Section 13 introduces a measure that allows the exploitation of a patented invention, without the agreement of the owner of the patent, by the Government or by third persons authorized by the Government, in the public interest or to remedy an anti-competitive practice. The provisions may be merged with the provisions contained in Section 14 and re drafted accordingly if it is preferred that the Law should only provide for the grant of non voluntary licences including on the grounds referred to in Section 13(1)(i) and (ii).
Under the exception contained in subsection 1, the Government may, in the public interest, exploit a patented invention, or the Minister may designate a third person to do so, without the agreement of the owner of the patent. The said exploitation may be authorized if the public interest so requires (subparagraph (i) of subsection (1) or, should the laws of Antigua and Barbuda provide for such procedure, if the competent judicial or administrative body has determined that the manner of exploitation, by the owner of the patent or his licensee, is anti-competitive and the Minister is satisfied that the authorization would remedy such practice (subparagraph (ii)).
In view of the importance of decisions of this nature, subsection (1) requires the decision to be made by the Minister under whose supervision the Office of the Registrar is placed and it is required that, in addition to the owner of the patent, all other interested persons should be given an opportunity of being heard before the decision is taken.
Subsection 2 requires, in accordance with Article 31(h) of the TRIPS Agreement, that an adequate remuneration be paid to the right holder. The amount of an "adequate remuneration" will have to be determined in each case, taking into account, in particular, the economic value of the authorization. The economic value will often be calculated on the basis of the sum which would be payable under a freely negotiated licence in respect of the invention. However, the need to correct anti-competitive practices may result in a reduction of the amount.
According to subsection 3, an authorization may be obtained only if efforts have been made to obtain a contractual licence and have failed: a contractual licence is preferable for all concerned to that of a non-voluntary licence. The said requirement is waived in cases of a national emergency or other circumstances of extreme urgency. In such cases, the owner of the patent is, however, to be informed as soon as reasonably practicable. It may also be waived, in accordance with Article 31(b) and (k) of the TRIPS Agreement, in cases of public non-commercial use and anti-competitive practices where the competent judicial or administrative body has taken a decision to this effect.
To discharge his obligation to provide proof of having sought in vain to obtain an authorization, the requesting party may, for instance, submit a copy of the letter he sent to the owner of the patent by registered mail or in any other legally recognized manner according to the practices of the country and a copy of the reply he received, if any.
