The following table contains the individual TRIPS conditions and the relevant sections of the Patents Act. Section 34 contains the provisions of the compulsory license and s. 37 contains provisions on non-voluntary licences.<br><br> <br><br> <table border=1> <tr> <td><b>TRIPS Conditions</b></td> <td><b>Patents Act</b></td> <tr> <td><b>31(a): authorization of such use shall be considered on its individual merits</b></td> <td>s. 34(3) The Minister shall make his or her decision [to exploit the patent] after hearing the owner of the patent and any interested person. <br>s. 37(1) provides that the Court, on the action of the prospective licensee, determines the grant of a non-voluntary licence. The merits of each individual suit will be considered.</br> </td></tr> <tr><td><b>31(b): such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;</b></td> <td>S. 34(4) A request for the Minister's authorisation to exploit a patented invention shall be accompanied by evidence that the owner of the patent has received, from the person seeking the authorisation, a request for a contractual licence, but that that person has been unable to obtain such a licence on reasonable commercial terms and conditions and within a reasonable time. <br> <br>s.34(5) Subsection (4) of this section shall not apply in cases of</br> <br>(a) national emergency or other circumstances of extreme urgency provided, however, that in such cases the owner of the patent shall be notified of the Minister's decision as soon as reasonably practicable.</br> <br>(b) public non-commercial use; and</br> <br>(c) anti-competitive practices determined as such by the Minister. </br> <br>The provisions on non-voluntary licenses do not contain provisions which mandate the prospective applicant must first seek the permission of the right holder. This has been flagged for our ongoing legislative review. </td><tr/> <td><b>31(c) the scope and duration of such use shall be limited to the purpose for which it was authorized, and in the case of semi-conductor technology shall only be for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive;</b> </td> <td>s. 34(2) 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 the Minister has determined that practices are anti-competitive, the need to correct such practices.</br> <br>s. 34(6) The exploitation of a patented invention in the field of semi-conductor technology shall only be authorised for public non-commercial use or where a judicial or administrative body has determined that the manner of exploitation of the patented invention, by the owner of the patent or his or her licensee, is anti-competitive, and if the Minister is satisfied that the issuance of the non-voluntary licence would remedy such practice.</br> <br>Section 37(10) prohibits the grant of non-voluntary licenses in the field of semi-conductor technology. Where the Court is minded to grant the licence, it is bound by s. 37(3) to expressly order 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 remuneration to be paid to the first right holder.</br></td></tr> <tr><td><b>31(d) such use shall be non-exclusive</b> </td> <td>s. 34(7) The authorisation shall not exclude</br> <br>(a) the conclusion of license contracts by the owner of the patent;</br> <br>(b) the continued exercise, by the owner of the patent, of his or her rights under section 33(2); or</br> <br>(c) the grant of a non-voluntary licence under section 38 of this Act.</br> <br>Under s. 37, non-voluntary licenses can be granted to "any person interested". Section 37(5) also gives the Court the power to issue a non-voluntary license to the later patent holder where that later patent cannot be exploited without infringing an earlier patent.</br> </td></tr> <tr><td><b>31(e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;</b> </td> <td>s. 34(2) quoted above</br> <br>s. 34(8) Where a third person has been designated by the Minister, the authorisation may only be transferred with the enterprise or business of that person or with the part of the enterprise or business within which the patented invention is being exploited.</br> <br>There are no express provisions referring to the ability to assign non-voluntary licenses but it is open to the Court to make an order related to the scope of the licence.