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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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
See answer to question 26 immediately above.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
Section 10(3)(b) provides that a patent shall not be granted in respect of an invention if the commercial exploitation of the invention in Saint Kitts and Nevis would be prejudicial to human, animal or plant life or health. Section 10(3)(c) also excludes inventions that are prejudicial to the environment from patentability.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
Section 32 confers the right on the patent holder to exclusively exploit a patented invention. Section 32(2) provides that the meaning of "exploiting" a patented invention expressly includes importing and offering for sale. Section 40 consequently gives the patent owner the right to institute Court proceedings to seek remedy against any person who infringes his or her rights.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
Provided that the pharmaceutical and agricultural chemical products in question do not fall within any of the categories that are excluded from patentability, those products can be patent protected. The legislation does not contain an exhaustive list of products that can be patent protection.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
Section 8(2) provides that an invention may be or may relate to a process. Section 32(2)(b) provides that where a patent is granted in respect of a process, a person has exploited that patent where they make, import, offer for sale, use, sell or stock for sale or use the product obtained by means of that process.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
An application for a patent in Saint Kitts and Nevis must contain a request for the grant of a patent, a specification containing a description of the invention, a claim or claims and any drawings referred to in the description or any claim and an abstract containing the technical information [s. 16(2)]. Section 16(5) reproduces the condition in Art. 29 in that descriptions must disclose the invention in a manner which is sufficiently clear and complete to permit a person having ordinary skill in the art to carry out the invention, and shall, in particular, indicate at least one mode known to the applicant in which the invention can be carried out. Section 16(4) provides that where an applicant is not the inventor or a joint inventor, he or she must provide a written statement justifying his right to the patent.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
It is open to interested persons to apply for a non-voluntary licence under s. 37 of the Act. Applications for these licenses are available to interested persons four years after the date of the grant or three years from the filing date, where the patent owner has not exploited or has not sufficiently exploited the patented invention. Additionally, under s. 34, the Minister may decide that even without the agreement of the patent owner, a Government agency or a third party 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
Under s. 34, the Minister may decide that even without the agreement of the patent owner, a Government agency or a third party 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 legislation does not expressly state that each authorization should be considered on its individual merits.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
Section 34(4) provides 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. What is reasonable is not defined in the legislation but will be determined by the Court based on the circumstances of each matter. Section 34(9) mandates that 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 Kitts and Nevis.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 36. Please state if your legislation grants additional protection for innovations after the 20 years of patent protection has lapsed.
36. Please state if your legislation grants additional protection for innovations after the 20 years of patent protection has lapsed.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 37. Please explain how your legislation provides for the enhanced patent protection of patents or patent applications pending on 1st January 1995.
Prior to the present Patents Act, the 1906 Patents Act was in force. The present Act came into force in 2002 and so patents and pending patent applications in 1995 would have been treated according to the provisions of the 1906 Act. The earlier legislation failed to provide adequately for the protection of the product as opposed to the process. The patent had a maximum duration of fourteen years and more contemporary considerations such as the applicability of the Patent Cooperation Treaty were not taken account of. The prior Act failed to provide appropriately for the concept of novelty of invention and was overall very thin on procedural aspects. The various aspects and nuances of infringement were not comprehensively dealt with. All of these areas have since been remedied by the existing Patents Act.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 38. Please explain how your legislation provides for the reversal of the burden of proof in relation to process patents.
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) a 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 Unión Europea 39. Please describe how your legislation protects Topographies.
Under s. 6 of the Protection of Layout Designs (topographies) of Integrated Circuits Act, it is 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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis 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.
See answer to question 39 above. [Answer 39: Under s. 6 of the Protection of Layout Designs (topographies) of Integrated Circuits Act, it is 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.]
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 41. Please explain how your legislation provides for the derogation from Article 36 as specified in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable grounds to know when acquiring an integrated circuit or an article incorporating such an integrated circuit that it contains an unlawful topography.
Section 6(3)(d) of the Act provides that protection of layout-designs shall not extend to acts of infringement referred to in s. 6(2)(b) (expanded in the answer to question 39) where the person performing or ordering the performance of such an act did not know, and had no reasonable ground for knowing, when acquiring the integrated circuit or the article incorporating such integrated circuit, that it incorporated an unlawfully reproduced layout-design. Section 6(4) further provides that where such a person who has unknowingly infringed the right has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts referred to in that subsection only with respect to the stock on hand or ordered before he received the notice, and shall be liable to pay, to the right holder, a sum equivalent to such reasonable royalty as would be payable under a freely negotiated licence in respect of such layout-design.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 42. Please state the term of protection granted by your legislation to topographies.
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.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 43. Please explain whether or not your legislation grants a defined period of time for the protection of undisclosed information. If so, please give the time span.
There is currently no legislation on the protection of undisclosed information. Therefore no further responses can be given to questions 43 to 45.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 45. Please explain how your legislation defines data submitted to governments or governmental agencies.
There is currently no legislation on the protection of undisclosed information. Therefore no further responses can be given to questions 43 to 45.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 44. Please explain how your legislation defines undisclosed information.
There is currently no legislation on the protection of undisclosed information. Therefore no further responses can be given to questions 43 to 45.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 46. Please describe how your legislation provides for effective action against infringement of intellectual property rights.
Please refer to the responses to the Checklist on Issues of Enforcement.
10/08/2017

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