Patents Act, 1992
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Right to use inventions for service of State. |
77.—(1) A patent and a patent application shall have to all intents the like effect as against the State as it has against an individual; provided that any Minister of the Government may, by himself or by such of his officers, servants or agents as may be authorized in writing by him or by any other person acting on his behalf at any time after the making of an application for a patent, do for the service of the State any of the following acts in the State in relation to an invention which is the subject of the application or patent, without the consent of the applicant for or the proprietor of the patent, that is to say— | |
(a) where the invention is a product, make, use, import or stock the product or dispose of or sell or offer to dispose of or sell it to any person; | ||
(b) where the invention is a process, use it or do in relation to any product obtained directly by means of the process anything mentioned in paragraph (a); | ||
(c) supply or offer to supply to any person any of the means, relating to an essential element of that invention, for putting the invention into effect. | ||
(2) Any thing done by virtue of subsection (1) in relation to an invention which is the subject of an application or a patent, is subsequently in this section and in section 78 referred to as “use of the invention” and the doing of any such thing shall not amount to an infringement of the application or patent concerned. | ||
(3) Use of an invention under this section shall be subject to such terms as may, either before or after the use thereof, be agreed on, with the approval of the Minister for Finance, by any Minister of the Government and the applicant for or the proprietor of the patent relating to the invention, or, in default of agreement, as may be settled in the manner hereinafter provided, and the terms of any agreement or licence concluded between such applicant or proprietor and any person other than a Minister of the Government shall not operate to prevent or regulate the use of the invention for the service of the State. | ||
(4) Where an invention which is the subject of any patent or application for a patent has, before the date of filing, or, where priority is claimed, the priority date of the application, been duly recorded in a document by, or been tried by or on behalf of any Minister of the Government (such invention not having been communicated directly or indirectly by the applicant for or the proprietor of the relevant patent), any Minister of the Government or such of his officers, servants or agents as may be authorized in writing by him, may use the invention so recorded or tried for the service of the State free of any royalty or other payment to the applicant for or the proprietor of the patent, notwithstanding the existence of the application or patent, and, if in the opinion of such Minister the disclosure to the applicant or the proprietor, as the case may be, of the document recording the invention or the evidence of the trial thereof would be detrimental to the public interest, such disclosure may be made confidentially to counsel on behalf of such applicant or proprietor or to any independent expert mutually agreed upon. | ||
(5) Where any use of an invention is made by or with the authority of a Minister of the Government under this section, then, unless it appears to such Minister that it would be contrary to the public interest so to do, the Minister shall notify the applicant for or the proprietor of a patent (if any) relating to the invention as soon as practicable after the use is begun and furnish him with such information as to the extent of the use as he may from time to time reasonably require. | ||
(6) In the case of any dispute as to or in connection with the use of an invention under this section or the terms therefor, or as to the existence or scope of any record or trial referred to in subsection (4), the matter shall be referred to the Court for decision, and the Court shall have the power to refer the whole matter or any question or issue of fact arising thereon to be heard by an arbitrator upon such conditions as it may direct; the Court or arbitrator in settling the dispute shall be entitled to take into consideration any benefit or compensation which the applicant for or proprietor of a patent (if any) relating to the invention or any other person interested in such application or in such patent may have received directly or indirectly from the State in respect of such application or patent. | ||
(7) In any proceedings under this section the Minister of the Government who is a party to the proceedings may— | ||
(a) put in issue the validity of the relevant patent without applying for its revocation; | ||
(b) if the proprietor of a patent is a party to the proceedings, apply for revocation of the patent upon any ground upon which a patent may be revoked under section 58 . | ||
(8) The right to use an invention for the service of the State under the provisions of this section shall include a power to dispose of or sell, or offer to dispose of or sell, any products made in pursuance of such right which are no longer required for the service of the State. | ||
(9) Any person who acquires products disposed of or sold in the exercise of powers conferred by this section and any person claiming through him shall have power to deal with the products in the same manner as if they had been made pursuant to a patent held on behalf of the State. | ||
(10) In this section “service of the State” means a service financed out of moneys charged on or advanced out of the Central Fund or moneys provided by the Oireachtas or by a local authority for the purposes of the Local Government Act, 1941 . |