</br> </td></tr> <tr><td><b>31(f) any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use;</b> </td> <td>s. 34(9) The exploitation of the patented invention by the Government agency or third person designated by the Minister shall be predominantly for the supply of the market in Saint Christopher and Nevis.</br> <br>The beneficiary of a non-voluntary licence shall have the right to exploit the patented invention only within St. Christopher and Nevis [s. 37(4)(a)]</br></td></tr> <tr><td><b>31 (g) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances;</b> </td> <td>s. 34(11) Upon the request of the owner of the patent, the Minister shall terminate the authorisation if he or she is satisfied, after hearing the parties, that the circumstances which led to his or her decision have ceased to exist and are unlikely to recur, or that the Government agency or third person designated by him or her has failed to comply with the terms of the decision.</br> <br>s. 34(12) Notwithstanding subsection (11) of this section, the Minister shall not terminate the authorisation if he or she is satisfied that the need for adequate protection of the legitimate interests of the Government agency or third person designated by him or her justifies the maintenance of the decision. The Patent Act grants the right to both the right holder and an exclusive licensee to bring proceedings before the Court for infringement (s. 44). </br></td></tr> <tr><td><b>31(h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;</b> </td> <td>s.34(2) quoted above Where the Court has granted a non-voluntary licence, it must fix the amount of remuneration to be paid to the patentee and the conditions of payment. [s.37(3)(c) </br></td></tr> <tr><td><b>31(i) the legal validity of any decision relating to the authorization of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;</b> </td> <td>s. 61(1) The Court shall have jurisdiction in cases of disputes relating to the application of this Act and the Regulations, and in matters which, under this Act, may be brought before it. </br> <br>(2) Any person who is aggrieved by a decision of the Minister or the Registrar under this Act may, within two months of that decision, appeal to the Court. </br> <br>Decisions of the Court in relation to compulsory or non-voluntary licenses are always subject to judicial review by the Eastern Caribbean Supreme Court of Appeal.</br></td> </tr> <tr><td><b>31(j) any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member</b> </td> <td><br>s. 61 quoted above </br> <br>Decisions of the Court in relation to compulsory or non-voluntary licenses are always subject to judicial review by the Eastern Caribbean Supreme Court of Appeal.</br></td></tr> <tr><td><b>31(k) Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur;</b> </td> <td><br>s. 61 quoted above</br></td></tr> <tr><td><br><b>31(l) where such use is authorized to permit the exploitation of a patent ("the second patent") which cannot be exploited without infringing another patent ("the first patent"), the following additional conditions shall apply:</br> <br><b>(i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent;</br> <br><b>(ii) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the invention claimed in the second patent; and</br> <br><b>(iii) the use authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent.</br></b> </td> <td><br>Section 37(5) provides that "Where the invention claimed in a patent, referred to in this section as a "later patent", cannot be exploited in Saint Christopher and Nevis without infringing a patent granted on the basis of an application benefiting from an earlier filing, or, where appropriate, priority date, referred to in this section as an "earlier patent", and if the invention claimed in the later patent involves an important technical advance of considerable economic importance in relation to the invention claimed in the earlier patent, the Court may, upon the application of the owner of the later patent, issue a non-voluntary licence to the extent necessary to avoid infringement of the earlier patent.</br> <br>S. 37(6) gives the earlier patent right holder the power to apply to the Court for a non-voluntary licence in respect of the later patent.</br> <br>S. 37(8) provides that a transfer of the later patent can only be made with the earlier patent. </br></td></tr>

