The draft Law on Patents and Utility Models provides for a system of granting compulsory licences subject to certain conditions which are in line with those enumerated under Article 31 of the TRIPS Agreement. The relevant provisions of the draft Law are Articles 24, 25, 26, 27 and 36. These are as follows:
Article 24
The Minister of Commerce and Industry may issue a non-exclusive compulsory licence for the exploitation of a patent in the following cases:
a) National emergency or circumstances of extreme urgency or for public non-commercial use provided that the owner of the patent is notified as soon as possible after the licence is granted.
b) Where the owner of the patent has not made sufficient use of the patent to the extent that he has failed to satisfy the needs of the domestic market, at reasonable prices taking into account those prevailing internationally, for 3 years from the date of the grant of the patent or 4 years from the date of the filing of the patent application, whichever is longer.
In such a situation, the Minister shall have the right to issue a compulsory licence to any person to whom the patent owner has refused to grant a licence or to whom the owner has imposed unfair commercial terms in order to grant him such a licence.
c) Where a patented invention (first patent) involves an important technical advance of considerable economic significance in relation to another patented invention (second patent), and where the first patent can not be exploited without exploiting the second patent, the owner of the first patent may be granted a compulsory licence to exploit the second patent. This is provided that the owner of the second patent has refused to allow such exploitation on reasonable terms. The exploitation of the second patent authorized in this case may not be assigned without the assignment of the first patent.
The owner of the second patent may also be granted a compulsory licence to exploit, at reasonable terms, the first patent in respect to which the other compulsory licence was granted.
d) Where the owner of the patent exercises his rights for anti-competitive ends.
Article 25
The following provisions shall apply to compulsory licences:
a) Applications for compulsory licences shall-upon the payment of the prescribed fee-be considered each upon its own merits. The applicant shall pay the prescribed fee in respect of the application
b) The licence shall be exploited predominantly for the supply of the domestic market.
c) The applicant must be capable of effectively exploiting the invention through an enterprise existing in the State of Bahrain.
d) The licence shall only be granted if the applicant has made reasonable efforts to obtain a licence from the patent owner on reasonable commercial terms and conditions, and that such efforts have not been successful within a reasonable period of time.
e) The applicant shall agree to limit the exploitation of the invention to the purpose, scope, conditions and period for which the licence is to be granted.
f) Where the proposed exploitation relates to semi-conductor technology, authorisation shall only be granted for public non-commercial use or to remedy practices determined to be anti-competitive.
g) The proposed user shall not assign the licence except with the enterprise or the part thereof relating to the exploitation of the invention and after the approval of the Minister of Commerce and Industry.
h) The patent owner shall be entitled to adequate remuneration taking into account the monetary value of the licence. The need to remedy anti-competitive practices, if applicable, may be taken into account in determining the remuneration.
i) The conditions provided for in items (b) and (d) of this Article shall not apply to situations where a licence is granted to remedy anti-competitive practices.
j) The Minister of Commerce and Industry shall ex officio or at the request of any interested party have the authority to amend the conditions of a compulsory licence in case of change in circumstances.
Article 26
Except in cases of national emergency and other circumstances of extreme urgency as referred to under Article 24(a), the competent Directorate at the Ministry of Commerce and Industry shall provide the patent owner with a copy of the licence application. The patent owner shall be provided a reasonable opportunity to respond in writing to the application. The processing of the application shall be in accordance with the procedure specified in the Implementing Regulation.
The Minister of Commerce and Industry shall issue a decision accepting or rejecting the application and may grant an acceptance subject to any conditions he deems appropriate. In all cases, the Minister shall notify the owner of the patent and the applicant of his decision within 30 days of the issuance of such a decision and the competent Directorate shall enter the decision in the register of patents. The decision shall also be published in the manner specified in the Implementing Regulation.
Article 27
The Minister of Commerce and Industry shall ex officio or at the request of the patent owner have the authority to terminate the licence before the end of its term in the following cases:
a) The circumstances, which led to the granting of the licence, have ceased to exist and are unlikely to recur. In such case, the legitimate interests of the licensee shall be adequately protected in accordance with the terms and procedures specified in the Implementing Regulation.
b) The licensee has not exploited the licence for two years from the date of its issuance.
c) The licensee has not complied with any of the conditions of the licence or has failed to fulfil his obligations under this Law and the related Implementing Regulation.
The decision of the Minister of Commerce and Industry in respect of the application for a compulsory licence may be challenged based on Article (36) of the draft Law which provides:
"Subject to the provisions for challenges provided for under Articles (18) and (19) and without prejudice to the provisions of Article (15) of this Law, any interested party may submit a petition to the Minister of Commerce and Industry in respect of any final decision issued in accordance with this Law within 30 days of its notification to that person. A decision in respect of the petition shall be issued within 30 days of its submission and the interested party shall be notified of the decision in writing within 30 days of its date of issuance. If the interested party is not notified of a decision within 60 days of the date of submission of his petition, such petition shall be deemed rejected.
Where a petition has been rejected or deemed rejected, the interested party may appeal such rejection before the High Civil Court within 60 days of its notification or lapse of the period beyond which the petition is deemed rejected as the case may be. An appeal may not be brought before the court until a petition has been filed and a decision has been issued or the period for a decision has lapsed."
