(~'21/09/21) Patent Act Article 93: Award for the Grant of a Non-Exclusive License for the Public Interest (Public Interest Award)
This article is a past article as of '21/09/21. For the latest article, please see here.
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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 "particularly" necessary for the public interest.
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 also, the grant of a non-exclusive license can meet the requirements in all cases, so the Patent Act provides for the award system under Article 93.
･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 organs (for example, the Minister of Health, Labour and Welfare, etc.) are expected.
･Specific examples of when it is particularly necessary for the public interest (described in the Article-by-Article Commentary)
(1) An invention related to power generation where, if the invention is worked, the cost of power generation is significantly reduced and the burden on consumers is halved
(2) An invention related to the gas business where, if the invention is worked, gas leaks are eliminated and the number of gas poisoning victims is significantly reduced
・It is deemed that an agreement has been reached upon service of the transcript.
・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 when it is "particularly" necessary to work an invention for the public interest, such as a patent for a miracle drug for a highly lethal malignant infectious disease, it is necessary to use all available pharmaceutical factories to produce the miracle drug. This is because the patentee's justifiable reasons should not be considered even in such cases.
・Patent Act Article 93
(Award for the grant of a non-exclusive license for the public interest)
Article 93 (1) When the working of a patented invention is particularly necessary for the public interest, a person who intends to work the patented invention may request the patentee or the exclusive licensee to hold consultations on the grant of a non-exclusive license.
(2) If the consultations referred to in the preceding paragraph are not reached or cannot be held, the person who intends to work the patented invention may request an award from the Minister of Economy, Trade and Industry.
(3) The provisions of Article 84, Article 84-2, Article 85(1), and Article 86 through Article 91-2 apply mutatis mutandis to the award referred to in the preceding paragraph.
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