Examen de la législation d'application de l'Accord sur les ADPIC ‒ Recherche

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Aux termes de l'article 63:2 de l'Accord sur les ADPIC, les Membres doivent notifier les lois et réglementations qu'ils auront rendues exécutoires, et qui visent les questions faisant l'objet de l'Accord, au Conseil des ADPIC pour l'aider dans son examen du fonctionnement de l'Accord.

Cette page vous permet d'effectuer une recherche dans les questions et réponses des Membres au sujet des lois et réglementations notifiées. Vous pouvez consulter les résultats de la recherche à l'écran ou les télécharger afin de les imprimer au format Excel. Vous pouvez également télécharger des documents spécifiques.

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Page 503 de 677   |   Nombre de documents : 13533

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 30. 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.
The current Copyright Law provides civil, criminal and arbitration settlement remedies for copyright infringement. The stakeholders as well as the Copyright Office and the Law enforcement agencies ensure that the law is enforced. However data in this area is yet to be compiled.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 31. 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.
Raids are effected upon information by the Copyright Monitoring Team and in collaboration with the police. However the Copyright Office has put into place an authentication/anti piracy system of adhesive labels which are used to authenticate genuine as against pirated musical works. The Monitoring Unit of the Copyright Office regularly monitors the application of the authentication devices for musical works. Regular raids are also organized for literary and audiovisual works by the national anti piracy committees. Those convicted of infringement are often given fiscal sentence. However a court recently sentenced a Copyright infringer to six months imprisonment. No authentic statistics arc immediately available.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Japon 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.
There are no such exceptions or exemptions under the provisions of the Barbados Copyright Act, 1998-4. The text of the Act was notified to the World Trade Organization for examination by member states.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana Japon 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.
There are no exceptions nor exemptions from the National Treatment and Most Favoured Nation Treatment under the Ghana Copyright Law.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse 1. Please explain how your legislation implements Article 62.2 of the TRIPS Agreement. Please indicate how long it takes on average to register a trademark. Please cite the relevant provisions of your law.
Under the provisions of section 19 of the Trade Marks Act Cap. 319 of the Laws of Barbados, the grant and registration of the rights of the holder of the Mark are to be registered, once the requirements of the Act are satisfied. The relevant section reads: "After all requirements of this Act governing the registration of a mark have been complied with in the case of an application, the applicant is entitled, on payment of the prescribed fee, to have the mark registered under this Act." Provided that the application is in order in all respects, and there are no oppositions to the application, a trademark is registered, on average, approximately seven (7) months after the date of receipt of the application, inclusive of publication in the Official Gazette of the mark. Both the Trade Marks Act and the Trade Marks (Amendment) Act 2001, have been notified to the World Trade Organization.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse 2. Does your legislation grant patent protection for inventions relating to products and processes in all fields of technology? Are there any exceptions? If so, please explain what these exceptions are and how they comply with Article 27 of the TRIPS Agreement.
The Patents Act 2001 does not grant patent protection in all technological fields. For instance, the protection of plant varieties as contemplated in Article 27.3 is not considered under the Patents Act, but instead under the provisions of the Protection of New Plant Varieties Act 2001. Section 11 of the Patents Act provides that: "(1) Whether or not they constitute an invention within the meaning of this Act, the following are not patentable under this Act, namely, (a) discoveries, scientific theories and mathematical methods; (b) schemes, rules or methods for (i) the carrying on of business; (ii) the performing of acts of a mental nature only; or (iii) the playing of games. (c) methods for treatment of human beings or animals by surgery or therapy; (d) diagnostic methods practised on human beings or animals; (e) plant varieties, animal varieties and essentially biological processed for the production of plants other than microbiological processes and the products of those processes; or (f) an invention, the commercial exploitation of which would be contrary to public order or morality or which is prejudicial to human or animal health or to plant life or the environment. (2) Paragraphs (c) and (d) of subsection (1) do not extend to products invented for use in the methods referred to in those paragraphs." The exceptions contained in paragraphs (a) and (b) do not fall within the definition of patentable development as set out in Article 27.1 of the TRIPS Agreement. Paragraphs (c) to (f) were drafted in accordance with the provisions of Article 27.3 of the TRIPS Agreement. The Patents Act 2001 has been notified to the World Trade Organization.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse Follow-up question: Please explain whether your legislation provides for other exceptions to patent protection besides the ones mentioned in your answer.
No, as perusal of the Act will confirm, section 11 is the only section in the Patents Act, 2001-18 which sets out the exceptions to patent protection in Barbados. New plant varieties are not patentable but are protected by sui generis legislation in the form of the Protection of New Plant Varieties Act, 2001-17.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse 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)?
