Hong Kong Ordinances

PATENTS ORDINANCE - SECT 72J

References of disputes as to import compulsory licences

(1) If the Director and the proprietor of the patent concerned fail to agree
on the amount of remuneration payable under section 72E(2), either party may,
subject to subsection (5), apply to the court for an order to determine the
amount of remuneration payable under that section.

(2) A person who is not a party to any agreement reached on the amount of
remuneration under section 72E(2)(a) but is entitled to claim remuneration
payable under section 72E(2) may, subject to subsection (5), apply to the
court for an order for payment of remuneration under that section.

(3) In determining the appropriate amount of remuneration payable to the
proprietor of the patent concerned, the court shall take into account all
factors relevant to the circumstances, including—

   (a)  the economic value to Hong Kong of the use of the patented 
        pharmaceutical product imported under the relevant import compulsory
        licence; and

   (b)  humanitarian or non-commercial factors relevant to the grant of the
        licence.

(4) The total amount of remuneration determined by the court under subsection
(3) to be payable in respect of the patent or all the patents

(if there is more than one patent in relation to the patented 
pharmaceutical product) may exceed the maximum amount of remuneration that may
be agreed under section 72E(2)(a).

(5) No application may be made under subsection (1) or (2) after the expiry of
the period of 28 days from the date of the advertisement of the notice under
section 72F(2), unless the court determines otherwise.

(6) Any person aggrieved by—

   (a)  the grant of an import compulsory licence;

   (b)  any term or condition of an import compulsory licence imposed under
        section 72C;

   (c)  the apportionment of the amount of remuneration under section  72E
        (5); or

   (d)  the termination of an import compulsory licence under section  72G
        (1), may, within 28 days after the date of the advertisement of the
        notice under section 72F(1)(b) or (2)(a)(i) or the date of the
        termination of the licence (as the case may be) or such further period
        as may be allowed by the court, apply to the court for a review of the
        grant of the licence, the terms or conditions of the licence, the
        apportionment of the amount of remuneration or the termination of the
        licence (as the case may be).

(7) In a review the court may—

   (a)  confirm, vary or cancel the import compulsory licence;

   (b)  confirm, vary or cancel a term or condition of the import compulsory
        licence imposed under section 72C;

   (c)  confirm or vary the apportionment of the amount of remuneration under
        section 72E(5);

   (d)  confirm or reverse the termination of the import compulsory licence
        under section 72G(1); or

   (e)  make any other order as the court thinks fit in the circumstances.

(8) The proprietor of the patent concerned may apply to the court for an order
to terminate an import compulsory licence on the ground that any term or
condition of the licence imposed under section 72C has been contravened.

(9) The court may, on an application under subsection (8)—

   (a)  make an order to terminate the import compulsory licence if the court
        is satisfied that any term or condition of the licence imposed under
        section 72C has been contravened; and

   (b)  make any other order as the court thinks fit in the circumstances.
        (Part IXA added 21 of 2007 s. 5)