In the last days on the Italian newspapers we read that following the emergency request of the Hospital of Chiari (in the province of Brescia), who was suddenly devoid of breathing valves due to the health emergency and the difficulty to get the necessary supply, a local company provided the Hospital with the required valves by printing them with a 3D printer.
We also read that those valves are covered by a patent and therefore the company may risk an infrigment action brought by the patent owner.
On this regard, we believe that it may be interesting recalling the rules on expropriation “in the interest of military defense of the Country or for other reasons of the public interest” provided by the Italian Intellectual property code (art. 141, 142, 143).
These rules provide that a patent may be expropriated by the State in the interest of military defense of the Country or for other reasons in the public interest, the expropriation may be restricted to the right of use for the needs of the Country and it is ordered by a decree of the President of the Republic in which is set the indemnity due to the owner of the industrial property right.
It is a special kind of compulsory license.
Another interesting rule is the one provided by art. 115 of the Italian Intellectual Property Code regarding new plats varieties inventions. According to this rules the breeder’s right may be the object of non-exclusive compulsory licenses for the public interest.
Furthermore, a Ministerial Decree may at any time grant a non-exclusive special compulsory licenses, through payment of reasonable compensation to the owner if the breeder’s right, for the nourishment of human livestock, as well as for therapeutic uses or to produce medicines.
Also, for new plant varieties invention, at paragraph 6 of art. 115, it is provided the expropriation.
At international level, we should recall that art. 31 of the Trips’ Agreement provides that the law of a Member may allow for other use of the subject matter of a patent without the authorization of the right holder.
Generally, such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. However, this this requirement may be waived in the case of a national emergency or other circumstances of extreme urgency. However, the rule provides that any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use.