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Termination of Compulsory License, Related Rules - YouTube
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now 94 talks about termination
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termination of a license won on an
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application made by the patentee or any
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other person deriving title or interest
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in the pattern the compulsory license
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and granted under 84 may be terminated
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by the controller if and when the
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circumstances that gave rise to the
[36]
grant thereof no longer exists and such
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circumstances are unlikely to record so
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the patentee can approach if the
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circumstances of grant no longer exist C
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is the only ground on which the grant
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occurred was the fact that it was not
[54]
locally manufactured and the patentee
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after a year or so starts local
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manufacture then the patentee can
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approach the patent controller to say
[62]
that now that local manufacturer said
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this by me the grant can be revoked
[68]
provided that the holder of the
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compulsory license shall have the right
[70]
to object to such termination so again
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there is some kind of an opposition
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proceeding here if the patentee makes an
[78]
application for termination
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the right holder the compulsory licensee
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can oppose it and he can object to it
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too while considering an application
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under subsection 1 the controller shall
[90]
take into account the interest of a
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person who had previously been granted
[95]
the license is not dually prejudiced so
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in looking at a termination it will
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ensure that the rights of a person who
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is enjoying the license is not unduly
[107]
prejudiced so there are certain rules
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pertaining to the chapter on compulsory
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license no 96 states that an application
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for a compulsory license under Section
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84 or 85 91 92 and 92 a you should
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understand that section those section 85
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is mentioned here section 85 is not an
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application for a compulsory license
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rather it's an application for
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revocation but nevertheless since 85 is
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tied to 84 you find that 85 is also
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mentioned here so shall be informed 17
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or
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19 as the case may be so there are two
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forms form 17 and form 19 except in the
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case of an application made by the
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central government the application will
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set out the nature of the person's
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interest and the terms and conditions
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the applicant is willing to have accept
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so if a government makes an application
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there is no need to mention the interest
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if a person or a party other than the
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government makes an application then the
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terms and conditions he is willing to
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accept and he should set out the
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interest involved in the patent now 97
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states when a prima facie case is not
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made up now we saw that in Section 87
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the procedure dealing with the grant of
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compulsory licenses the first
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requirement is that the controller has
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to be satisfied that a primary facie
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case has been made out for making an
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order so the prime officio our
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preliminary or initial satisfaction by
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the controller is a requirement for
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proceeding with an application under 84
[216]
or 85 if the controller was satisfied
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that a prima facie case has not been
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made out for making an order under any
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of the sections referred to in rule 96
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with other five sections he shall notify
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the applicant accordingly and unless the
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applicant requests to be heard in the
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matter within one month from the date of
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such notification the controller shall
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refuse the application so the procedure
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for rejecting an application for
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compulsory license is that if the
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controller is of the opinion that it is
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not satisfied the requirements under 97
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then which is the primer facie case is
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not made out then he shall notify the
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applicant and if the applicant wants to
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be heard he'll hear the applicant and
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within one month from the date of such
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notification the controller shall refuse
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the application so this is a requirement
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for the controller if the controller
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feels
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a primary facie case is not made out
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then this is what this is the procedure
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that he will follow
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he should notify here the current
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applicant if the applicant wants to be
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heard and within one month of the
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notification he can pass an order of
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refusal 97 - if the applicant requests
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for a hearing within the time allowed
[303]
under sub rule 1 the controller shall
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after giving the applicant opportunity
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of being heard determine whether the
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application may be proceeded with or
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whether it shall be refused so he shall
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hear the applicant and then decide
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whether to proceed Auto refuse 98 we had
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seen that there is an opposition
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proceeding in Miss aged in section 87
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the patentee can oppose an application
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for a compulsory license on his patent
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now we also saw that the normal formers
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form 14 for any other opposition other
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than in opposition under the post grant
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provisions which is form 7 a notice of
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opposition under subsection 2 of 87
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shall be given in form 14 and shall be
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sent to the controller within 2 months
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from the date of publication of the
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application under subsection 1 of the
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said section the publication mentioned
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here is when the controller feels that
