e-TRIPS Gateway (Beta)

10. Please describe in detail the manner in which the higher level of protection required for wines and spirits under Article 23.2 of the TRIPS Agreement is implemented, citing to the relevant provisions of law or regulation, and provide examples of geographical indications for such products.

In accordance with TRIPS Art. 23.2, s. 13 also enables an interested person to initiate court proceedings where a geographical indication is used on a wine or spirit that does not originate in the place indicated by the GI. This protection extends even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like. There are no registered geographical indications in Saint Kitts and Nevis.

11. Please describe the procedure that must be followed to obtain protection for textile designs and cite to the relevant provisions of law or regulation.

There is no legislation on industrial designs in Saint Kitts and Nevis but depending on the nature of the design, it may qualify for copyright protection as an artistic work.

12. Please describe the procedure that must be followed to obtain protection for textile designs and cite to the relevant provisions of law or regulation.

Provided that the textile design qualifies as a new invention that involves an inventive step and that design invention is capable of industrial application, the inventor can apply for a patent through conventional application procedure i.e. by an application to the Registrar.

13. Please describe in detail the way in which the patent law of Saint Kitts and Nevis implements Article 27 of the TRIPS Agreement, indicating any exceptions to patentability provided for, and including details regarding the protection for micro-organisms and non-biological and microbiological processes and plant varieties. Please cite to the relevant provisions of law.

Section 8 of the Patents Act provides that a patent can be granted for an invention that is new, involves an inventive step and is capable of industrial application. The invention may be or relate to a product or process. However, s. 10 provides that even if there are inventions that fall within those boundaries, they would be excluded from patentability if the commercial exploitation of such inventions are contrary to public order or morality, prejudicial to human, animal or plant life or health or prejudicial to the environment. Additionally, inventions that consist of the following cannot be patented, that is: (a) discovery, scientific theory or mathematical method; (b) a scheme, rule or method for doing business, performing a mental act of playing a game; and (c) methods for the treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practised on the human or animal body (this does not apply to products for use in any of the methods specified above).

14. Please describe in detail the rights provided patent holders under the patent law of Saint Kitts and Nevis and cite to the relevant provisions of law.

By virtue of s. 32 of the Patents Act, no person, other than the patentee, shall exploit a patented invention in Saint Kitts and Nevis without the patentee's authority. An action can be brought in the High Court against any person who exploits the invention without authority. The law expressly provides that "exploiting" a patented invention means: (a) where the patent is granted in respect of a product, i. making, importing, offering for sale, selling, and using it into Saint Christopher and Nevis; and ii. stocking the product for the purpose of offering it for sale or selling, or using it; and (b) where the patent is granted in respect of a process, i. using the process; and ii. doing any act referred to in paragraph (a) in respect of a product obtained by means of that process. Section 32(5) further provides that the rights in a patent shall not extend to: (a) acts in respect of articles put on the market in Saint Kitts and Nevis by the patentee or with his or her consent; (b) the use of articles on an aircraft, land vehicles or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of Saint Kitts and Nevis; (c) acts done only for experimental purposes relating to a patented invention; (d) the extemporaneous preparation for individual cases, in a pharmacy, of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared; or (e) acts performed by any person who was, in good faith, while in Saint Kitts and Nevis, before the filing date or where priority is claimed, the priority date of the application on which the patent is granted, using the invention or making effective and serious preparation for such use.

15. Please describe in detail any provisions in the laws of Saint Kitts and Nevis permitting unauthorized use of a patent, citing to the relevant provisions of law, and describe in detail the conditions under which such use can occur.

Section 34 provides that the Minister may decide that, even without the agreement of the owner of the patent, that a Government agency or a third person designated by the Ministry may exploit the invention where (a) the public interest, in particular, National Security, Nutrition, Health, or the development of other vital sectors of the national economy so requires; or (b) the Minister has determined that the manner of exploitation, by the owner of the patent or his or her licensee, is anti-competitive, and he or she is satisfied that the exploitation of the invention in accordance with this subsection would remedy such practice. The exploitation of the patented invention shall be limited to the purpose for which it was authorised and shall be subject to the payment to the said owner of an adequate remuneration therefor, taking into account the economic value of the Minister's authorisation, as determined in the said decision, and, where a decision has been taken under subsection (b) above, the need to correct anti-competitive practices. Before deciding to issue a compulsory license, the Minister shall hear the owner of the patent and any interested person. A request for the Minister's authorization to exploit a patented invention must be prefaced by a request to the patent holder for a contractual licence. It must be shown that that person was unable to obtain such a licence on reasonable commercial terms and conditions and within a reasonable time. The requirement to obtain the right holder's permission can be waived in cases of public non-commercial use, anti-competitive practices and circumstances of national or extreme urgency (patent owner should be notified by the Minister as soon as is reasonably practicable in the latter case). Additionally, under s. 37 of the Act, the Court may grant a non-voluntary licence. At any time after four years has passed since the date of the grant or three years from the date of filing (whichever later) an interested person may apply to the Court for such a licence on the grounds that the patented invention is not being exploited or is being insufficiently exploited by working the invention within the Federation or by importation thereinto. Where the Court is satisfied that such non-exploitation or insufficient exploitation has not been justified, it will grant the non-voluntary licence. The Court is then bound to fix the scope and function of the licence, the time limit within which the licensee must begin to exploit the patented invention and the amount and conditions of the remuneration to be paid to the patentee.

