Patents Act 1949

47 Rights of third parties in respect of Crown use. U.K.

(1) In relation to any use of a patented invention, or an invention in respect of which an application for a patent is pending, made for the services of the Crown—

(a) by a Government department or a person authorised by a Government department under the last foregoing section; or

(b) by the patentee or applicant for the patent to the order of a Government department,

the provisions of any licence, assignment or agreement made, whether before or after the commencement of this Act, between the patentee or applicant for the patent, or any person who derives title from him or from whom he derives title, and any person other than a Government department shall be of no effect so far as those provisions restrict or regulate the use of the invention, or any model, document or information relating thereto, or provide for the making of payments in respect of any such use, or calculated by reference thereto; and the reproduction or publication of any model or document in connection with the said use shall not be deemed to be an infringement of any copyright [F1 or design right] subsisting in the model or document [F2 or of any topography right].

(2) Where an exclusive licence granted otherwise than for royalties or other benefits determined by reference to the use of the invention is in force under the patent, then—

(a) in relation to any use of the invention which, but for the provisions of this and the last foregoing section, would constitute an infringement of the rights of the licensee, subsection (3) of the last foregoing section shall have effect as if for the reference to the patentee there were substituted a reference to the licensee; and

(b) in relation to any use of the invention by the licensee by virtue of an authority given under the last foregoing section, that section shall have effect as if the said subsection (3) were omitted.

(3) Subject to the provisions of the last foregoing subsection, where the patent, or the right to apply for or obtain the patent, has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention, then—

(a) in relation to any use of the invention by virtue of section forty-six of this Act, subsection (3) of that section shall have effect as if the reference to the patentee included a reference to the assignor, and any sum payable by virtue of that subsection shall be divided between the patentee and the assignor in such proportion as may be agreed upon between them or as may in default of agreement be determined by the court on a reference under the next following section; and

(b) in relation to any use of the invention made for the services of the Crown by the patentee to the order of a Government department, subsection (3) of section forty-six of this Act shall have effect as if that use were made by virtue of an authority given under that section.

(4) Where, under subsection (3) of section forty-six of this Act, payments are required to be made by a Government department to a patentee in respect of any use of an invention, any person, being the holder of an exclusive licence under the patent (not being such a licence as is mentioned in subsection (2) of this section) authorising him to make that use of the invention, shall be entitled to recover from the patentee such part (if any) of those payments as may be agreed upon between that person and the patentee, or as may in default of agreement be determined by the court under the next following section to be just having regard to any expenditure incurred by that person—

(a) in developing the said invention; or

(b) in making payments to the patentee, other than royalties or other payments determined by reference to the use of the invention, in consideration of the licence;

and if, at any time before the amount of any such payment has been agreed upon between the Government department and the patentee, that person gives notice in writing of his interest to the department, any agreement as to the amount of that payment shall be of no effect unless it is made with his consent.

Textual Amendments

F1 Words inserted by Copyright, Designs and Patents Act 1988 (c. 48, SIF 67A), s. 303(1), Sch. 7 para. 5

F2 Words inserted by S.I. 1987/1497, reg. 9(2) para. 2 Table B

Modifications etc. (not altering text)

C1 S. 47 amended by Defence Contracts Act 1958 (c. 38), s. 1(3) extended by S.I. 1965/1536, Sch. 3