Examen de la legislación de aplicación del Acuerdo sobre los ADPIC - Búsqueda

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En el párrafo 2 del artículo 63 del Acuerdo sobre los ADPIC, se exige a los Miembros que notifiquen al Consejo de los ADPIC las leyes y los reglamentos hechos efectivos por el Miembro en cuestión y referentes a la materia del Acuerdo, con el fin de ayudar al Consejo en su examen de la aplicación del Acuerdo.

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Página 670 de 677   |   Número de documentos : 13533

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IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 21. Please state whether or not your legislation provides for the right to issue a compulsory licence for industrial designs.
Our legislation does not provide for the right to issue a compulsory licence for industrial designs. It provides licence contracts. Under Article 69 of the law: 1) For the purposes of this law, "licence contract" means any contract by which the owner of an registered design ("the licensor") gives to the other party ("the licensee") his agreement for that other party to do any of the acts referred to in Article 68(1) of this Law. 2) A licence contract shall be made in writing and shall be signed by the parties to the contract. Otherwise it shall not be valid. The fact that the contract has been concluded shall be recorded in the Register of industrial designs on payment of the prescribed fee. The licensee shall be entitled to institute any legal proceedings concerning the licence contract only if it has been recorded in the Register of industrial designs.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 22. Please indicate for what period of time your legislation grants protection for industrial designs.
In Article 68 of the law it is stipulated: 1) The registration is made for 5 years counted from the filing date; 2) The registration may be renewed, on payment of the prescribed fee, for additional terms of five years each up to a total term of 15 years counted from the filing date.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 23. Please describe how your legislation defines the notions of: novelty, inventiveness and industrial application.
According to Article 4 of the law: 1) An invention shall be considered novel if it does not form part of the prior art. For the determination of novelty, items of prior art may only be taken into account individually. 2) The prior art shall consist of everything which, before the filing date or, where priority is claimed, the priority date of the application claiming the invention (hereinafter priority date), has been made available to the public by means of publishing, use, demonstration or in any other way. 3) The prior art shall also include the content of any patent application as filed in, or with effect for, the Republic of Albania, to the extent that such application or the patent granted thereon is published subsequently, provided that the filing date or, where priority is claimed the priority date of such application is earlier than the date referred to in paragraph (2). According to Article 5 of the law: An invention shall be considered to involve an inventive step if, having regard to the prior art, it would not have been obvious to a person skilled in the art at the filing date or, where priority is claimed, the priority date of the application claiming the invention. According to Article 6 of the law: An invention shall be considered industrially applicable if it can be made or used in any kind of industry. Industry shall be understood in its broadest sense and shall cover any productive activities and services.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 24. Please explain whether or not in your legislation, patent or otherwise, patent rights are enjoyed without any exclusions. If exclusions are provided for, please describe in detail how these exclusions are applied in legal as well as practical terms.
Exclusions from patentability are specified in Article 3, paragraphs 2-7 as follows: 2) The following, in particular, shall not be regarded as inventions within the meaning of paragraph (1): a) discoveries, scientific theories and mathematical methods; b) aesthetic creations; c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; d) presentations of information. 3) The provisions of paragraph (2) shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a patent application or patent relates to such subject-matter or activities as such. 4) A patent shall not be granted in respect of an invention the publication or exploitation of which would be contrary to public order or morality. 5) No patents shall be granted for substances obtained through internal nuclear transformations for military purposes. 6) No patents shall be granted for inventions of surgical, diagnostic or therapeutical methods practised on the human or animal body, as they shall be regarded as inventions which are not susceptible of industrial application within the meaning of paragraph (1). This provision shall not apply to inventions relating to substances and devices for use in any of these methods. 7) No patents shall be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 25. Please explain whether your legislation provides for the exclusion of inventions from patentability based on ordre public or morality. If so, please explain the relevant section of your legislation and explain its formulation. Please also explain if it has been applied in practice.
Please see paragraph 4 of Article 3 (cited above). Until now, there are no cases applied in practice.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 26. Please explain whether or not diagnostic, therapeutic and surgical methods are excluded from patentability in your legislation. If so, please explain the relevant section of your legislation and explain its formulation.
