3. Articles 55 and 56 of the South African Patent Law establish a system for the grant of compulsory licences. Please answer the following questions in relation to this system.
(a) Article 56(5) specifies that, other than compulsory licences granted for failure to adequately work an invention, a compulsory licence may be an exclusive licence to practise the patented invention. Please explain how this provision complies with Article 31(d) of the TRIPS Agreement, which specifies that any compulsory licence granted by the Government shall be non exclusive in nature.
(b) Articles 56(4)(a) and (b) authorize the Commissioner to set the terms of a compulsory licence as he sees fit. No provisions of the South African patent law appear to constrain the discretion of the Commissioner to as to require specific conditions for every compulsory licence granted. Please explain whether the terms and conditions specified in Articles 31(a) to (l) are imposed with respect to every compulsory licences granted in South Africa. If not, please explain how South African law complies with the requirements of each of the paragraphs of Article 31 of the TRIPS Agreement.
(c) Article 56(2)(a) specifies that failure to work the patented invention on a commercial scale or to an adequate extent within the Republic of South Africa can be a grounds for issuance of a compulsory licence. Article 56(2)(b) specifies that if importation results in a hindrance of working of the patented invention in the Republic of South Africa, it also can serve as a basis for issuing a compulsory licence. Article 56(2)(e) specifies that a compulsory licence can be granted if importation is satisfying market demand but the price of patented products is excessive. Each of these provisions represents a discrimination in the enjoyment on patent rights based on the fact that the patented product is being imported rather than produced within South Africa. Please explain how these provisions comply with the requirements of Article 27.1 of the TRIPS Agreement, which prohibits discrimination in the enjoyment of patent rights based on whether products are produced locally or imported.
(d) Article 55 of the South African Patent Law permits the issuance of a compulsory licence to enable the practice of a dependent patented invention. The provision provides discretion to the Commissioner to set the terms of the licence. It is not clear from this provision whether dependent patent compulsory licences are available only in situations where the dependent patented invention represents an important technical advance of considerable economic significance in relation to the dominant patented invention, or whether the Commissioner is required to grant to the dominant patent holder a cross licence under the dependent patent. Please clarify if these conditions are imposed in all situations where a dependent patent compulsory licence is granted, and if not, how South African law complies with the requirements of Article 31(l) of the TRIPS Agreement.