No. Please refer to our answer to question 4.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse Follow-up question: In your answer you mention that importation is not considered as "working" a patent. Please indicate whether, in Barbados, a compulsory licence on the grounds of non-working can be issued even if the product is being imported. If this should be the case, please explain how this complies with the obligation of Article 27.1, providing that patent rights shall be enjoyable without discrimination as to whether products are being imported or locally produced.
It should be pointed out that the earlier response to question 3 merely answered the specific question posed by Switzerland regarding whether the Barbados Patents Act, 2001-18 expressly addressed the issue as to whether importation of a patented product is "working" a patent for compulsory licensing purposes. Based on the terminology employed in our Act, importation of a patented product is not considered to be "working" a patent. Rather, it is included in the notion of "exploitation" of a patent. By way of clarification, attention is drawn to the fact that the Barbados Patents Act, 2001-18 employs the wide term "exploitation" in sections 49 and 50. The concept "exploitation" is wide enough to encompass both the notion of the local “working” of the patented process as well as the "importation" of the patented product into Barbados. See for example section 50(1) of the Patents Act, 2001-18 which enables an interested person to apply to the High Court for the grant of a non-voluntary licence under a patent on the ground that the patented invention is not "exploited" or is "insufficiently exploited" by working the invention locally or by importation in Barbados. In accordance with Article 31 of TRIPS, section 49 of the Patents Act, 2001-18 permits a non-voluntary licence to be issued in the public interest in the following two (2) situations, either (i) in cases where the invention is not being "exploited" in Barbados and such "exploitation" is in the opinion of the Minister necessary in the public interest and (ii) in cases where the manner of "exploitation" by the patent holder or his licensee has been determined by the High Court to be anti-competitive. In these cases, the term "exploitation" covers both the notion of the local "working" of the patented process as well as the "importation" of the patented product into Barbados and consequently is in conformity with the obligation of Article 27.1, providing that patent rights shall be enjoyable without discrimination as to whether products are being imported or not.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse 4. Does your legislation make the granting of a compulsory licence subject to all the conditions enumerated in Article 31 of the TRIPS Agreement? Please cite the relevant provisions of law.
The Patent Act 2001 makes provision in section 49 for the issuing of compulsory licences in accordance with Article 31 as follows: "(1) Where: (a) the exploitation within Barbados of an invention protected by patent is, in the opinion of the Minister, necessary (i) in the interests of national security; (ii) in the interests of national health; (iii) in the interests of national nutrition; (iv) in the interests of the development of an essential sector of the economy of Barbados; or (v) for other public interests; (b) the High Court has determined that the manner of exploitation by the owner of a patent or his licensee is anti-competitive, the Minister may, without the consent of the owner of patent, but subject to the payment of a reasonable amount for the exploitation, authorize by order the exploitation of the invention in Barbados by the Crown, by a government agency or by any person named in the order." The section goes on to set out in exact detail the process by which such authorization will be made, and these provisions are similar to the provisions of Article 31 in terms of the payment of the "reasonable amount" the minister is to take into account the economic value of the patent and the need to correct anti competitive practices. As a safeguard to the owner's interests, any request to the Minister for a grant of a compulsory licence must be accompanied by evidence that a request for a contractual licence was made to the owner, but the requesting party is unable to obtain the licence on reasonable commercial terms and in a reasonable time. The jurisdiction for the review of the grant of the licence is vested in the High Court. All other provisions are in accordance with Article 31 in full. This Act has been notified to the World Trade Organization.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse 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.
There is no reversal of the burden of proof before the High Court under these circumstances.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse Follow-up question: In your answer you mention that your legislation does not provide for the possibility of the judicial authority to order the reversal of the burden of proof in a process patent litigation. Please explain how this complies with the obligation of Article 34 of the TRIPS Agreement.
It is our understanding that Article 34.1 of the TRIPS Agreement specifies cases in which contrary to normal evidentiary rules, the judicial authorities may require the alleged infringer to show that he did not infringe the process patent. Although the Patents Act does not appear to address the reversal of the burden of proof explicitly, please see section 60 of the Patents Act, 2001-18 for further assistance regarding the powers of the High Court in infringement proceedings.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse 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 a similar 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?
