Under section 3 of the Patents Bill 2001, the terms novelty or new, inventiveness and industrial application are defined as follows: "(2) An invention is new if it is not anticipated by prior art. (3) Prior art shall consist of everything disclosed to the public, anywhere in the world, by publication in tangible form or by oral disclosure, by use or in any other way, prior to the filing or, where appropriate, the priority date, of the application claiming the invention. (5) An invention shall be considered as involving an inventive step if, having regard to the prior art relevant to the application claiming the invention and as defined in subsection (2)(b), it would not have been obvious to a person having ordinary skill in the art. (6) 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; it shall cover, in particular, handicraft, agriculture, fishery and services."

The Bill does provide for exclusions in terms of the rights enjoyed by the owner of a patent. This is dealt with in section 11(4), which states as follows: "The rights under the patent shall not extend: (a) to acts in respect of articles which have been put on the market in Antigua and Barbuda by the owner of the patent or with his consent; or (b) to the use of articles on aircraft, land vehicles or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of Antigua and Barbuda; or (c) to acts done only for experimental purposes relating to a patented invention; or (d) to acts performed by any person who in good faith, before the filing or, where priority is claimed, the priority date of the application on which the patent is granted and in Antigua and Barbuda, was using the invention or was making effective and serious preparations for such use."

Questions 25-28 are dealt with in section 2 where it lists the inventions that are excluded from protection under this Act in subsection 2. This is in accordance with Article 27(3)(b) of the TRIPS Agreement, which allows for the exclusion of plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. In accordance with Article 27(2), the inventions, the prevention of the commercial exploitation of which is necessary to protect public order or morality are excluded provided that such exclusion is not made merely because law prohibits the exploitation. The rationale behind these exceptions is to ensure that inventions that are dangerous to human, animal or plant life or health or would be seriously prejudicial to the environment are not protected, and inventions or in some cases discoveries that are essential to the protection and preservation life are not to be patented.

Please see the answer to question 25.

Please see the answer to question 25.

Please see the answer to question 25.

The owner of a patent has rights conferred on him as a result of the grant and these rights are listed in section 11 of the Bill. Included in these rights is the right to bring an action before the High Court for any infringement as defined in the Bill. According to section 11(2)(a)(i), the making, importing, offering for sale, and the use of the patented product without the patent owner's permission is an infringement.

Section 11(2)(a) provides protection for patent products. It recognizes that exploitation of the patent product by selling, making, importing, offering for sale the patent product without the patent owner's consent is a violation of his rights and this is actionable in Court. This right is subject to sections 13 and 14, which deal with non-voluntary licences and permitted exploitation.

Section 11(2)(b)(ii) gives that protection to the product obtained directly by the patented process.

In addition to the requirement for sufficient disclosure, the Bill does provide for other additional conditions that must be satisfied before the application is processed. In accordance with Article 29.2 of the TRIPS Agreement, section 8 of the Act gives the Registrar the right to request the date and number of any application for a patent filed by the applicant abroad relating to the same or essentially the same invention as that claimed in the application filed with the Office. Also, at the request of the Registrar, the applicant shall furnish the relevant documents relating to one of the foreign applications referred to in section 8(1) as listed in section 8(2). International applications for patents designating Antigua and Barbuda once it has acceded to the Patent Cooperation Treaty (PCT) would not be considered foreign applications in the meaning of subsection 2. The documents, which include a copy of the patent granted on the basis of the foreign application, would prove very helpful to the Registrar if examination is carried out in accordance with section 9(4) and(5) of the Bill.

There are limits imposed on the rights conferred on the right holder. The limits are dealt with in section 11(4) of the Patent Bill: "(1) The rights under the patent shall not extend: (a) to acts in respect of articles which have been put on the market in Antigua and Barbuda by the owner of the patent or with his consent; or (b) to the use of articles on aircraft, land vehicles or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of Antigua and Barbuda; or (c) to acts done only for experimental purposes relating to a patented invention; or (d) to acts performed by any person who in good faith, before the filing or, where priority is claimed, the priority date of the application on which the patent is granted and in Antigua and Barbuda, was using the invention or was making effective and serious preparations for such use."

The Bill does provide for compulsory licences. Section 14 provides for non-voluntary licences and the conditions under which they may be granted: "(1) On request, made to the Registrar after the expiration of a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last, the Registrar may issue a non-voluntary licence if he is satisfied that the patented invention is not exploited or is insufficiently exploited, by working the invention locally or by importation, in Antigua and Barbuda." However, according to subsection 2, if the patent owner can satisfy the Registrar that circumstances exist that justify the non-exploitation or insufficient exploitation of the patented invention in Antigua and Barbuda, such a licence will not be issued. Section 14(9) provides that subsections 2-10 of section 13 shall apply mutatis mutandis. This means that references to the Minister's authorization would have to read as references to the non-voluntary licence issued or requested to be issued by the Registrar. For instance, section 12(3) states that authorization can only be given if efforts have been made to obtain a contractual licence and have failed. This requirement is waived in cases of emergency or other circumstances of extreme urgency. In such cases, the owner of the patent is, however, to be informed as soon as reasonably possible. Subsections 2-10 of section 13 point out the various circumstances that would perhaps justify the issuance of a compulsory licence and the conditions attached to each licence. Therefore, before the authorization is given, the individual merits must be considered.

