Commission Regulation (EC) No 874/2009Show full title

Article 37 Applications for a compulsory licence

1. The application for a compulsory licence pursuant to Article 29(1), (2) and (5) of the basic Regulation shall contain:

(a) the designation of the applicant and the opposing holder of the variety concerned as parties to proceedings;

(b) the variety denomination and the plant species of the variety or varieties concerned;

(c) a proposal for the type of acts to be covered by the compulsory licence;

(d) a statement setting out the public interest concerned, including details of facts, items of evidence and arguments presented in support of the public interest claimed;

(e) in the case of an application referred to in Article 29(2) of the basic Regulation, a proposal for the category of persons to which the compulsory licence shall be granted, including, as the case may be, the specific requirements related to that category of persons;

(f) a proposal for an equitable remuneration and the basis for calculating the remuneration.

2. The application for a compulsory licence referred to in Article 29(5a) of the basic Regulation shall contain:

(a) the designation of the applicant holding a patent right and the opposing holder of the variety concerned as parties to proceedings;

(b) the variety denomination and the plant species of the variety or varieties concerned;

(c) a certified copy of the patent certificate showing the number and claims of the patent for a biotechnological invention and the granting authority of the patent;

(d) a proposal for the type of acts to be covered by the compulsory licence;

(e) a proposal for an equitable remuneration and the basis for calculating the remuneration;

(f) a statement setting out why the biotechnological invention constitutes significant technical progress of considerable economic interest compared with the protected variety, including details of facts, items of evidence and arguments in support of the claim;

(g) a proposal for the territorial scope of the licence, which may not exceed the territorial scope of the patent referred to in point (c).

3. The application for a cross-licence referred to in the second subparagraph of Article 29(5a) of the basic Regulation shall contain:

(a) the designation of the applicant holding a patent right and the opposing holder of the variety concerned as parties to proceedings;

(b) the variety denomination and the plant species of the variety or varieties concerned;

(c) a certified copy of the patent certificate showing the number and claims of the patent for a biotechnological invention and the granting authority of the patent;

(d) an official document showing that a compulsory licence for a patented biotechnological invention has been granted to the holder of the plant variety right;

(e) a proposal for the type of acts to be covered by the cross-licence;

(f) a proposal for an equitable remuneration and the basis for calculating the remuneration;

(g) a proposal for the territorial scope of the cross-licence, which may not exceed the territorial scope of the patent referred to in point (c).

4. The application for a compulsory licence shall be accompanied by documents evidencing that the applicant has applied unsuccessfully to obtain a contractual licence from the holder of the plant variety right. Should the Commission or a Member State be the applicant for a compulsory licence pursuant to Article 29(2) of the basic Regulation, the Office may waive this condition in the case of force majeure.

5. A request for a contractual licence shall be considered unsuccessful within the meaning of paragraph 4 if:

(a) the opposing holder has not given a final reply to the person seeking such right within a reasonable period; or

(b) the opposing holder has refused to grant a contractual licence to the person seeking it; or

(c) the opposing holder has offered a licence to the person seeking it, on obviously unreasonable fundamental terms including those relating to the royalty to be paid, or on terms which, seen as a whole, are obviously unreasonable.