What is compulsory licensing?
How is compulsory licensing regulated in Peru?
What types of compulsory licence are available in Peru?
On what grounds can a compulsory licence be granted in Peru?
What are the procedures involved in obtaining a compulsory licence in Peru?
What documentation is required to obtain a compulsory licence in Peru?
Compulsory licences are authorisations granted by the state to enable any third party to use, commercialise and exploit the subject matter protected by a patent without the need to have the authorisation of the patent holder. They put the public interest before the exclusive rights of any private agent.
How is compulsory licensing regulated in Peru?
Compulsory licensing is regulated by:
- Resolution No. 002706-2019;
- Decision 486; and
- Legislative Decree 1075.
What types of compulsory licence are available in Peru?
Compulsory licences arise as exceptions allowed by the Agreement on Trade-Related Aspects of Intellectual Property Rights, which establishes four cases in which a compulsory license may be granted – namely:
- for national security, in a national emergency or for public interest;
- for a lack of exploitation of the patented subject matter;
- for anti-competitive practices carried out by the patent holder; or
- because the exploitation of a patented product necessarily depends on the use of the patent of another.
On what grounds can a compulsory licence be granted in Peru?
In Peru, seven conditions must be met in order for a compulsory licence to be granted:
- They must be non-exclusive and sub-licences may not be granted.
- They may be transferred only with the part of the company or its intangible assets that enables its industrial exploitation and must be registered. Otherwise, transfers will not be effective.
- They may be revoked if the circumstances that gave rise to them have disappeared and are not likely to reoccur.
- Their scope and duration will be limited according to the purposes for which they were granted.
- In the case of invention patents that protect semiconductor technology, compulsory licences will be authorised only for public use or to remedy a declared anti-competitive practice.
- They must provide for adequate remuneration.
- They must be oriented to supply mainly the domestic market.
What are the procedures involved in obtaining a compulsory licence in Peru?
The official fees must be paid and an application must be submitted.
According to the legal provisions, the maximum term to conclude the processing of an application is 180 working days from the filing date.
If, after notification of the decision, the applicant wishes to file an appeal for reconsideration, appeal or accession, the applicant has a maximum of 15 working days from the date on which the resolution was communicated to it.
What documentation is required to obtain a compulsory licence in Peru?
The following must be included within the application:
- identification data, domicile and/or powers of attorney. In the case of legal entities, the unique taxpayer number must be included;
- the registration number of the IP element whose licence is requested;
- copies of the documents that support the granting of the compulsory license; and
- the official fees.
For further information on this topic please contact Oscar Mago at OMC Abogados & Consultores by telephone (+511 502 6467) or email ([email protected]). The OMC Abogados & Consultores website can be accessed at omcabogados.com.pe.