Patents Act, 1978 (Act No. 57 of 1978)Chapter VIII : Licences53. Licences of right |
| (1) | At any time after the date of the sealing of a patent, the patentee may apply to the registrar for the patent to be endorsed with the words “licences of right” and where such an application is made the registrar shall, if satisfied that the patentee is not precluded by contract from granting licences under the patent, cause the patent to be endorsed accordingly. |
| (2) | Where a patent has been endorsed under this section— |
| (a) | any person shall at any time thereafter be entitled as of right to a licence under the patent upon such conditions as may, in default of agreement, be decided by the commissioner on the application of the patentee or the person requiring the licence; |
| (b) | the commissioner may, on the application of the holder of any licence granted under the patent before the endorsement, order such licence to be replaced by a licence to be granted by virtue of the endorsement on conditions to be decided by the commissioner; |
| (c) | no interdict shall, in proceedings for infringement of the patent (otherwise than by the importation of goods) be granted against the defendant if he undertakes to take a licence upon conditions to be decided by the commissioner, and the amount, if any, recoverable from the defendant by way of damages shall in such case not exceed double the amount which would have been payable by him as licensee if such a licence had been granted before the earliest infringement; |
| (d) | the renewal fee payable in respect of the patent after the date of the endorsement shall be one half of the renewal fee which would have been payable if the patent had not been so endorsed. |
| (3) | The licensee under a licence granted by virtue of the endorsement of a patent in terms of this section may (unless in the case of a licence whereof the conditions are decided by agreement, the licence otherwise expressly provides) call upon the patentee to institute proceedings in respect of any infringement of the patent, and if the patentee fails to do so within two months after being so called upon, the licensee may institute proceedings for the infringement in his own name as if he were patentee, joining the patentee as a defendant. |
| (4) | A patentee so joined as a defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings. |
| (5) | An application for the endorsement of a patent in terms of this section shall contain a statement, to be verified in such manner as may be prescribed, that the patentee is not precluded by contract from granting licences under the patent, and the registrar may require from the applicant such further evidence as he may think necessary. |
| (6) | An application under this section for the endorsement of a patent of addition shall be dealt with as an application for the endorsement of the patent for the main invention also, and an application made under this section for the endorsement of a patent in respect of which a patent of addition is in force, shall be dealt with as an application for the endorsement of the patent of addition also, and where a patent of addition is granted in respect of a patent already endorsed under this section, the patent of addition shall also be so endorsed. |
| (7) | Every endorsement of a patent in terms of this section shall be recorded in the register and shall be advertised in the journal and in such other manner as the registrar may direct, to bring the endorsement to the notice of interested persons. |