IPC Section 40
Section 40 — Power to Grant Compulsory Licenses in Certain Cases
Overview
Section 40 deals with the grant of compulsory licenses to third parties in specific situations related to public interest and accessibility of patented inventions.
Key Points of Section 40
Applicability
This section applies to patents related to drugs and food products that are essential for public health and safety.
Grounds for Granting Compulsory License
The government or an interested party can request a compulsory license if:
The patented invention is not available to the public at a reasonably affordable price.
The patented invention is not being worked in the territory of India (i.e., not manufactured or used sufficiently).
Public interest, especially related to health and nutrition, requires the compulsory license.
Procedure
A request can be made to the Controller of Patents.
The Controller examines the facts and reasons.
If satisfied, the Controller can grant a license to use the patented invention without the patent holder’s consent.
Terms of the License
The compulsory license is granted subject to reasonable royalty paid to the patent holder.
The license is non-exclusive and non-assignable except with the business.
Purpose
To balance patent rights with public interest, especially ensuring availability of essential medicines and food products.
Prevents the abuse of patent rights when it harms public health or access.
Why is Section 40 Important?
It ensures affordable access to essential medicines and food.
Prevents monopolistic exploitation of patent rights.
Protects public health and nutrition by allowing others to produce or import patented products under license.
Summary Table
| Aspect | Details |
|---|---|
| Applies To | Patents on drugs and food products |
| Grounds for Compulsory License | Non-working, unaffordable prices, public interest |
| Authority | Controller of Patents |
| License Terms | Reasonable royalty, non-exclusive |
| Objective | Ensure access to essential patented inventions |
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