16. What term of protection does the patent law of Saint Kitts and Nevis provide for patents? Please describe any provisions for extension of the term of protection and cite to the relevant provisions of the law.

A patent expires twenty years after the filing date of the application [s. 27(1)].

17. Please describe in detail the protection for layout-designs of integrated circuits provided under the laws of Saint Kitts and Nevis, including the term of protection, and cite to the relevant provisions of law.

Under s. 6 of the Protection of Layout Designs (topographies) of Integrated Circuits Act makes it unlawful to perform certain acts without the authorisation of the right holder. This includes: (a) the reproduction, whether by incorporation in an integrated circuit or otherwise, of the protected layout-design in its entirety or any part thereof, except the reproduction of any part that does not comply with the requirement of originality defined in section 4; (b) the importation, sale or other distribution, for commercial purposes, of the protected layout-design, an integrated circuit in which the protected layout-design is incorporated, or an article incorporating such an integrated circuit in so far as it continues to contain an unlawfully reproduced layout-design. Where an infringement has occurred it is open to the right holder to apply to the Court for relief including an injunction, damages, an order for the seizure, forfeiture or destruction of the infringing goods or any other remedy provided for in law. Section 7 provides that the term of protection is for ten years after the date of commencement. Protection commences: (a) on the date of the first commercial exploitation, anywhere in the world, of the layout-design by, or with the consent of, the right holder, provided that an application for protection is filed by the right holder with the Registrar within the time limit referred to in section 8(3); or (b) on the filing date accorded the application for the registration of the layout-design filed by the right holder if the layout-design has not been previously exploited commercially anywhere in the world.

18. Please describe in detail how the laws of Saint Kitts and Nevis provide for the protection of undisclosed information as required by Article 39.2 of the TRIPS Agreement and provide citations to the relevant provisions of law.

There is currently no legislation dealing with undisclosed information therefore no further response can be given to questions 17 to 19.

19. Please describe in detail the manner in which protection is provided test data regarding pharmaceutical and agricultural chemical products submitted to the government in order to obtain marketing approval in Saint Kitts and Nevis and cite to the relevant provisions of law.

There is currently no legislation dealing with undisclosed information therefore no further response can be given to questions 17 to 19.

20. Are other applicants for marketing approval for their own versions of previously approved pharmaceutical or agricultural chemical products permitted to rely on data submitted by the earlier applicant? If so, how long a period of exclusivity is given the earlier applicant before such reliance becomes possible.

There is currently no legislation dealing with undisclosed information therefore no further response can be given to questions 17 to 19.

21. Please describe in detail the manner in which the laws of Saint Kitts and Nevis provide for effective action against infringement of intellectual property rights as required by Article 41.1 of the TRIPS Agreement.

Please refer to the responses to the Checklist on Issues of Enforcement.

22. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order production of evidence necessary to substantiate a party's claims where that party has been unable to obtain such evidence from the opposing party. Please describe how the laws or regulations of Saint Kitts and Nevis provide this authorization, citing to the relevant provisions of law or regulation.

Please refer to the responses to the Checklist on Issues of Enforcement.

23. Please describe in detail all of the civil remedies that are available to right holders under the laws of Saint Kitts and Nevis, citing to the relevant provisions of law or regulation.

Please refer to the responses to the Checklist on Issues of Enforcement.

24. Please describe in detail the provisional procedures and remedies available to right holders under the laws of Saint Kitts and Nevis, citing to the relevant provisions of law and regulation, and indicate any condition under which a right holder may avail itself of those procedures and remedies.

Please refer to the responses to the Checklist on Issues of Enforcement.

25. Please describe in detail the procedures under the laws of Saint Kitts and Nevis that provide for border enforcement at least for trademark counterfeiting and copyright piracy, identifying the competent authority and citing to the relevant provisions of law or regulation.

Please refer to the responses to the Checklist on Issues of Enforcement.

26. Please indicate if border enforcement is available to owners of other forms of intellectual property and, if so, please describe the procedures and remedies available in relation to each form of intellectual property, citing the relevant provisions of law.

Please refer to the responses to the Checklist on Issues of Enforcement.

27. Article 58 of the TRIPS Agreement specifies procedures to be followed where the competent authorities can act ex officio. Please explain whether the competent authorities in Saint Kitts and Nevis are empowered to act ex officio and, if so, please identify the intellectual property areas subject to ex officio action.

Please refer to the responses to the Checklist on Issues of Enforcement.

28. Please describe in detail how the laws of Saint Kitts and Nevis implement Article 61 of the TRIPS Agreement that requires Members to have criminal procedures and penalties, including imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful trademark counterfeiting and copyright infringement on a commercial scale. Please cite to the relevant provisions of law and regulation.

Please refer to the responses to the Checklist on Issues of Enforcement.

29. Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and destruction of infringing goods and any materials and implements the predominant use of which has been the commission of the offence. Please describe the provisions in the laws of Saint Kitts and Nevis that provide for such remedies, and describe the circumstances in which those remedies would be imposed, citing to the relevant provisions of law or regulation.

Please refer to the responses to the Checklist on Issues of Enforcement.