Recital (32)

The licensee should pay adequate remuneration to the right holder. The amount of the adequate remuneration should be determined by the Commission having regard to the circumstances of each case, considering the economic value of the exploitation authorised under the Union compulsory licence. To assess that economic value, the Commission should take into account the expected total gross revenue generated by the licensee through the relevant activities under the Union compulsory licence, the hypothetical amount that a reasonable right holder would request and that a reasonable licensee would pay under a voluntary agreement, as well as any public support received by the right holder to develop the invention. The amount of the adequate remuneration should be determined also taking into account the extent to which research and development costs have been amortised by the right holder. That amount should ensure proper remuneration in cases where the development costs have not been appropriately amortised. Depending on the circumstances of the case and where relevant, the Commission should also be able to take into account humanitarian grounds relating to the granting of the Union compulsory licence. In addition, the Commission should consider the comments submitted by the right holder and the assessment made by the competent advisory body with regard to the amount of the adequate remuneration, taking into consideration general practices and any existing precedents in the relevant field. In the case of a Union compulsory licence granted with regard to a published patent application that ultimately does not lead to the granting of a patent, the grounds for the patent applicant to be remunerated in respect of the subject matter of the application will not have come into being. In such circumstances, the right holder should be required to refund the remuneration received under the Union compulsory licence. The same rule should apply mutatis mutandis in the case of published applications for utility models.