Yes, they are excluded. Please see paragraph 6 of Article 3 as cited above.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 27. Please explain whether or not plants, animals and essentially biological processes are excluded from patentability in your legislation. If so, please explain the relevant section of your legislation and explain its formulation.
Yes, they are excluded. Please see paragraph 7 of Article 3 as cited above.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 28. Please describe how micro-organisms, non-essentially biological processes, microbiological processes and plant varieties are protected in your legislation. Please explain, in this respect, the relevant sections of your legislation.
They are protected under the second part of paragraph 7, of Article 3 of the law (see above). We are preparing all the documents to ratify in the near future the Budapest Treaty for the protection of micro-organisms. The Ministry of Agriculture and Food has prepared a new law for the protection of new varieties of plants according to UPOV standards, which should enter into force probably by the end of this year.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 29. Please explain how your legislation protects patent right holders against the importing and against the offering for sale of a patented invention.
In Article 27 of the law it is defined: 1) Where the patent concerns a product, the owner of the patent shall have the right to prevent third parties from performing, without his authorization, the following acts: a) the making of a product incorporating the protected invention; b) the offering or the putting on the market of a product incorporating the protected invention, the using of such a product, or the importing or stocking of such a product for such offering or putting on the market; c) the inducing of other parties to perform any of the above acts. 2) Where the patent concerns a process, the owner of the patent shall have the right to prevent third parties from performing, without his authorization, the following acts: a) the using of a process which is the subject matter of the patent; b) in respect of any product directly obtained by such process, any of the acts referred to in paragraph (1)(b), even where a patent cannot be obtained for the said product; c) the inducing of other parties to perform any of the above acts.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 30. Please state if your legislation provides for patent product protection of pharmaceutical and agricultural chemical products. In the affirmative, please indicate the legal reference.
Yes. It is according to Article 3, paragraph 1 of the law which states: "In order to be patentable, an invention shall be novel, shall involve an inventive step and shall be industrially applicable." Whereas Article 6 underlines: "An invention shall be considered industrially applicable if it can be made or used in any kind of industry. Industry shall be understood in its broadest sense and shall cover any productive activities and services."
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 31. Please clarify if the patent protection of a process, as provided for in your legislation, covers the product obtained directly by that process.
According to Article 27, paragraph 2 of the law: Where the patent concerns a process, the owner of the patent shall have the right to prevent third parties from performing, without his authorization, the following acts: a) the using of a process which is the subject matter of the patent; b) in respect of any product directly obtained by such process, any of the acts referred to in paragraph (1)(b), even where a patent cannot be obtained for the said product; c) the inducing of other parties to perform any of the above acts.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 32. Please explain the additional conditions, if any, in your legislation other than the sufficient disclosure of the invention in Article 29 of the TRIPS Agreement (e.g. submission of justification for access to genetic material or prior inform consent to its use). If such additional conditions exist, please point out the relevant legislations and describe the additional conditions in detail.
Paragraph 1 of Article 13 of the law states: a) The application shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art. b) Where the application refers to biologically reproducible material which cannot be disclosed in the application in such a way as to enable the invention to be carried out by a person skilled in the art and such material is not available to the public, the application shall be supplemented by a deposit of such material with a recognized depositary institution.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 33. Please describe if your legislation provides for limited exceptions to the exclusive rights conferred by a patent. If affirmative, please make a reference to relevant legislation.
Article 27, paragraph 3 of the law states: The owner of a patent shall have no right to prevent third parties from performing, without his authorization, the acts referred to in paragraphs (1) and (2) (cited above) in the following circumstances: a) where the act concerns a product covered by the patent after it has been put on the market by the owner of the patent, or with his express consent, in the Republic of Albania or in any territory specified in the bilateral or multilateral agreements which have been acceded to by Republic of Albania; b) where the act is done privately and for non-commercial purposes, provided that it does not significantly prejudice the economic interests of the owner of the patent; c) where the act is done for purely experimental purposes or for scientific research; d) where the act consists of the extemporaneous preparation for individual cases, in a pharmacy or by a medical doctor, of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 34. Please explain whether or not your legislation provides for compulsory licensing. If so, please explain in detail the conditions under which a compulsory licence may be granted. In particular, please explain how your national legislation considers individual merits in the authorization of such use.
