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Designs Bill 2003

Part 3 Compulsory licences and revocation of registration

   

90   Person may apply to court for compulsory licence

             (1)  A person may apply to a prescribed court, after the end of the prescribed period, for an order requiring the registered owner of a registered design to grant the person a licence to do any of the things mentioned in paragraphs 10(1)(a) to (e) in relation to the design.

             (2)  An application under subsection (1) may not be made unless a certificate of examination has been issued.

             (3)  After hearing the application, the court may make such an order if it is satisfied that:

                     (a)  products embodying the design have not been made in Australia, to the extent that is reasonable in the circumstances of the case; and

                     (b)  the registered owner of the design has given no satisfactory reason for failing to exercise the exclusive rights in the design; and

                     (c)  the applicant has tried for a reasonable period, but without success, to obtain from the registered owner of the design an authorisation to do, on reasonable terms and conditions, any of the things mentioned in paragraphs 10(1)(a) to (e) in relation to the design.

91   Terms of compulsory licence

             (1)  This section applies if a court makes an order granting a licence under section 90.

             (2)  The order must direct that the licence:

                     (a)  does not give the licensee any exclusive rights in the design; and

                     (b)  is to be assignable only in connection with an enterprise or goodwill in connection with which the licence is used;

and may direct that the licence is to be granted on any other terms specified in the order.

             (3)  The order operates, without prejudice to any other method of enforcement, as if it were embodied in a deed granting a licence and executed by the registered owner of the design and all other necessary parties.

             (4)  The applicant is to pay the registered owner of the design:

                     (a)  such amount as is agreed between the applicant and the registered owner of the design; or

                     (b)  if paragraph (a) does not apply—such amount as is determined by a prescribed court to be just and reasonable having regard to the economic value of the licence.

             (5)  The registered owner of the design or a prescribed court may revoke the licence if:

                     (a)  the registered owner of the design and the licensee are agreed, or the court on application made by either party finds, that the circumstances that justified the grant of the licence have ceased to exist and are unlikely to recur; and

                     (b)  the legitimate interests of the licensee are not likely to be adversely affected by the revocation.

92   Revocation of registration after grant of compulsory licence

             (1)  If a licence is granted under section 90, an interested person may apply to a prescribed court, after the end of the prescribed period, for an order revoking the registration of the design.

             (2)  After hearing the application, the court may make the order if it is satisfied that:

                     (a)  the reasonable requirements of the public with respect to the design have not been satisfied; and

                     (b)  the registered owner of the design has given no satisfactory reason for failing to exercise the exclusive rights in the design.