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 673 de 677   |   Número de documentos : 13533

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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 30. Article 61 also indicates that Members may provide for criminal procedures and penalties in cases of wilful infringement of other forms of intellectual property. Please describe any provisions of the laws of Saint Kitts and Nevis that provide for such procedures and remedies, citing to the relevant provisions of law or regulation.
Please refer to the responses to the Checklist on Issues of Enforcement.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 31. Please provide statistical information related to civil copyright, trademark, geographical indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement for 2000, including the number of cases filed; injunctions issued; infringing products seized; infringing equipment seized; cases resolved (including settlement); and the amount of damages awarded.
Please refer to the responses to the Checklist on Issues of Enforcement.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Estados Unidos de América 32. Please provide statistical information related to criminal enforcement in the area of copyright piracy and trademark infringement for 2000, including the number of raids, prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines were paid and whether the jail term was actually served or was suspended) and any other information establishing that the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
Please refer to the responses to the Checklist on Issues of Enforcement.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Japón 1. Please explain exceptions or exemptions of the National Treatment and Most-Favoured-Nation Treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in Articles 3 and 4 of the TRIPS Agreement.
In accordance with Art. 6 of the Berne Convention, Sections 145 and 146 of the Saint. Kitts and Nevis Copyright Act enable the Minister, by Order, to restrict or allow protection to works and nationals of any country specified therein. Section 145 allows the Minister to order that the provisions of the Copyright Act can apply on bases including nationality/ habitual residence, place of incorporation for bodies corporate, nature of the works and place of publication or performance. Section 146 confers a power on the Minister to restrict protection to countries that do not provide adequate protection to works of Saint Kitts and Nevis (SKN).
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Suiza 1. Please explain in detail how your legislation provides protection for geographical indications.
In keeping with Arts 22 to 24 of the TRIPS provisions on geographical indications, the Act provides protection • to an indication which identifies any goods as originating in the territory of a country or a region or locality in that territory where a given quality, reputation or other characteristic of the particular goods is essentially attributable to its geographical indication; (section 2) • to a geographical indication even if it has not been registered, however registration of a GI offers a higher level of protection; (section 3) • Against a geographical indication which gives a false representation to the public that the goods originate in another territory than the one it actually derives from. This provision shall be enforceable even if the GI is literally true as to the territory, region or locality in which the goods originate; (section 3) and • In respect of homonymous geographical indications for wines, protection shall be given to each indication. Where necessary, the Registrar shall determine practical conditions for differentiating homonymous indications from each other. The Registrar shall be guided in such cases by the need to ensure equitable treatment of the producers concerned and to ensure that consumers are not misled. The right of use of a geographical indication shall be restricted to a producer carrying on activity in the geographical area specified in the Register, in the course of trade and only in respect of the products specified in the Register where such products possess the quality, reputation or other characteristic set out in the Register. Under section 12 of the Act, the level of protection extends to the possibility of • invalidating the registration of a GI on the ground that the GI does not qualify for protection, • rectifying the registration of a GI on the ground that; • the geographical area specified in the registration does not correspond to the geographical indication; and • the indication of the products for which the geographical indication is used or the indication of the quality, reputation or other characteristic of such products is missing or unsatisfactory. Section 13 allows proceedings to prevent the unlawful use of geographical indications or to prevent a use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention. The Registrar also has power to refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in Saint Kitts and Nevis is of such a nature as to mislead the public as to the true place or origin of such goods (s. 14). The Registrar additionally has power to invalidate or refuse a mark that conflicts with a GI for wines and spirits.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Suiza 2. Does your legislation grant patent protection to all categories of products or are there any exceptions? If so, please explain in detail what kind of exceptions exist and how they comply with Article 27 of the TRIPS Agreement.
There are limitations on the enjoyment of patent rights. Section 10(1) of the Patents Act provides that anything which consists of the following characteristics shall be excluded from patentability (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 practiced on the human or animal body. Additionally, section 10 subsection 3 of the Patents Act provides that a patent shall not be granted in respect of an invention if the commercial exploitation of the invention in Saint Christopher and Nevis would be contrary to public order or morality. The section goes on to provide in subsection 4 that the refusal to grant such a patent would not be based solely on the ground that the commercial exploitation is prohibited by a law in force in Saint Christopher and Nevis. The language seems to imply that the basic threshold that would be looked at would be the law but leaves it open as to other considerations that might influence the decision to deny the patent. Section 10 subsection (1) paragraph (c) - cited earlier, provides that anything that consists of methods for the treatment of the human or animal body by surgery, therapy in addition to diagnostic methods that are practiced on either human or animal, shall be excluded from patentability. However, subsection 2 under the same section shows restricts the exclusion only to the methods and does not extend the bar to the products that might be used in any of those methods.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Suiza 3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the TRIPS Agreement, consider importation as "working" a patent (and therefore preclude compulsory licensing, if a product is being imported)?
Section 32(2)(a)(ii) of the Patents Act expressly provides that exploitation of a product patent includes importation of said product. Section 37 which deals with the grant of non-voluntary licenses provides that a third party can apply to the court for such a license where the patent has not been exploited, sufficiently exploited or imported into Saint Kitts and Nevis after four years after the grant or three years after filing, whichever later. Additionally, where the Minister is satisfied that the right holder's exploitation of the patent (which includes importation) is anti-competitive, s. 34 confers the right on him to grant a compulsory licence to a Government agency or a third party designated by the Government.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Suiza 4. Does your legislation make the granting of a compulsory license subject to all the conditions enumerated in Article 31 of the TRIPS Agreement? Please cite the relevant provisions of law.
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>
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Suiza 5. Does your legislation provide for the principle of the reversal of burden of proof in a process patent litigation? Please cite the relevant provisions of law.
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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Suiza 6. Please explain in detail if your legislation ensures that undisclosed test or other data submitted by an applicant to the responsible State agency in the procedure for market authorisation of a pharmaceutical or of an agricultural chemical product is protected against disclosure and against unfair commercial use by a competitor, for example by prohibiting a second applicant from relying on, or from referring to the original data of the first applicant, when applying subsequently for market authorisation for his own product. Does your legislation provide for exceptions to this? If yes, under what conditions would such exceptions apply? Does your legislation set a specific term of protection for undisclosed test or other data of the first applicant?
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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Suiza 7. Please indicate remedies provided by your legislation, which constitute effective deterrents to infringements of intellectual property rights.
Please refer to the responses to the Checklist on Issues of Enforcement.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Suiza 8. Please describe any new initiatives that are planned to improve enforcement of intellectual property rights in your country, particularly initiatives related to criminal enforcement.
Please refer to the responses to the Checklist on Issues of Enforcement.
10/08/2017
IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 1. Are the provisions of the TRIPS Agreement, as far as not implemented in national law, directly applicable in the legal system of Seychelles?
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.
10/08/2017

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