Section 84 — PATENTS ACT 1983

(a)

where there is national emergency or where the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy as determined by the Government, so requires; or

(b)

where a judicial or relevant authority has determined that the manner of exploitation by the owner of the patent or his licensee is anti-competitive, the Minister may decide that, even without the agreement of the owner of the patent, a Government agency or a third person designated by the

Minister may exploit a patented invention.

Patents 87

(2)

The owner of the patent shall be notified of the decision of the

Minister as soon as is reasonably practicable.

(3)

The exploitation of the patented invention shall be limited to the purpose for which it was authorized and shall be subject to the payment to the owner of the patent of an adequate remuneration for such exploitation, taking into account—

(a)

the economic value of the Minister’s authorization as determined in the decision; and

(b)

where a decision has been taken under paragraph (1)(b), the need to correct anti-competitive practices.

(4)

The Minister shall make his decision under subsection (3) after hearing the owner of the patent and any other interested person if they wished to be heard.

(5)

The exploitation of a patented invention in the field of semiconductor technology shall only be authorized either—

(a)

for public non-commercial use; or

(b)

where a judicial or relevant authority has determined that the manner of exploitation of the patented invention, by the owner of the patent or his licensee, is anti-competitive and if the Minister is satisfied that the authorization would remedy such anti-competitive practice.

(5A)

Where the exploitation of a patented invention involves an importation of a pharmaceutical product into Malaysia for the purposes of paragraph (1)(a)—

(a)

the Council for TRIPS shall be notified; and

(b)

no remuneration shall be payable to the owner of the patent in Malaysia under subsection (3) if adequate remuneration is paid to the owner of the patent in the exporting country.

(6)

The authorization shall not exclude—

88

(a)

the continued exercise by the owner of the patent of his rights under subsection 36(1); or

(b)

the issuance of compulsory licences under Part X.

(7)

Where a third person has been designated by the Minister, the authorization may only be transferred with the goodwill or business of that person or with that part of the goodwill or business in which the patented invention is being exploited.

(8)

The exploitation of the patented invention by the Government agency or the third person designated by the Minister shall be predominantly for the supply of the market in Malaysia.

(9)

Upon the request of—

(a)

the owner of the patent; or

(b)

the Government agency or the third person authorized to exploit the patented invention, the Minister may, after hearing the parties, if either or both wish to be heard, vary the terms of the decision authorizing the exploitation of the patented invention to the extent that changed circumstances justify such variation.

(10)

Upon the request of the owner of the patent, the Minister shall terminate the authorization if he is satisfied, after hearing the parties, if either or both wish to be heard, that the circumstances mentioned in subsection (1) which led to his decision have ceased to exist and are unlikely to recur or that the Government agency or the third person designated by him has failed to comply with the terms of the decision.

(11)

Notwithstanding subsection (10), the Minister shall not terminate the authorization if he is satisfied that the need for adequate protection of the legitimate interests of the Government agency or the third person designated by him justifies the maintenance of the decision.

Patents 89

(12)

The owner of a patent, a Government agency or the third person authorized to exploit a patented invention may appeal to the Court against the decision of the Minister under this section.

(13)

In this section “Government agency” means the Federal

Government or the Government of a State and includes a Ministry or

Department of that Government.

Refusal to grant patent by the Registrar