The granting of compulsory licences is regulated under Articles 39 and 40 of the Law on Industrial Property and Article 22 of the Law No. 8477 dated 22 April 1999 (General Provisions on Compulsory Licences): 1) On the request of any person who proves his ability to work the patented invention in the Republic of Albania, made after the expiration of a period of four years from the filing date of the application for the patent or three years from the grant of the patent, whichever is later, the Patent Office may grant a non-exclusive, non-voluntary licence if the patented invention is not worked or is insufficiently worked in the Republic of Albania. The grant of the non-voluntary licence shall be subject to the payment of equitable remuneration to the owner of the patent. 2) A non-voluntary licence shall not be granted if the Patent Office is convinced that circumstances exist which justify the non-working or insufficient working of the patented invention in the Republic of Albania. 3) In deciding whether to grant a non-voluntary licence, the Patent Office shall give both the owner of the patent and the person requesting the non-voluntary licence an adequate opportunity to present arguments. 4) Any non-voluntary licence shall be revoked when the circumstances which led to its granting cease to exist, taking into account the legitimate interests of the patent owner and of the licensee. The continued existence of these circumstances shall be reviewed upon request of the patent owner Where the national security or public safety so requires, the Prime Minister may authorize, even without the agreement of the owner of the patent or of the applicant, by notice published in the Official Journal, a government agency or a person designated in the said notice to make, use or sell an invention to which a patent or a patent application for a patent relates, subject to payment of equitable remuneration to the owner of the patent or the applicant. The decision of the Prime Minister may be subject of an appeal to the Court. 1) An applicant for a compulsory licence shall be required to prove that the requirements for a compulsory licence have been complied with, and further that: a) the patentee was unwilling to grant a voluntary licence to exploit the patent under appropriate conditions and within a reasonable period of time; b) he is able to exploit the invention to the required extent. 2) The scope and duration of a compulsory licence shall be established by the court, taking into account the purpose of the exploitation authorized by the compulsory licence; a compulsory licence may be granted with or without limitation. Unless relinquished or cancelled, a compulsory licence shall have effect until expiration of the term of validity fixed by the court or until the lapse of patent protection. Compulsory licences shall be recorded in the Patent Register. 3) The patentee shall receive adequate compensation for the compulsory licence, which shall be fixed, failing agreement between the parties, by the court. The compensation shall take into adequate account the economic value of the compulsory licence. In particular, it shall be commensurate with the royalty the holder of the compulsory licence would have paid on the basis of an exploitation contract concluded with patentee, taking into account the licensing conditions in the technical field of the invention. 4) The holder of a compulsory licence shall have the same rights as the patentee in regard to the maintenance of the patent and exercise of the rights deriving from protection. 5) A compulsory licence may not be assigned or transferred to any other person. Compulsory licences are non-exclusive and non-transferable, even in the form of sublicence, except with that part of the enterprise or goodwill which exploits such licence. The holder of the compulsory licence may not grant a licence of exploitation. 6) The holder of a compulsory licence may relinquish his compulsory licence at any time. If the holder does not begin exploitation within one year from the definitive grant of the compulsory licence, the patentee may claim modification or cancellation of the compulsory licence. 7) The patentee may request modification or cancellation of a compulsory licence if the circumstances on which it was based cease to exist and are unlikely to occur again. Modification or cancellation shall take a form that does not prejudice the legitimate interests of the holder of the compulsory licence.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 35. Please explain how your legislation explicitly ensures that a 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. In this context, how do you define "reasonable period of time". Please also explain how your legislation ensures that the use of a compulsory licence shall be authorised predominantly for the supply to the domestic market of the Member authorizing such use.
A compulsory licence will only be granted if the applicant has previously made efforts to obtain a contractual license from the patent holder on reasonable commercial terms and conditions and these efforts have not been successful within a reasonable period of time. The expression "reasonable period of time" has to be determined by the competent authority on a case-by-case basis, in accordance with the relevant circumstances. Concerning the use predominantly for the home market, as one of the conditions under which a compulsory license will be granted, Article 39 stipulates that it must be used within the territory of the Republic of Albania, which in conformity with Article 31(f) of the TRIPS Agreement.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 36. Please state if your legislation grants additional protection for innovations after the 20 years of patent protection has lapsed.
