China's State Intellectual Property Office (SIPO) is able to
issue compulsory patent licenses where an entity or individual who
is otherwise qualified to exploit a patent does not succeed in
obtaining a license on reasonable terms and within a reasonable
period from the patent holder. The new Patent Law of the
PRC (the "Patent Law") and the
Implementing Rules of the Patent Law of the PRC (the
"Implementing Rules") both contain
provisions regarding the compulsory licensing of patents. On
October 12, 2011, the SIPO issued a circular to solicit public
comments on the Amendments to the Measures on Compulsory Patent
Licensing (Draft for Comments) (the "Draft
Amendments"). The SIPO will be taking comments until
November 13, 2011.
The Draft Amendments provide more detailed rules governing the
submission and approval of compulsory licensing applications, the
application examination procedures followed by the SIPO, and the
calculation of licensing fees. The Draft Amendments also specify
the conditions under which compulsory patent licenses will be
granted as well as the conditions under which they will be
terminated. The Draft Amendments specify that where patent rights
have been granted for more than three years and where a patent
application has been submitted for more than four years, if the
patent holder fails to exploit or fully utilize the patent rights
without justification for not doing so, qualified entities or
individuals with the capacity to exploit such a patent may file
applications with the SIPO for a compulsory license. For more
information, please refer to:
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