Journal of the Society of Arts : Volume XLIX, No. 2527 [‎700v] (26/36)

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JOURNAL OF THE SOCIETY OF ARTS.
[April 26, 1901.
an interest in the patent as exclusive licensee
or otherwise. In addition, the Attorney-
General in England or Ireland, or the Lord
Advocate in Scotland, or any person author
ised by them respectively, shall have the right
of appearing.”
The leading article of The Times of the 18th
March last observes on this proposal to transfer
the granting of compulsory licenses from the
Board of Trade to the High Court:—“ Is the
procedure there all that parties interested could
desire ? For a wealthy patentee or a wealthy
infringer it is ; for anybody else it is not.”
As the law at present stands an interested
person has to prove to the Board of Trade (1)
“ that by reason of the default of a patentee to
grant licences on reasonable terms, [a) the
patent is not being worked in the United
Kingdom, or (V) the reasonable requirements
of the public with respect to the invention can
not be supplied, or (c) any person is prevented
from working or using to the best advantage an
invention of which he is possessed.” The
Board of Trade may then order the patentee
to grant a license.
It will be noticed that the alternatives a and
b, which have to be proved by the interested
persons, are really incapable of being proved,
and even the third reason is extremely difficult
to establish, and in case the patentee lives
abroad the Board of Trade cannot grant a
license at all.
Altogether the Section as it stands and also
the recommendation of the Committee are
drawn to protect the interest of the inventor
and of the patentee respectively, which, as
explained above, appears to be the wrong
principle to follow.
If, however, the patent legislation is to carry
out the original object for which it was estab
lished, viz., to facilitate the introduction of new
maufactures, the procedure for obtaining
compulsory licences should be made simple and
expeditious.
It should be sufficient for the applicant for
a compulsory license to show to the satis
faction of the Comptroller :— (a) That he
is prepared to carry out the invention
on a commercial scale ; {b) that the
patentee has refused him a license on
reasonable terms, or has taken no notice of his
request. On receiving such an application the
Comptroller would send an official enquiry to
patentee at his registered address, asking
for an explanation within a reasonable time,
say a fortnight, if the registered address be in
the United Kingdom.
If the patentee does not answer within the
prescribed time, or still persists in refusing a
license on reasonable terms to the particular
applicant, the Comptroller would be empowered
to grant the license asked for, on such con
ditions as he may deem just, sending a copy
of the license to the patentee.
As all licenses have to be filed at the Patent-
office, the Comptroller would in most cases be
able to ascertain for his guidance in settling the
compulsory licenses on what terms licenses ta
use the patent in question have been granted ta
other parties by the patentee, and in other
cases a royalty of 5 per cent, on the selling
price, or of 10 per cent, on the saving effected
by the adoption of the invention might be con
sidered to be fair and reasonable.
All royalties under compulsory licenses should
be paid into the Patent-office in the same way
as the fees are now paid, and the Patent-office
would hand them over to the patentee, less a sum
equal to 10 per cent, of the gross receipts to
cover expenses, if applied for within 10 years
of the date of payment to the Patent-office.
After that time unclaimed royalties would!
become the property of the Patent-office.
The essence of this suggestion is that the
applicant must prove his ability and his willing
ness to work or make the invention on a com
mercial scale, and this should entitle him to a
license on the most favoured nation clause,
whether the patentee consents or not.
It is not to be anticipated that many com
pulsory licenses would have to be granted
under such provisions, as inventors would
soon realise that it was more to their interest
to grant licenses on reasonable terms when
asked for by bond-fide manufacturers, than b>
refuse them.
A further rule should be established that any
licensee who has been using a patented inven
tion on a commercial scale, for more than one
year, should have the right to bring a suit
for infringement, as long as he himself con
tinues to work his license.
If the patentee does not carry out the inven
tion himself on a commercial scale, he should
not be entitled to prosecute for infringement,
unless the invention has not yet been worked
by any of his licensees, or unless one of his
licensees, who is carrying on the manufacture
on a commercial scale, is made a party to the
suit. In no case should an action for infringe
ment be allowed to proceed, where the defen
dant can prove that the plaintiff knew of the
infringement for six months before he com
menced the action.