Article 28, paragraph 5 of the law provides for additional protection only for pharmaceutical products. It states that the term of a patent for invention related to pharmaceutical products can be extended over 20 years, but no more than 5 years.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 37. Please explain how your legislation provides for the enhanced patent protection of patents or patent applications pending on 1 January 1995.
Our Law on Industrial Property does not provide additional protection based on the date of filing of the patent application. All patents are granted in conformity with the standards of protection specified in the TRIPS Agreement and the Albanian laws on industrial property.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 38. Please explain how your legislation provides for the reversal of the burden of proof in relation to process patents.
Our law provides for such a principle according to Articles 41-42, where it is stated: 1) Subject to this Law, the performance of any act referred to in Article 27(1), (2) and (4) in Albania by a person other than the owner of the patent, and without the consent of the latter, in relation to a product or process falling within the scope of protection of the patent shall constitute an infringement of the patent. 2) Subject to this Law, the performance of any act referred to in Article 27(1), (2) and (4) in Albania by a person other than the applicant, and without the consent of the applicant, in relation to a product or process falling within the scope of provisional protection conferred on a published patent application under Article 20(3) shall constitute an infringement of that provisional protection. 1) The owner of a patent and the applicant for a patent shall have the right to institute proceedings in the Court against any person who has infringed or is infringing the patent or the provisional protection conferred on a published patent application. The owner of the patent and the applicant shall have the same rights against any person who has performed acts or is performing acts which make it likely that such infringement will occur ("imminent infringement"). The proceedings may not be instituted after five years from the act of infringement. 2) a) If the owner of the patent proves that an infringement has been committed or is being committed, the Court shall award damages and shall grant an injunction to prevent further infringement and any other remedy provided in the general law. b) If the owner of the patent proves imminent infringement, the Court shall grant an injunction to prevent infringement and any other remedy provided in the general law. 3) a) Unless the licence contract provides otherwise, any licensee may request the owner of the patent to institute Court proceedings for any infringement indicated by the licensee, who must specify the relief desired. b) Such licensee may, if he proves that the owner of the patent received the request but refuses or fails to institute the proceedings within three months from the receipt of the request, institute the proceedings in his own name. After notifying the owner of the patent of his intention, the owner of the patent shall have the right to join in the proceedings. c) Even before the end of the three-month period referred to in subparagraph (3)(b), the Court shall, on the request of the licensee, grant an appropriate injunction to prevent infringement or to prohibit its continuation, if the licensee proves that immediate action is necessary to avoid substantial damage. 4) Where the subject matter of the patent is a process for obtaining a product, the burden of establishing that a product was not made by the process shall be on the alleged infringer if either of the following conditions is fulfilled: a) the product is new; or b) a substantial likelihood exists that the product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used. Articles 12, 14 and 17 of the Civil Procedure Code also provide for the principle of the reversal of the burden of proof in a process patent litigation.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 39. Please describe how your legislation protects Topographies.
Law No. 8488, dated 13 May 1999 "On protection of topographies of integrated circuits" provides for protection as follows: Chapter I - Basic provisions; Chapter II - Subjects of protection; Chapter III - Common regulations for the procedure of protection; Chapter IV - Contents, terms and limitation of rights; Chapter V - Procedure for protection and registration; Chapter VI -Invalidation of the register; Chapter VII - Infringement of the right and compensation of the damage; Chapter VIII - Transitional and final provisions.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 40. Please explain what protection your national legislation grants to right holders against the unlawful importation, sale or distribution for commercial purposes of topographies including integrated circuits or other articles in which a topography is incorporated in accordance with Article 36 of the TRIPS Agreement.
Article 9 of our law is in full compliance with Article 36 of the TRIPS Agreement: The holder of the protected topography shall be granted exclusive rights of commercial exploitation, including the right to authorize or prohibited any of the following acts: - reproduction of the topography by any means or in any form; - importation, sale or other form of distribution of the topography or products that include integrated circuit incorporating the respective topography. The exclusive rights referred to in Paragraph 1 shall not extend to any concept, process, system or technical embodied in the topography other than the topography itself.
28/04/2003

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