(1) The non-exclusive authorisation to commercially use an invention is granted by the Federal Patent Court in an individual case in accordance with the following provisions (compulsory licence) if
1. a licence seeker has, within a reasonable period of time, unsuccessfully attempted to obtain permission from the proprietor of the patent to use the invention on reasonable commercial terms and conditions, and
2. the public interest calls for the grant of a compulsory licence.
(2) Where a licence seeker cannot exploit an invention for which he or she holds protection under a patent with a later filing or priority date without infringing a patent with an earlier filing or priority date, the licence seeker is entitled, in respect of the proprietor of the patent with the earlier filing or priority date, to the grant of a compulsory licence from the proprietor of the patent if
1. the condition under subsection (1) no. 1 is fulfilled, and
2. his or her own invention demonstrates an important technological advance of substantial economic significance compared to that of the patent with the earlier filing or priority date.
The proprietor of the patent can require the licence seeker to grant him or her a cross-licence on reasonable terms and conditions for the use of the patented invention with the later filing or priority date.
(3) Subsection (2) applies accordingly where a plant breeder cannot obtain or exploit a plant variety right without infringing an earlier patent.
(4) A compulsory licence under subsection (1) may be granted for a patented invention in the field of semiconductor technology only where this is necessary to eliminate those anti-competitive practices pursued by the proprietor of the patent which have been established in judicial or administrative proceedings.
(5) Where the proprietor of the patent does not apply the patented invention in Germany, or does not do so predominantly, compulsory licences under subsection (1) may be granted to ensure an adequate supply of the patented product on the German market. Import is thus equivalent to the use of the patent in Germany.
(6) The grant of a compulsory licence in respect of a patent is admissible only after the patent has been granted. The compulsory licence may be granted subject to limitations and made dependent on conditions. The extent and duration of use are to be limited to the purpose for which the compulsory licence was granted. The proprietor of the patent is entitled to remuneration from the proprietor of the compulsory licence, such remuneration being equitable in the circumstances of the case and taking into account the economic value of the compulsory licence. Where, in relation to recurrent remuneration payments due in the future, there is a substantial change in the circumstances which governed the fixing of the amount of remuneration, each party is entitled to require a corresponding adjustment. Where the circumstances upon which the grant of a compulsory licence was based no longer apply and if their recurrence is improbable, the proprietor of the patent can require withdrawal of the compulsory licence.
(7) A compulsory licence in respect of a patent may be transferred only together with the business which is involved in exploiting the invention. A compulsory licence in respect of an invention which is the subject matter of a patent with an earlier filing or priority date may be transferred only together with the patent with a later filing or priority date.