Section 23: Exploitation by Government or person thereby authorised

23. Exploitation by Government or person thereby authorised (1) Where the competent authority— (a) is satisfied that the public interest, including national security, nutrition, health or the development of other vital sectors of the national economy, so requires; or [Issue 1] P4 – 13 Patents, Industrial Designs and Trademarks Act (b) has, on the application of any party, determined that the manner of exploitation by the owner of the patent or his licensee is anticompetitive and that it is necessary to remedy such anticompetitive practice, it may, upon a request being made, authorise, even without the agreement of the owner of the patent, a Government agency or a third person to exploit the patented invention. (2) The exploitation of the patented invention shall be limited to the purpose for which it was authorised and shall be subject to the payment, to the owner, of an adequate compensation. (3) For the purposes of a decision under subsection (1), the competent authority shall take— (a) into account the economic value of the authorisation, as determined in the said decision, and where a decision has been taken under subsection (1) (b), the need to correct anti-competitive practices; and (b) his decision after hearing the owner of the patent and any interested person, whenever necessary. (4) A request for the authorisation under subsection (1) shall be accompanied by evidence that the owner of the patent has received, from the person seeking the authorisation, a request for a contractual licence, but that the latter has been unable to obtain such a licence on reasonable commercial terms and conditions and within a reasonable time. (5) Subsection (4) shall not apply in cases of— (a) national emergency or other circumstances of extreme urgency provided, however, that in such cases the owner of the patent shall be notified of the competent authority’s decision as soon as reasonably practicable; (b) public non-commercial use; and (c) anti-competitive practices determined as such by the competent authority in accordance with subsection (1) (b). (6) The exploitation of a patented invention in the field of semi-conductor technology by a person other than the owner, shall only be authorised— (a) where the competent authority has determined that the manner of exploitation of the patented invention, by the owner of the patent or his licensee, is anti-competitive and is satisfied that the issuance of the non-voluntary licence would remedy such practice; or (b) for public non-commercial use. (7) The authorisation shall not exclude— (a) the conclusion of licence contracts by the owner of the patent; P4 – 14 [Issue 1] Revised Laws of Mauritius (b) the continued exercise by the owner of the patent of his rights under section 21; or (c) the issuance of a non-voluntary licence under section 24. (8) Where a third person has been authorised by the competent authority, the authorisation may only be transferred with the enterprise or business of that person or with the part of the enterprise or business within which the patented invention is being exploited. (9) Upon a request of the owner of the patent, or the Government agency or of the third person authorised to exploit the patented invention, the competent authority may, after hearing the parties, whenever necessary, vary the terms of the decision authorising the exploitation of the patented invention to the extent that any change in circumstances justifies such variation. (10) Upon the request of the the part of the enterprise or business within which the patented invention is being exploited. (9) Upon a request of the owner of the patent, or the Government agency or of the third person authorised to exploit the patented invention, the competent authority may, after hearing the parties, whenever necessary, vary the terms of the decision authorising the exploitation of the patented invention to the extent that any change in circumstances justifies such variation. (10) Upon the request of the owner of the patent, the competent authority shall terminate the authorisation if he is satisfied, after hearing the parties, whenever necessary, that the circumstances which led to the decision have ceased to exist and are unlikely to recur or that the Government agency or third person authorised has failed to comply with the terms of the decision. (11) Notwithstanding subsection (10), the competent authority shall not terminate the authorisation where he is satisfied that the need for adequate protection of the legitimate interests of the Government agency or third person authorised, justifies the maintenance of the decision. (12) The decision of the competent authority under this section shall be subject to review by the Supreme Court.