Section 13(3) states that proof of the attempt to obtain a licence on reasonable commercial terms and conditions and within a reasonable time from the owner of the patent must be given with the request for a non-voluntary licence. Reasonable time can perhaps be viewed in reference to section 14(1) which gives the Registrar the right to issue a non-voluntary licence after three or four years during which time the patent has not been exploited or has not been sufficiently exploited. The Bill gives the Registrar, or any other person so appointed, that discretion. According to section 14(4) of the Bill, the beneficiary of the licence has the right to exploit the patent only in the domestic market in accordance with the terms and conditions as stated in the licence.

The Bill does not grant additional protection for innovations after the 20 year term of protection has expired.

There is no specific provision that at present provides for the enhanced patent protection of patent application pending on 1 January 1995. The Minister, however, has the right under section 37(6) to make any further transitional or saving provisions that appear to him to be necessary or desirable. This section provides for the continued protection of patents already registered in the Intellectual Property Office for the unexpired portion of the protection.

According to section 34(4) of the Bill: "(3) For the purposes of proceedings, other than criminal proceedings, in respect of the violation of the rights of the owner of the patent referred to in subsections (1) and (2), where the subject-matter of the patent is a process for obtaining a product, the burden of establishing that an identical product was not made by the process shall be on the alleged infringer if: (a) the product was 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 the reasonable efforts to determine the process actually used."

Topographies are protected from infringement through registration under the Integrated Circuit Topography Bill, once they comply with the following conditions within section 4: "(1) Subject to subsection (4), a topography is registrable under this Act only if the following conditions are met: (a) the topography is original; (b) an application for registration of the topography, containing the information and material required by subsection 16(2) and accompanied by the fee required by subsection 16(3), is filed with the Registrar before the topography is first commercially exploited or within two years thereafter; and (c) the creator of the topography is, at the time of its creation or on the filing date of the application: (i) a national of Antigua or an individual or legal entity that has in Antigua a real and effective establishment for the creation of topographies or the manufacture of integrated circuit products; (ii) a national of a country that, either directly or through its membership in an intergovernmental organization, affords protection for topographies in accordance with a convention or treaty to which that country or intergovernmental organization and Antigua and Barbuda are contracting parties, or an individual or legal entity that has in such a country or in the territory of a member state of such an intergovernmental organization an establishment of the kind referred to in subparagraph (i); (iii) a national of a country or of a member state of an intergovernmental organization that the Minister has certified by notice published in the Gazette to be a country or intergovernmental organization that confers protection on nationals of Antigua and Barbuda or legal entities that have an establishment of the kind referred to in subparagraph (i) that is substantially equal to the protection conferred by this Act, or an individual or legal entity that has in such a country or in the territory of a member state of such an intergovernmental organization an establishment of that kind; or (3) Where a topography consists of a combination of elements or interconnections that are commonplace among creators of topographies or manufacturers of integrated circuit products, the topography shall be considered to be original only if the combination, considered as a whole, meets the conditions referred to in subsection (2). (4) A topography that is not registrable by reason that the condition set out in paragraph (1)(c) cannot be met is registrable if the topography is first commercially exploited in Antigua and Barbuda."

According to section 6(1) of the Bill: "The exclusive right in a registered topography is infringed by any person who does any act referred to in section 3(2) without the consent of the owner of the registered topography." These acts include the unlawful importation, sale or distribution for commercial purposes of topographies, or any substantial part of it, or an integrated circuit product that incorporates the topography, or any substantial part of it. The remedies for such infringements are found in section 8, where action may be brought before the Court. Under section 9, the Court has the right to make orders as deemed necessary, according to the circumstances: "… including orders providing for relief by way of injunction, the payment of royalties and the recovery of damages or profits, for punitive damages, and for the disposal of any infringing integrated circuit product or any article of which an infringing integrated circuit product forms a part."

Section 10 provides for innocent infringement where once the defendant can prove that, at the time he acquired the integrated circuit product, he did not know and had no reasonable grounds to believe that the integrated circuit product was manufactured and sold for the first time without the consent of the owner of the registered topography, he will not be liable for royalties, damages, profits or punitive damages in respect of any dealings with the integrated circuit product prior to the time when he had actual knowledge that the product was manufactured and sold for the first time without the consent of the owner. However, according to section 10(b), the defendant does have the right to dispose of any inventory of the integrated circuit product or of the article of which the integrated circuit product forms a part that was acquired before he had that knowledge, subject to the condition that he pays a reasonable royalty in respect of that inventory in such amount and at such time as the court may determine.

The term of protection as stated in section 5 is as follows: "(a) The exclusive right in a registered topography shall subsist for a period commencing on the filing date of the application for registration of the topography; and (b) terminating at the end of the tenth calendar year after the earlier of the calendar year in which the topography is first commercially exploited and the calendar year of the filing date of the application."