Abstract
Though the principal aim of the Paris Union since its founding has been to enlarge the field of activity of patentees, who are nationals or residents of its member countries, it has always been recognized that complete liberty for patentees in chosing where and under what conditions to exploit their inventions was not in the best interest of most countries. From the evolution of the Convention it can be seen, that the ideas on what type of restrictions ought to be allowed and their degree of severity have shifted both among countries and over time. In that context it can also be seen that divergences between countries arguing for less restrictions, and those who want to retain if not amplify existing restrictions, generally divided members in groups of more and less economically developed countries. Though this pattern was discernable at almost every revision conference, the conflict of interests between industrialized and developing countries became particularly evident at the 1958 Lisbon conference.
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References
See, for instance E. T. Penrose, The Economics of the International Patent System (Baltimore: Johns Hopkins, 1951), p. 210.
See, for instance, S. P. Ladas, Propiedad Industrial y Desarrollo Económico, (Bogota: Brigard y Hurrutia), p. 6.
Since the possibilities and limitations of the present conventional rules concerning sanctions against non-working (and other abuses) have been analyzed previously, what follows below will be limited to stating the principles involved.
Though this idea was expressed some thirty years ago already (cf. Supra, p. 147) it is often being held today that for the case where the (foreign) patentee has offered licenses there are no grounds for further actions against him, implying thereby that the “sanctions” provided for in the Convention should only be employed to counter abuses over which the patentee can be held to have effective control.
Cf. Supra, pp. 39-41.
Cf. Supra, pp. 91-92.
K. Lachmann, “The Role of Industrial Property in the Dissemination of Technical Information in the World Context—A United Nations View”, IDEA, 9: 183, Conf. No. 1965.
Ibid.
Though Lachmann mentions “compulsory licensing and working provisions” which might include a provision for revocation, the fact that the author (p. 183) refers to the possible “safeguards” suggested by the Report as having since been included in the Model Law—which contains no provision for revocation—suggests that he merely considers provisions for compulsory licenses.
Cf. Supra, p. 148
To the extent that outside sources would be able to supply the required additional technology, the effectiveness of compulsory licensing would increase. The importance of such outside sources is recognized in various United Nations resolutions, where the creation of such supplies of technical knowledge is called for. Other considerations, however, would seem to limit the possible independence of the licensee from the patentee. Not only is much of the knowhow required for the effective working of an invention based on the personal experience of the patentee (-inventor), but the rapid technological evolution often requires a continuous flow of information from the licensor to the licensee.
Supra, p. 222.
Compulsory licenses may be granted even before this three-year waiting period and even for importation … These provisions are compatible with the existing British Legislation.” G. H. C. Bodenhausen, “A Model Patent Law for Developing Countries,” Creative Ferment in World Patent Systems, Conference of the National Association of Manufacturers, June, 1965 (New York: N.A.M., 1965) p. 27. Though the provision in question may appear advantageous, it means in contrast to the free importation that could take place after revocation, a submission to a monopoly possibly resulting in higher prices; in addition, a compulsory license to import carries with it an obligation to pay the patentee “adequate royalties.” Model Law …, section forty.
The typical position in this respect is illustrated by a reply of the BIRPI Director to a question posed by a participant in the Asian Seminar on Industrial Property (sponsored by BIRPI). On a question whether the provision of the Convention concerning compulsory licenses and forfeiture could not be made more flexible and liberal, the BIRPI Director said that “such an amendment to the Paris Convention would certainly fail to obtain unanimity” adding that in his personal opinion “any national law overstepping the limits established in the Paris Convention in this respect would so much weaken the patent system that it would have an adverse effect on the industrialization of any developing country.” Asian Seminar on Industrial Property, Documents, pp. 120-21 [Papers prepared by BIRPI, for/and report of proceedings of, Asian Seminar on Industrial Property, Colombo, Ceylon, February 7-10, 1966.]
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© 1971 Martinus Nijhoff, The Hague, Netherlands
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Anderfelt, U. (1971). The Scope for Remedies within the existing System. In: International Patent-Legislation and Developing Countries. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9218-7_8
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