Document ID: chunk:federal_register_of_legislation:C2004A04827:body:0:p4
Version: federal_register_of_legislation:C2004A04827
Segment Type: other
Provision Reference: 
Character Range: 7384–10035

or the court on application made by either party finds, that the circumstances that justified the grant of the licence have ceased to exist and are unlikely to recur; and

        (b) the legitimate interests of the licensee are not likely to be adversely affected by the revocation.".

Transitional

12.(1) This section applies to an invention ("patented invention") that:

  (a) is the subject of a transitional standard patent; and

     (b) is not a pharmaceutical substance in respect of which the term of the patent could have been extended under Division 2 of Part 3 of Chapter 6 of the Principal Act (as in force immediately before this section commenced) if that Division had not been repealed.

(2) If, before 1 October 1994, a person had made a significant investment in respect of the exploitation of a patented invention, the person may apply to a prescribed court for an order requiring the patentee to grant to the applicant a licence to exploit the patented invention.

(3) After hearing an application under subsection (2), the court may, subject to this section, make the order if satisfied that:

  (a) the person made the investment in good faith; and

     (b) no action done by the person in preparation for the exploitation of the invention has infringed the patent.

  (4) If:

    (a) a person holds or held a licence ("old licence") to work a patented invention; and

    (b) the licence expires or expired at the end of the 16th year of the term of the patent;

a prescribed court may, on the application of the person and subject to this section, make an order requiring the patentee to grant to the person a new

licence to exploit the patented invention for so long as the patent remains in force.

(5) In making an order under subsection (4), the court must have regard to the terms and conditions (if any) subject to which the old licence was granted to the person.

(6) Before making an order under this section, the court must be satisfied that the applicant has tried for a reasonable period, but without success, to obtain from the patentee an authorisation to exploit the patented invention on reasonable terms and conditions.

  (7) An order must direct that the licence:

     (a) is not to give the licensee, or a person authorised by the licensee, the exclusive right to exploit the patented invention; and

     (b) is to be assignable only in connection with an enterprise or goodwill in connection with which the licence is used;

and may direct that the licence is to be granted on any other terms specified in the order.

(8) An order operates, without prejudice to any other method of enforcement, as if