Comment320 Sample Clauses

Comment320. The procedural requirements for national compulsory licensing regimes are few and generous. The TRIPS agreement requires negotiations for “a reasonable period of time” before a commercial, non-voluntary license is granted. However, the national legislator is free to define what constitutes a reasonable effort. It is also free to waive this requirement in order to solve a major public health crisis. A government can use any patent and authorise any use for a government purpose as long as the right holder is adequately compensated.321 The process of the granting and review of its terms can be entirely administrative. Considering the grounds for compulsory licensing it might even be preferable that it is partially so. An administrative agency might be better equipped to evaluate the overall usefulness of a compulsory license than a judge, educated and limited by the pleas of the parties involved in the case. As for the so often debated level of remuneration to the right holder for the involuntary use, it is only stated that it shall be decided upon in casu. For increased transparency, each jurisdiction could establish guidelines for the determination of the mandatory royalty. In the case of a product or a process often made out by several patents which can be owned by several different right holders, international law admits an order where the beneficiary of compulsory patent pays the remuneration to a fund. The different right holders can negotiate their share of the fund at their own expense. Furthermore, the national legislator is free to place the burden of proof for the adequacy of the remuneration on either the applicant or the right holder. 317 Xxxxxx (1977) p.45 and Xxxxxx/ Xxxxx, p. 26.‌ 318 Xxxxxx/ Xxxxx pp. 19-21. 319 Xxxxxx (1977) pp. 45-46 and Xxxxxx/ Xxxxx pp. 27-28. 320 This section draws heavily on the work of Mr. Xxxxx Xxxx. See his two articles “Check list for fast track compulsory licensing (v. 1.0)” xxxx://xxx.xxxxxx.xxx/ip/health/cl/fasttrack.html (last visited 2004-06-30) and “Compulsory Licensing: Models for state practice in developing countries, Access to medicine and compliance with the WTO TRIPS accord.” xxxx://xxx.xxxxxx.xxx/ip/health/cl/recommendedstatepractice.html (last visited 2004-06- 30). 321 TRIPS Article 44.2. offering the possibility to deny injunctions against governmental use without the consent of the right holder.
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