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Patentee & License holder chooses to submit the form by providing the option of patented invention ‘not worked”, then Patentee & License holder must state the reasons for not working and steps being taken for ‘working of the invention’.
- The non-working of a patented invention on a commercial scale in India makes the patent vulnerable to compulsory licensing provisions under the Act, especially to the inventions which are recently granted. Applying & getting compulsory licenses are still at its nascent stage in India; however we also need to consider the growth & development of various aspects of technology as well as Intellectual property scenario. Practically speaking for compulsory licensing, it requires expiration of three years from date of grant, but non-working of invention will give an added advantage to the person applying for compulsory licensing. Any interested party who has been unsuccessful in procuring a voluntary license from the patentee can file an application with the Controller requesting for a compulsory license after expiry of three years from grant of the patent. Such person needs to establish the occurrence of any of the three conditions mentioned in Section 84 of the Act. One such condition is that the patent should have ‘not worked in the territory of India’. If the Controller is satisfied, he may grant the applicant a non-exclusive compulsory license for the balance term of the patent, unless a shorter term is consistent with public interest. The patent can subsequently be revoked after the expiration of two years from the grant of the compulsory license on application by any third party or the Government if it is established that the compulsorily licensed patent has not satisfied the purpose for which it was granted.
- It is a well established fact that a
patent is granted in order to encourage innovation and to ultimately serve the
public interest, however, Controller cannot suo motu revoke the patent. Neither is
‘non-working’ a ground for revocation of a patent by a person interested under
Section 64 of the Act. Therefore, non-working would not directly lead to
revocation of patent.
"It is advised to Patenees & License holders to file form 27 duly filed for working of invention & in case, invention has not been worked upon, it is high time to look upon"