Patents Act, 1964

Use of patented inventions for the service of the State.

92.—(1) A patent shall have to all intents the like effect as against the State as it has against a citizen:

Provided that any Minister of State may, by himself or by such of his agents, contractors, or others as may be authorised in writing by him at any time after the application for a patent, make, use, exercise or vend the invention for the service of the State on such terms as may, either before or after the use thereof, be agreed on with the approval of the Minister for Finance by such Minister and the applicant or proprietor, or, in default of agreement, as may be settled in the manner hereinafter provided, and the terms of any agreement or licence concluded between the applicant or proprietor and any person other than a Minister of State shall be inoperative to prevent or regulate the making, use, exercise or vending of the invention for the service of the State:

Provided further that, where an invention which is the subject of any patent or application for a patent has, before the priority date of the relevant claim of the complete specification, been duly recorded in a document by, or been tried by or on behalf of any such Minister (such invention not having been communicated directly or indirectly by the applicant or the proprietor), any Minister of State or such of his agents, contractors, or others as may be authorised in writing by him, may make, use, exercise or vend the invention so recorded or tried for the service of the State free of any royalty or other payment to the applicant or proprietor, 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 the applicant or proprietor or to any independent expert mutually agreed upon.

(2) Where any use of an invention is made by or with the authority of a Minister of State 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 or proprietor 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 require.

(3) In case of any dispute as to or in connection with the making, use, exercise or vending of an invention, under this section, or the terms therefor, or as to the existence or scope of any record or trial as aforesaid, 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 tried before an arbitrator upon such conditions as it may direct. The Court or arbitrator in settling the terms as aforesaid shall be entitled to take into consideration any benefit or compensation which the applicant or proprietor or any other person interested in the application or patent may have received directly or indirectly from the State or from any Minister or any Government Department in respect of such application or patent.

(4) In any proceedings under this section to which a Minister of State is a party, such Minister may—

(a) if the patentee is a party to the proceedings, apply for revocation of the patent upon any ground upon which a patent may be revoked under section 34 of this Act;

(b) in any case, put in issue the validity of the patent without applying for its revocation.

(5) The right to use an invention for the service of the State under the provisions of this section shall include the power to sell any articles made in pursuance of such right which are no longer required for the service of the State.

(6) The purchaser of any articles sold in the exercise of powers conferred by this section, and any person claiming through him, shall have power to deal with them in the same manner as if they were made pursuant to a patent held on behalf of the State.

(7) During any period when an order under paragraph (a) of subsection (8) of this section is in force the power exercisable in relation to an invention by a Minister of State, or a person authorised by a Minister of State under subsection (1) of this section, shall include power to make, use, exercise and vend the invention for any purpose which appears to such Minister necessary or expedient—

(a) for the maintenance of supplies and services essential to the life of the community;

(b) for securing a sufficiency of supplies and services essential to the well-being of the community;

(c) for promoting the productivity of industry, commerce and agriculture;

(d) for fostering and directing exports and reducing imports, or imports of any classes, from all or any countries and for redressing the balance of trade;

(e) generally for ensuring that the whole resources of the community are available for use, and are used, in a manner best calculated to serve the interests of the community;

(f) for assisting the relief of suffering and the restoration and distribution of essential supplies and services in any foreign countries that are in grave distress as the result of war; or

(g) for ensuring the public safety and the preservation of the State;

and any reference in this section to the services of the State shall be construed as including a reference to the purposes aforesaid.

(8) (a) Whenever the Government are of opinion that, in the interests of the community, owing to the existence of exceptional circumstances, it is desirable that the powers conferred by subsection (7) of this section should be available, they may by order declare that the powers aforesaid shall be available.

(b) Whenever an order under paragraph (a) of this subsection is in force and the Government are of opinion that the exceptional circumstances referred to in the said paragraph (a) no longer exist, they shall by order revoke the order under the said paragraph (a).

(9) 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.