Argentina-Selected Compulsory Licensing, Government Use, and Notable Patent Exception Provisions

Law No. 24.481 on Patents and Utility Models (as amended by Law No. 24.572) (consolidated text approved by Decree No. 260/96 of March 20, 1996)

Chapter 1 Patentability

Art. 6. The following shall not be considered inventions for the purposes of this Law:

(a) discoveries, scientific theories and mathematical methods;

(b) literary or artistic works or any other aesthetic creation; scientific works;

(c) schemes, rules or methods for performing intellectual activities, playing games or engaging in economic and business activities; computer programs;

(d) forms of data presentation;

(e) methods of surgical, therapeutic or diagnostic treatment applicable to the human body or to animals;

(f) the juxtaposition of known inventions or mixtures of known products, changes in the shape, dimensions or constituent materials thereof, except in the case of combination or merging in such a way that the elements are unable to function separately or where the characteristic qualities or functions thereof are so altered as to produce an industrial result that is not obvious to a person skilled in the field concerned;

(g) any kind of live material or substances already existing in nature.

Art. 7. The following shall not be patentable:

(a) inventions the exploitation of which on the territory of the Argentine Republic is to be prevented in the interest of the public good or morality, the health or life of persons or animals, the conservation of plants or the avoidance of serious damage to the environment;

(b) all biological and genetic material existing in nature or derived therefrom in biological processes associated with animal, plant and human reproduction, including genetic processes applied to the said material that are capable of bringing about the normal, free duplication theof in the same way as in nature.

Chapter VII Other Uses Not Requiring Authorization by the Owner of the Patent

Art. 42. Where a prospective user has attempted to secure the grant of a license from the owner of a patent on reasonable commercial terms and conditions under Article 43, and the attempts have had no effect after 150 days have elapsed following the date on which the license in question was requested, the National Institute of Industrial Property may allow other uses of the said patent without authorization by the owner thereof. Without prejudice to the foregoing, notice shall be given to the authorities created by Law No. 22.262, or such law as may amend or replace it, on the protection of free competition, for whatever purposes may be appropriate.

Art. 43. If, after three months have elapsed since the grant of the patent, or four since the filing of the application, the invention has not been exploited, except in cases of force majeure, or if no genuine and effective preparations have been made for such exploitation, or where such exploitation has been interrupted for more than a year, any person may apply for authorization to use the invention without seeking the permission of the owner thereof.

Objective difficulties of legal and technical character, such as delays in obtaining registration with the authorities to secure marketing authorization that are beyond the control of the owner of the patent and make the working of the invention impossible shall be considered cases of force majeure in addition to those legally recognized as such. Lack of financial resources or the lack of economic viability shall not in themselves constitute justification.

The National Institute of Industrial Property shall inform the owner of the patent of the nonfulfillment of the provisions of the first paragraph above before allowing use of the patent without his authorization.

The implementing authority, after having heard the parties and established their inability to agree, shall set reasonable remuneration to be charged by the owner of the patent, which remuneration shall be determined by the particular circumstances of each case, due account being taken of the economic value of the authorization and also of the average rate of royalties payable in the sector concerned under contractual licenses between independent parties. Decisions on the licensing of such uses shall be taken within 90 working days from the filing of the application, and appeals from them shall lie to the civil and commercial Federal courts. The substantiation of the appeal shall have no staying effect.

Art. 44. The right of exploitation conferred by a patent shall be granted without permission from the owner thereof where the competent authority has established that the said owner has engaged in anti-competitive practices. In such cases, without prejudice to the remedies available to the owner of the patent, the said right shall be granted without the need for application of the procedure laid down in Article 42.

For the purposes of this Law, the following practices among others shall be considered anti-competitive:

(a) the setting of prices for the patented products that are excessive in relation to the market average or discriminatory, particularly where alternative proposals exist for supplying the market at prices significantly lower than those charged by the patent owner for the same product;

(b) refusal to supply the local market on reasonable commercial terms;

(c) the slowing down of marketing or production activities;

(d) any other act capable of being included among the practices considered punishable by Law No. 22.262 or such law as may replace it or be substituted for it.

Art. 45. The National Executive may, for reasons of health emergency or national security, order the exploitation of certain patents through the grant of the exploitation rights under a patent; the scope and duration thereof shall be limited to the purposes of the grant.

Art. 46. The right of use without authorization from the owner of the patent shall be granted to permit the working of a patent-the second patent-that cannot be worked without infringing another patent-the first patent-provided that the following conditions are met:

(a) the invention claimed in the second patent must represent significant technical progress, of considerable economic importance, compared with that claimed in the first patent;

(b) the owner of the first patent must be entitled to cross-licensing on reasonable terms for the exploitation of the invention claimed in the second patent;

(c) the authorized use of the first patent may not be assigned without assignment also of the second patent.

Art. 47. When other uses without authorization from the owner of the patent are allowed, the following provisions shall be observed:

(a) the authorization of the uses shall be given by the National Institute of Industrial Property;

(b) the authorization of the uses shall be considered in the light of the particular circumstances of each case;

(c) for the uses contemplated in Article 43 or 46 or in both Articles, before grant the prospective user