notify the application to any person entered on the Register as being entitled to an
interest in the patent and, if satisfied, after giving any such person an opportunity to
be heard, that the patentee is not precluded by contract from granting licences under
the patent, cause to be entered in the Register notice that licences in respect thereof
may be issued as of right.
(3) Where an entry in the Register is made in terms of subsection (2) in respect of a
patent—
(a)
any person shall, at any time thereafter, be entitled as of right to a
licence under the patent upon such terms as may, in default of agreement and subject
to subsection (4), be settled by the Registrar on the application of the patentee or the
person requiring the licence;
[amended by Act 9 of 2002, with effect from the 20th December, 2002.]
(b)
the Registrar may, on the application of the holder of any licence
granted under the patent before the entry in the Register, order the licence to be
exchanged for a licence to be granted by virtue of the entry upon terms to be settled in
terms of paragraph (a);
(c)
if in proceedings for infringement of the patent, otherwise than by the
importation of goods, the defendant undertakes to take a licence upon terms to be
settled by the Registrar in terms of paragraph (a), no interdict shall be granted against
him, and the amount, if any, recoverable against him by way of damages shall 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 fees payable in respect of the patent after the date of the
entry in the Register shall be one-half of the renewal fees which would be payable if
the entry were not made.
(4) In settling the terms of the licence for the purposes of paragraph (a) or (b) of
subsection (3), the Registrar shall—
(a)
take cognizance of section thirty-two with respect to a patent falling
under that section; and
(b)
provide, inter alia, for the following matters—
(i)
the period of the licence;
(ii)
the terms of renewal, if any;
(iii)
the amount of and method for payment of royalties;
(iv)
arrangements for cancellation of the licence upon application made to
him by the patentee after failure by the licensee to pay royalties or to observe any
other conditions included in the licence by the Registrar, who is hereby authorized to
include such conditions, so, however, that no such licence may be cancelled unless
the licensee, after reasonable notice given to him by the patentee, has failed to
observe such conditions.
(5) The licensee under any licence granted by virtue of an entry in the Register made
in terms of this section shall, unless, in the case of a licence the terms of which are
settled by agreement, the licence otherwise expressly provides, be entitled to call
upon the patentee to take proceedings to prevent any infringement of the patent, and
if the patentee refuses or neglects 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, making the patentee a defendant:
Provided that a patentee so added as defendant shall not be liable for any costs unless
he enters an appearance and takes part in the proceedings.
(6) An application for an entry in the Register made 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.
(7) An application for an entry in the Register made in terms of this section—
(a)
which relates to a patent of addition, shall be treated as an application