[Ip-health] UK Guide to applying for a compulsory licence for patents on seeds

[James Love]

This UK page might be a good model for countries that seek to make
compulsory licensing more accessible.   It sets out the procedures
for applying for a compulsory license in fairly easy to understand
terms.  It also notes that the compulsory license can include the
right to export (permitted under Article 31.k of the TRIPS).   Jamie

http://www.defra.gov.uk/planth/pvs/clguide01.htm

	Defra (Department for Environment, Food and Rural Affairs)

Plant Varieties & Seeds

Guide to applying for a compulsory licence

What is a compulsory licence?

A compulsory licence is a licence granted by the controller of plant
variety rights in cases when a licence has been unreasonably refused
or offered on unreasonable terms by the holder of plant breeders'
rights.

Who can apply for a compulsory licence?

Anyone who has applied for a licence and consider that the holder of
plant breeders' rights in the variety has:-

     * unreasonably refused to grant a licence, or
     * imposed or put forward unreasonable terms in granting, or
offering to grant, a licence

may apply for a compulsory licence.

A compulsory licence may be granted whether or not the holder of
plant breeders' rights has granted licences to the applicant or any
other person.

When can an application for a compulsory licence be made?

An application can be submitted at any time, but a compulsory licence
cannot come into force until 2 years after the granting of plant
breeders rights in the variety to which it relates.

How do I make an application?

A form for applying for a compulsory licence can be downloaded or
obtained from the Plant Variety Rights Office.

Please note all applications must be accompanied by the prescribed
fee which at present is 60 pounds. All forms must bear an original
signature and where an application is made by a company it must be
signed 'for and on behalf of ' the company, by a person with
authority to sign.

What conditions govern the grant of a compulsory licence?

The controller shall not grant a compulsory licence unless he is
satisfied :-

    1. that it is necessary to do so for the purpose of securing that
the variety to which the application relates :-
          1. is available to the public at reasonable prices,
          2. is widely distributed, or
          3. is maintained in quality,
    2. that the applicant is financially and otherwise in a position
to exploit in a competent and businesslike manner the rights to be
conferred on him, and
    3. that the applicant intends so to exploit those rights.

What is the effect of a compulsory licence?

The controller may grant to the licensee any such rights in respects
of the protected variety as might have been granted by the holder of
plant breeders' rights. These are as follows in respect of
propagating material :-

    1. production or reproduction (multiplication)
    2. conditioning for the purpose of propagation
    3. offering for sale
    4. selling or other marketing
    5. exporting
    6. importing
    7. stocking for any of the purposes mentioned in (a) to (f) above.

Licenses issued by the controller may be granted on such terms and
subject to such conditions as he feels appropriate.

Period of freedom from compulsory licensing

There is a period of 2 years from the date rights are granted, during
which any compulsory licence granted would not have effect. The
holder of plant breeders' rights will be entirely free to decide on
their own licensing policy and the terms and conditions (including
royalty payments) on which he will grant licenses during this 2 year
period.

Publication of applications for compulsory licences

Applications for compulsory licences are published in the plant
varieties and seeds gazette. Any person or organisation entitled to
participate in proceedings, or an application for a compulsory
licence, has 21 days from the date of publication in the gazette to
submit representations or requests to be heard.

Who is entitled to participate in proceedings on an application?

The following are entitled to participate in the proceedings on the
application for a compulsory licence by making representations and/or
being heard by the controller :-

    1. the applicant; the holder of rights;
    2. any person who is the holder of a licence to exercise plant
breeders' rights in the variety; and
    3. any person whose financial interests are likely to be affected
by the decision to grant or refuse a compulsory licence.

Organisations and persons entitled to make representations and be heard

Where the holder of plant breeders' rights to which an application
for a compulsory licence relates is, or is represented by, a
breeders' organisation then any other organisations or person with an
interest may make representations and be heard by the controller if :-

    1. the organisation or person has a substantial interest in the
application,
    2. the application involves issues which may affect other
applications for licences,
    3. where the application is made by an organisation, that the
organisation is reasonably representative of the class of persons
which it claims to represent.

If any person requests a hearing, the controller will appoint a time
and place at which all of the persons concerned will be heard, and
will give not less than 14 days notice of the hearing.

Fees for representations and hearings

The fees to be paid by organisations or persons making written
representations is at present 30 pounds payable on delivery of the
written representations. The fee to be paid for attending a hearing
is at present 60 pounts, payable before the hearing.

Appeals to the plant varieties and seeds tribunal

The holder of plant breeders' rights, the person who made the
application and any other person or organisation who took advantage
of the opportunity to make representations or to be heard by the
controller is entitled to appeal to the plant varieties and seeds
tribunal against the decision of the controller on the application.

If you are thinking of using the appeal mechanism you are strongly
advised to seek your own legal advice.

Suspension of controllers decisions pending an appeal

Where notice of an appeal has been given, the operation of the
decision will be suspended pending the final determination of the
appeal. A notice will be published in the gazette giving details of
appeals received and the suspension of decisions. Once an appeal has
been heard the decision of the tribunal will be communicated to the
persons concerned and published in the gazette.

Application for a revocation of, or for an extension, limitation or
other variation of a compulsory licence

The controller may at any time, on the application of any person,
extend, limit or in any other respect vary a compulsory licence, or
revoke it.

Applications may be made as set out in section 4 and the procedure to
be followed is the same as for applying for a compulsory licence.

Repeated applications

If a repeated application is made the controller may refuse to
entertain it if it appears to have been made without reasonable
cause. A repeated application means an application made in similar
circumstances on the same subject made within 12 months of the
previous application.

Failure to meet obligations imposed by a compulsory licence

The controller may suspend the exercise of any plant breeders' rights
if, on application by the holder of a compulsory licence he is
satisfied that the holder of rights is in breach of any obligation
imposed on him by the licence.

False information

It is a criminal offence for any person to, knowingly or recklessly
give false information to the controller in an application for a
compulsory licence (or for the revocation, extension, limitation or
other variation of a compulsory licence). The penalty for this would
be a fine not exceeding level 3.


		 	Page last modified: 12 May 2003