ORDER OF THE GOVERNMENT OF THE KYRGYZ REPUBLIC

of December 24, 1998 No. 862

About approval of the Regulations on conditions and procedure for provision of the compulsory license on object of industrial property, traditional knowledge, selection achievements and their use

For the purpose of realization of regulations of the Patent law of the Kyrgyz Republic and in connection with the entry of the Kyrgyz Republic into the World Trade Organization the Government of the Kyrgyz Republic decides:

1. Approve the enclosed Regulations on conditions and procedure for provision of the compulsory license on object of industrial property, traditional knowledge, selection achievements and their use.

2. Determine that according to the Protocol on accession of the Kyrgyz Republic to the Marakeshsky agreement on organization of the World Trade Organization ratified by Jogorku Kenesh of the Kyrgyz Republic on November 17, 1998 this resolution becomes effective from the date of official date of the entry of the Kyrgyz Republic into the World Trade Organization.

Approved by the Order of the Government of the Kyrgyz Republic of December 24, 1998 No. 862

Regulations on conditions and procedure for provision of the compulsory license on object of industrial property, traditional knowledge, selection achievements and their use

1. This Provision is developed according to the laws of the Kyrgyz Republic "Patent law", "About protection of traditional knowledge", "About legal protection of selection achievements" and determines conditions and procedure for issue of the compulsory license on use of the invention, useful model (further - object of industrial property), traditional knowledge and selection achievement.

2. Use of object of industrial property, the traditional knowledge and selection achievement protected by the patent under responsibility of the applicant, the patent (further - the patent), without the permission of the owner of the patent, without the permission of the owner of the certificate is allowed by the certificate in the presence of one of the following conditions:

a) if object of industrial property, the traditional knowledge, selection achievement vital for agricultural industry of the country are not used or insufficiently used by the owner of the patent, the owner of the certificate or persons who transfers the rights to them (further - the owner), within three years from date of issue of the patent, the certificate that leads to the insufficient offer of the corresponding goods or services on commodity market and services of the Kyrgyz Republic;

b) in case of force majeure (natural disasters, catastrophic crashes, major accidents, epidemics) or for the benefit of homeland security;

c) in case of non-commercial use by the Kyrgyz Republic of such object;

d) in need of correction of practice which is acknowledged as court or antimonopoly authority as anti-competitive (monopolistic).

3. Any person wishing and ready to competently use object of industrial property, traditional knowledge, selection achievement has the right to take a legal action with the claim for provision to it the compulsory license on use of the specified object.

Consideration of the specified claim performs court according to the procedure, the established legislation of the Kyrgyz Republic on legal proceedings.

4. Person who submitted the action for declaration shall provide the data confirming the real need of the corresponding goods and services for the Kyrgyz Republic owing to non-use or insufficient use of object of industrial property, traditional knowledge, selection achievement by the owner and also data on the fact that he made attempts to sign the license agreement with the owner on the conditions corresponding to the established commercial practice during the reasonable period of time and these attempts by it were rejected.

The specified requirements are not applied in the cases provided by subitems "b" and "v" of Item 2 this provision. In the case provided by the subitem "b" of Item 2 this provision, the owner is notified on such use in the shortest possible time, and in the case provided by the subitem "v" of Item 2 this provision immediately, and amount and duration of use of the protected object of industrial property, traditional knowledge is limited to the purposes for which it is authorized, with payment to the owner of proportional remuneration.

If the owner does not prove that non-use or insufficient use of object of industrial property, traditional knowledge, selection achievement is caused by reasonable excuses, the court can provide the compulsory license on its use.

5. In case of decision about provision of the compulsory license the court shall consider following provisions:

a) the compulsory license shall be based on individual qualities of object of industrial property, traditional knowledge, selection achievement;

b) the amount and duration of use of the compulsory license are limited to the purpose for which she is presented;

c) the amount of payments shall be established not low prices of the similar license determined according to common practice;

d) the compulsory license on technology of semiconductors is provided only for non-commercial use by the Kyrgyz Republic or correction of practice which by a court decision or antimonopoly authority is determined as anti-competitive;

e) the compulsory license is the non-exclusive license and is not subject to assignment to other person. The right to use the specified object of industrial property can be transferred by person to whom the compulsory license is provided, to other person only together with the corresponding production on which this object is used;

e) the compulsory license shall be provided only for ensuring requirements of the market of the Kyrgyz Republic.

6. The owner of the patent who cannot work the invention, without violating at the same time the rights of the owner of other patent for the invention or to object of industrial property which refused the conclusion of the license agreement on the conditions corresponding to common practice has the right to take a legal action with the claim for provision to it the compulsory license on use of the invention or useful model in the territory of the Kyrgyz Republic provided that its invention represents important technical achievement of the essential economic importance in relation to the invention or object of industrial property, the patent for which belongs to other person.

By provision of the specified license by court limits of use of the invention or useful model, the patent for which belongs to other person, in the amount necessary for use of the invention patented by person requiring provision to it the compulsory license and also the size, terms and payment procedure, shall be determined. The amount of payments at the same time shall be established not low prices of the similar license determined according to common practice.

The compulsory license is always the non-exclusive license, it cannot be assigned to other person.

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