this ground and the Tribunal is of the opinion that the time which has elapsed since
the sealing of the patent has by reason of the nature of the invention or for any other
reason been insufficient to enable the invention to be worked within Zimbabwe on a
commercial scale, the Tribunal may make an order adjourning the hearing of the
application for such period as will in its opinion be sufficient for that purpose;
(b)
if the working of the invention within Zimbabwe on a commercial
scale is being prevented or hindered by the importation of the patented article by—
(i)
the patentee or persons claiming under him; or
(ii)
persons directly or indirectly purchasing from the patentee; or
(iii)
persons against whom the patentee is not taking or has not taken
proceedings for infringement;
(c)
if the demand for the patented article in Zimbabwe is not being met to
an adequate extent and on reasonable terms;
(d)
if, by reason of the refusal of the patentee to grant a licence or licences
upon reasonable terms, the trade or industry of Zimbabwe or the trade of any person
or class of persons trading in Zimbabwe or the establishment of any new trade or
industry in Zimbabwe is being prejudiced, and it is in the public interest that a licence
or licences should be granted;
(e)
if any trade or industry in Zimbabwe or any person or class of persons
engaged therein is being prejudiced by unfair conditions attached by the patentee,
whether before or after the appointed day, to the purchase, hire, licence or use of the
patented article or to the using or working of the patented process;
(f)
if any condition, which under section forty-four is null and void as
being in restraint of trade and contrary to public policy, has been inserted in any
contract made in relation to the sale or lease of or any licence to use or work any
article or process protected by the patent:
Provided that, for the purpose of determining whether there has been
any abuse of the monopoly rights under a patent, due regard shall be had to the fact
that patents are granted not only to encourage invention but also to secure that
inventions shall so far as possible be worked on a commercial scale in Zimbabwe
without undue delay.
(6a) In the event of a practice determined after judicial or administrative process to be
anti-competitive, the requirements contained in subsection (1) that the interested
person shows that he has been unable to obtain a licence shall not apply.
[inserted by Act 9 of 2002, with effect from the 20th December, 2002.]
(7) The Tribunal may order the grant to the applicant of a licence on such terms as it
may think expedient, including a term precluding the licensee from importing into
Zimbabwe any goods the importation whereof, by persons other than the patentee or
persons claiming under him, would be an infringement of the patent.
(8) The terms of a licence ordered to be granted under subsection (7) shall be so
framed as—
(a)
to authorise the making, use or vend of the invention primarily to
satisfy the market in Zimbabwe, except in the case of a determination of anticompetitive practices, in which case no such restriction shall apply; and
(b)
to secure to the patentee the reasonable royalty compatible with the
successful working of the invention within Zimbabwe on a commercial scale and at a
reasonable profit; and
(c)
to be based on product-specific research and development costs,
taking into account the domestic market share of the total world market:
Provided that paragraph (b) shall not be construed as to exclude the need to correct
anti-competitive practices which may be taken into account in determining the
amount of remuneration in such cases.
[amended by Act 9 of 2002, with effect from the 20th December, 2002.]
(9) In addition to any other terms of a licence ordered to be granted under subsection
(7), the licence shall be revocable at the discretion of the Tribunal if—