Section 40(7) provides that in any proceedings for infringement, other than criminal proceedings, where the subject matter of the patent is a process for obtaining a product, the burden of establishing that the product was not made by the process shall rest on the defendant if (a) the product is new; or (b) substantial likelihood exists that the product was made using another process and the patentee has been unable, through reasonable efforts, to determine the process used.

There is no legislation for the protection of undisclosed information in Saint Kitts and Nevis but depending on the nature of the information, copyright protection may apply.

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

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

Yes, all major provisions of the TRIPS Agreement are incorporated into the Industrial Property Act 2014 in Seychelles. The Commonwealth Secretariat had provided technical assistance to draft the Industrial Property Act 2014, and the draft was accepted by WTO Member states during Seychelles' WTO accession negotiation.

The Industrial Property Act 2014 grants patent protection for inventions relating to products and processes in all fields of technology. Please see sections 5(1), 18(1), 18(2)(a), 18(2)(b), 18(3) of Industrial Property Act 2014. Matters excluded from patent protection are mentioned in section 6(1) of the Industrial Property Act, 2014. Section 6(1) is in compliance with the TRIPS Agreement. Section 19 of the Industrial Property Act 2014 has provisions of exception to patent protection which are in compliance with the TRIPS Agreement.

Seychelles considers importation as "working a patent" and precludes compulsory licensing if a product is being imported.

Sections 23, 24, 25, 26, and 27 of the Industrial Property Act 2014 meet all the conditions enumerated in Article 31 of the TRIPS Agreement.

Section 109 of the Industrial Property Act 2014 provides the principle of the reversal of burden of proof in patent litigation in Seychelles.

Section 106 of the Industrial Property Act 2014 ensures that undisclosed test or other data submitted by an applicant to the responsible agency in the procedure for market authorization of a pharmaceutical, agricultural or chemical product is protected against discloser and against unfair commercial use by a competitor.

Yes. The exception to undisclosed information operates in circumstances, where it is necessary to protect the public or unless measures steps have been taken to ensure that the data are protected against unfair commercial use In addition this provision in the Industrial Property Act 2014 is in line with Article 39.1 of the TRIPS Agreement. The relevant authority in Seychelles is therefore responsible for ensuring that any exceptions being provided against the protection of undisclosed information is necessary to protect the public or whether measures have been taken to protect the data against unfair commercial use.

There is no time limit of protection for such undisclosed test data.

The Court have the authority to adopt provisional measures inaudita altera parte where appropriate. Please see section 111(2) of the Industrial Property Act 2014.

Section 111(3) of the Industrial Property Act 2014. The Court may require the applicant to provide any reasonably available evidence in order to satisfy it with a sufficient degree of certainty that the applicant is the rights holder and that the applicant's right is being infringed or that such infringement is imminent, and the Court may order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.

The provisional measures and relevant procedures are prescribed on sections 108, subsections from (1) to (8) of section 111 of the Industrial Property Act 2014.

Sections 118(1), 118(2), 118(3), 118(4), 119, 120 of the Industrial Property Act 2014 can be used to combat counterfeiting and piracy. In addition, the Customs Management Act 2011 and through the enactment of subsequent Regulations (S.I 42 OF 2014 s.77 - 82) empowers Customs officials to handle goods deemed to be "counterfeit", "pirated", "infringing" etc. at the border. Section 115(3) of the Industrial Property Act 2014 has provision where public authorities or officers shall be exempted from liability where actions were taken or intended in good faith.

The Industrial Property Act 2014 and the Copyrights Act 2014 meet the requirements of Article 41 of the TRIPS Agreement. Please see part VIII – Enforcement of Industrial Property Rights (sections 107 – 120 and section 124) of the Industrial Property Act 2014 and Part V of the Copyrights Act 2014 (sections 29- 34).

The Court has all powers including seizure, destroy infringing goods, or be deposited of outside the channels of commerce. Police officers and any authorised officers have the power to 'enter, search and seize'. Please see sections 111, 112, 113, 118, 119, 120 of the Industrial Property Act 2014. Section 115(3) of the Industrial Property Act 2014 has provision where public authorities or officers shall be exempted from liability where actions were taken or intended in good faith. The Copyright Act 2014 makes provision for infringing goods to be seized and destroyed by police officers (section 29) In addition, the Customs Management Act 2011 and through the enactment of subsequent Regulations (S.I 42 OF 2014 s.77 - 82) empowers Customs officials to handle goods deemed to be "counterfeit", "pirated", "infringing" etc.

The Government had requested technical assistance from the Commonwealth in the form of a long term consultant to provide on the job training to the staff of the Registrar division. He took office in early 2016 and since then, has provided training to the staff in order to be able to better implement the Industrial Property Act 2014. The Government is currently planning on continuing its initiative from last year of organising workshops for relevant institutions in order to increase their understanding of the TRIPS Agreement and IP in general. Workshops for the private sector will also be organised to ensure that they are aware of their rights and obligations. The Government is also in the process of reviewing the Copyright Act 2014 and the Industrial Property Act 2014 and their respective legislations with the aim of identifying any implementation issues.