Patent Act Article 93: Award for the Grant of a Non-Exclusive License for the Public Interest (Public Interest Award) ☆3

This article is being updated. Links to past articles are provided at the bottom of the page.

1. Purpose of the System

Patent Act Article 93 is a system that forcibly grants a non-exclusive license through an award by the Minister of Economy, Trade and Industry when the working of a patented invention is for the public interest and is particularly necessary.

Since a patent right is an exclusive right, it is conceivable that the existence of a patent right could harm the public interest and cause significant damage to the public. In such cases, some measures are necessary, but restrictions on private rights should be kept to the minimum necessary even for the purpose of protecting the public interest, and furthermore, the setting of a non-exclusive license can meet the requirements in all cases, so the Patent Act provides for the award system under Article 93.

2. Reason for the Minister of Economy, Trade and Industry making the award

This is because a judgment must be made as to whether it is particularly necessary for the public interest, and requests from other administrative agencies (for example, the Minister of Health, Labour and Welfare, etc.) are expected.

As of the current status (September 22, 2021), there is no record of an award having been made, but it is considered important to determine what criteria will be used to judge whether it falls under the category of when it is particularly necessary for the public interest.

3. Relationship with other awards

In the case of an award for non-working (Article 83), if there is a justifiable reason for the non-working, an award for the grant of a non-exclusive license will not be made. However, this provision is not applied mutatis mutandis in this article. This is because, for example, in the case of a patent for a miracle drug for a highly lethal malignant infectious disease, if it is 'particularly' necessary to work it for the public interest, it is necessary to use all available pharmaceutical factories to produce the miracle drug (otherwise, there is a possibility that the entire population could be wiped out). This example is a case of a national emergency due to a malignant infectious disease, and the reason is that in such cases, the patentee's justifiable reasons should not be considered.

4. Specific examples

The specific examples of when it is particularly necessary for the public interest described in the section-by-section commentary are the following two cases: ① An invention related to power generation where, if the invention is worked, the cost of power generation will be significantly reduced and the burden on consumers will be halved. ② An invention related to the gas business where, if the invention is worked, gas leaks will be eliminated and gas poisoning victims will be significantly reduced.

5. Others

・It is deemed that an agreement has been reached upon service of the transcript by fiction.

・As of September 22, 2021, there are no examples of an award being made under the provisions of Article 93 of the Patent Act.

Note that, according to an article by the Asahi Shimbun, it seems that a 'request' for an award under the provisions of Article 93 of the Patent Act was made only once in the past (source of information) (within the scope confirmed here, no fact that a request for an award under the provisions of Article 93 of the Patent Act was made could be confirmed).

In the materials of the Patent System Subcommittee of the Intellectual Property Policy Committee of the Industrial Structure Council held on March 3, 2004, there was the following statement.

5.1. I had an explanatory picture drawn!

・I asked Ossan Patent Engineer (@ossan_tokkyo) to draw an explanatory picture regarding the award!

5.2. Regarding the first award request of 2021

The article regarding the 2021 Award Request No. 1 has been moved here.

● Article History
・(~'21/12/27) Patent Act Article 93: Award for the Grant of a Non-exclusive License for Public Interest (Public Interest Award)
・(~'21/09/21) Patent Act Article 93: Award for the Grant of a Non-exclusive License for Public Interest (Public Interest Award)
・(~'21/09/30) Patent Act Article 93: Award for the Grant of a Non-exclusive License for Public Interest (Public Interest Award)

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