the issuance of compulsory licenses for patents that protect food, flavorings and medicines. For example, in India, patents for methods of obtaining medicines are issued for a shorter period.

Write a review on the "Force License" article

Literature

Cornides J. European Union adopts Compulsory Pharmaceutical Export Licensing Regulation. World Intellectual Property Journal 10.1 (2007): 70-77;

A large legal dictionary. - M .: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukhareva. 2003;

Lynnik N. V., Kukushkin A. G. Intellectual property: Collection of standard contracts. M., 1995;

Sesekin B. A. Determination of the estimated price of the license. M., 1987;

Fuck-tengerts L.A. Patent legislation. Normative acts and commentary. M., 1994.

Links

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Excerpt from Compulsory License

- Oh, how good! - she kept saying, running up to Sonya.
Nikolay and Denisov walked through the halls, affectionately and patronizingly looking at the dancers.
“How sweet she is, she will be asavitsa,” said Denisov.
- Who?
- G "Athena Natasha," answered Denisov.
“And how she dances, what a ghasta!” He said after a pause for a while.
- Who are you talking about?
- About sisters "at n" about yours, - Denisov shouted angrily.
Rostov chuckled.
- Mon cher comte; vous etes l "un de mes meilleurs ecoliers, il faut que vous dansiez," said little Jogel, going up to Nikolai. "Voyez combien de jolies demoiselles. [My dear count, you are one of my best students. pretty girls!] - He made the same request to Denisov, also his former student.
- Non, mon cher, je fe "ai tapisse" ie, [No, my dear, I'll sit by the wall,] - said Denisov. “Don't you remember how badly I used your lessons?
- Oh no! - Hastily consoling him, said Yogel. - You were only inattentive, but you had the ability, yes, you had the ability.
The newly introduced mazurka was played; Nikolai could not refuse Iogel and invited Sonya. Denisov sat down with the old women and leaned on his saber, stamping the beat, telling something merrily and making the old ladies laugh, looking at the dancing youth. Iogel in the first pair danced with Natasha, his pride and best student. Softly, gently fingering his feet in shoes, Yogel was the first to fly across the hall with Natasha, who was timid but diligently making a pas. Denisov did not take his eyes off her and tapped time with his saber, with an air that clearly said that he himself did not dance only from what he didn’t want, and not from what he couldn’t. In the middle of the figure, he beckoned Rostov, who was passing by.
“It’s not at all,” he said. “Is this a Polish mazurka?” And he dances well. ”Knowing that Denisov was even famous in Poland for his skill in dancing the Polish mazurka, Nikolai ran up to Natasha:
- Go, choose Denisov. Here is dancing! Miracle! - he said.
When Natasha's turn came again, she got up and quickly fingering her shoes with bows, shyly, she ran alone across the hall to the corner where Denisov was sitting. She saw that everyone was looking at her and waiting. Nikolai saw that Denisov and Natasha were arguing with a smile, and that Denisov refused, but smiled happily. He ran up.
- Please, Vasily Dmitritch, - Natasha said, - let's go, please.
- Yes, thank you, Mr. Athena, - said Denisov.
- Well, that's enough, Vasya, - said Nikolai.
“They’re trying to persuade Vaska the cat,” Denisov said jokingly.
“I’ll sing to you all evening,” said Natasha.
- The sorceress will do everything to me! - said Denisov and unfastened his saber. He stepped out from behind the chairs, took his lady firmly by the hand, lifted his head and put his foot aside, expecting the beat. Only on horseback and in the mazurka, Denisov's small stature was not visible, and he seemed to be the same fellow as he felt himself. After waiting for the beat, he glanced from his side, triumphantly and playfully, at his lady, unexpectedly tapped with one foot and, like a ball, bounced elastically off the floor and flew along in a circle, dragging his lady along with him. He was flying inaudibly half of the hall on one leg, and it seemed that he did not see the chairs standing in front of him and rushed straight towards them; but suddenly, snapping his spurs and spreading his legs, he stopped on his heels, stood there for a second, pounded his feet in one place with a crash of spurs, spun quickly and, snapping his right foot with his left foot, again flew in a circle. Natasha guessed what he intended to do, and, not knowing how, watched him - surrendering herself to him. Now he circled her, now on his right, now on his left hand, now falling to his knees, he drew her around him, and again jumped up and started forward with such impetuosity, as if he intended to run across all the rooms without catching his breath; then suddenly he stopped again and did again a new and unexpected knee. When he, briskly circling the lady in front of her place, snapped his spur, bowing before her, Natasha did not even sit down to him. She stared at him in bewilderment, smiling as if she did not recognize him. - What is it? She said.

Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is not true.

You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.

Game? Wrong word... The correct word is "imprinting".

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.

For the first few days, newborns in the USSR saw their mother for a minimum of feeding time, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The reception is wild in its essence and effectiveness.

All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your way could do anything with you, because you were drawn to them, and others were repelled. And even now they can.

You cannot fix this - imprinting is one-time and for life. It is difficult to understand this, the instinct took shape when you were still very far from the ability to formulate. Since that moment, no words or details have survived. Only facial features remained in the depths of my memory. Those traits that you consider to be your own.

3 comments

System and Observer

Let's define a system as an object, the existence of which is beyond doubt.

An observer of a system is an object that is not part of the system he observes, that is, it determines its existence, including through factors independent of the system.

From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.

An internal observer is a potentially achievable object for the system in relation to which inversion of observation and control channels is possible.

An external observer is even a potentially unreachable object for the system, located beyond the system's event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross-section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of "gravitational radiation" by an object increases its chaos and is perceived by us as the passage of time. An object that is opaque for "gravitational radiation", the capture cross section of which is larger than the geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, with the help of pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching the maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no sufficiently large capture cross section on the trajectories of objects to absorb these particles. The rest of the assumptions remain the same as for the first hypothesis, except:

Time flow

Outside observation of an object approaching the event horizon of a black hole, if the “external observer” is the determining factor of time in the universe, will slow down exactly twice - the black hole's shadow will block exactly half of the possible trajectories of “gravitational radiation”. If the “inner observer” is the determining factor, then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the side.

Also, the possibility of combining these hypotheses in one proportion or another is not excluded.