Patent Compulsory Licensing System

For years, injunctions have been a mainstay in US patent laws.  That notion will be questioned in the upcoming Supreme Court case of eBay v. MercExchange.  As it turns out, other countries require compulsory patent licenses much more freely than does the US.

Robin Le Goff of Laurent & Charras in France provides the following summary:


In accordance with the Paris Convention (see below), the French Patent Law (Code de la Propriété Intellectuelle) provides five reasons for compulsory licensing:

1- Non working of invention during four years from filing,
2- Cross-licensing to and from a third party who patents an improvement depending from the initial invention,
3- Public health,
4- Insufficient production to meet market requirements,
5- National defense needs.

The German Patent Law provides the same schemes as the French one: see Sections 13, 24 and 81 here.

As noted above, the Paris Convention allows for compulsory licenses:

(2) Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work.

(4) A compulsory license may not be applied for on the ground of failure to work or insufficient working before the expiration of a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last; it shall be refused if the patentee justifies his inaction by legitimate reasons. Such a compulsory license shall be non–exclusive and shall not be transferable, even in the form of the grant of a sub–license, except with that part of the enterprise or goodwill which exploits such license.