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the prima facie case has been made out
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he will direct the applicant to serve
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copies on the faculty and shall publish
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the application in the official journal
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so official journal is different from
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the Gazette official journal is the
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Journal of the Patent Office which is
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published every Friday an online version
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is available in the website patterned
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off his website so when an application
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is made for a compulsory license and the
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controller is satisfied there is a prima
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facie case then he would publish the
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application in the Official Journal now
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once this publication happens the notice
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of opposition shall go to
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controller within two months from the
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date of this publication sets a timeline
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given for the patentee to oppose to the
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notice of opposition referred to in
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subgroup one shall include terms and
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conditions of the license if any the
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opponent is prepared to grant to the
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applicant and shall be accompanied by
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evidence in support of the opposition
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now when the patentee opposes the patent
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he can also state the terms on which he
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is willing to grant a license in some
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cases a licensee or an applicant will
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approach for a compulsory license
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because he is not able to get a license
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from the pattern or the patentee is not
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willing to give it on reasonable terms
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as the applicant feels now if there is a
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difference between the two parties the
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patentee who wants to give a license and
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the applicant who wants to take the
[467]
license with regard to the royalty rates
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then by opposing the application for
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compulsory license the patentee can also
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indicate what are the terms that he
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wants so so that the controller can also
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consider if a license is to be granted
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what are the terms on which the patentee
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is willing to grant it so by sending the
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notice of opposition the opponent that
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is the patentee can also include what
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are the terms and conditions that he
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wants to get into the license 3 the
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opponent shall serve a copy of the
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notice of opposition enough and evidence
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to on the applicant and notify the
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controller when this service has been
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effected for no further statement of
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evidence shall be delivered by either
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party except by leave off or on
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requisition by the controller so once
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the opponent serves this statement and
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evidence there won't be any further
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evidence the controller shall fix a date
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and time for hearing of the case and
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shall give parties not less than 10 days
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notice of such hearing this is a normal
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practice when the pleadings are
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completed when the evidence is in place
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the controller shall notify and give 10
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days of notice for hearing the procedure
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specified in sub rules 2 to 5 of rule 62
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shall so far as may be applied to the
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procedure for hearing under this rule as
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they applied to the hearing in
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opposition proceeding and we have seen
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that the provisions for post grand
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opposition will normally apply for every
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other opposition now the manner of
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making a publication of revocation under
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Section 85 shall publish the order made
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by him under subsection 3 or sanctified
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revoking a patent so a revocation under
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it if I shall be published now rule 100
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101 deal with the procedure to be
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followed when under Section 88 in
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section 88 describes the powers of the
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controller in granting compulsory
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licenses under 84 when the content and
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88 is also relevant for the other types
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of compulsory licenses now the
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controller shall take into factor
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whether the person is an existing
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licensee or if he is an existing
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licensee whether to keep the existing
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licensee license intact or to cancel it
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there are various powers that the
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controller has now a hundred and 101
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details the procedure to be followed
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when there is an application under 88
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for 88 for pertains to the revision of
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terms often compulsory license that has
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already been granted we already
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mentioned that once a compulsory license
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is granted the licensee will have to
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work it for at least one year and after
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one year that is 12 months he can
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approach the controller on to revise the
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terms and conditions because on the
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ground that the terms have proved to be
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onerous and he is not able to work the
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invention except as at a loss so 88 for
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deals with the revision of terms of a
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compulsory license and the app there is
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an application under form 20 and there
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is a procedure so hundred and hundred
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and one cover the application and the
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procedure when you need to seek a
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revision or
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the terms of a compulsory license that
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has already been granted now 94 we saw
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that a compulsory license granted can be
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terminated there is an application for
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termination which is form 21 and the
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procedure that has to be followed is
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detailed in rule 102
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