Section 4(1)(b)(ii) of the Protection Against Unfair Competition Act 1998 makes explicit provision for the definition of acts of this nature as "unfair competition". The relevant section reads: "The following acts are acts of unfair competition: (b) any act or other conduct that consists of or results in an unfair commercial use: (i) by a competent authority, or (ii) by other persons as a result of the improper disclosure by a competent authority, of secret tests or other data concerning pharmaceutical or agricultural chemical products that utilise new chemical entities the origination of which requires considerable effort and which data have been submitted to the competent authority for the purpose of obtaining approval for the marketing of such products." The Act does not make any exceptions to this rule, nor does the Act contain any specified duration of protection for undisclosed test or other data.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse Follow-up question: Referring to the issue of unfair commercial use of data submitted by an applicant to the responsible State Agency in the procedure for market authorization of a pharmaceutical or of an agricultural chemical product, please specify whether the responsible State Agency will require the same amount of data from a second applicant requesting market authorization for a similar or identical product as from the first applicant.
The Barbados Protection Against Unfair Competition Act, 1998-20 does not address this situation specifically. However, on the principle of equality before the law, it is standard administrative practice in Barbados for common standards to be applied to the processing of applications and each successive applicant would be required to produce to the responsible State Agency the same amount of data or information as was required from the prior applicant. In other words, each application will be treated on an equal basis, and successive applicants would be required to produce the same amount of data as was required from the first applicant.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse 7. Please indicate remedies provided by your legislation which constitute effective deterrents to infringements of intellectual property rights.
Please see our responses to the Checklist of Issues on Enforcement for answers in relation to the Trade Marks Act and the Copyright Act respectively. In terms of the Protection Against Unfair Competition Act, section 4(3) provides that: "Any officer of the competent authority who contravenes subsection (2) is guilty of an offence and is liable on summary conviction to a fine of $10,000.00 or to imprisonment for a term of 2 years or to both such fine and imprisonment." Civil remedies are dealt with in detail in the responses to the Checklist of Issues on Enforcement.
09/02/2004
IP/Q/BRB/1, IP/Q2/BRB/1, IP/Q3/BRB/1, IP/Q4/BRB/1 Barbade Suisse 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.
In the past year, the Government of Barbados has undertaken several training programmes to sensitise its enforcement personnel on matters concerning the enforcement of intellectual property laws. In particular, assistance from the World Intellectual Property Organization (WIPO), the World Customs Organization (WCO) and the Business Software Alliance (BSA), has made it possible for local officials to receive training in product identification, evidence gathering, drafting of criminal charges, search and seizure techniques, and future trends in intellectual property law and enforcement. This training has enabled the Customs Department and the Royal Barbados Police Force to detect, investigate, and prosecute several cases relating to infringement of intellectual property rights. In addition, a programme of public education has made the populace of Barbados more aware of the need to respect and protect these rights, as well as knowledge of basic notions of intellectual property that is intended to allow the ordinary citizen to be able to inform the police and customs officials of the existence of infringing articles within the community. Future programmes include the intensive training of local enforcement officers by way of study visits to other forces and departments, along with the development of closer ties with non governmental organizations and Government departments in other countries with more experience of detection and prevention of organised infringement and piracy. The public education will be continued indefinitely, in order to further enlighten the population about intellectual property.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana Suisse 1. Please explain in detail how your legislation provides protection for geographical indications.
Draft Law No law currently exists for the protection of geographical indications. In order to comply with the provisions of the TRIPS Agreement a draft Geographical Indications Act is soon to be put before Parliament. The draft Act incorporates the requirements of Article 22 to 24 of the TRIPS Agreement. The draft Act defines a geographical indication as "an indication which identifies a good as originating in the territory of a country or region or locality in that territory, where a given quality reputation or other characteristic of the good is essentially attributable to its geographical origin". Natural or handicraft products are covered by the definition of Geographical Indications in the Act. Examples would be textiles, fruits, wines, coffee, wood and tea. The definition of a geographical indication is in conformity with the definition of a geographical indication in Article 22.1 of the TRIPS Agreement. The draft Geographical Indications Act is divided into four parts. These are: 1. Protection of Geographical Indications; 2. Registration of Geographical Indications; 3. Special Provisions Concerning Marks; 4. Regulations and Interpretations. Section 1 of the draft Geographical Indication Act states explicitly that civil proceedings may be instituted to prevent unlawful use of geographical indications. Subsections 1(a) and (b) of section 1 are in line with Articles 22.2(a) and (b) and Article 23.1 of the TRIPS Agreement enabling parties to prevent the use of indications in a manner which would mislead the public and would also be contrary to honest business practices within the meaning of Articles 101 of the Paris Convention or with regard to geographical indications identifying wines and spirits not originating in the place indicated in the geographical indication in question. Section 1 makes it clear that the court may in addition to issuing injunctions to prevent such unlawful use, award or grant any other civil remedies that maybe appropriate.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana Suisse 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.
The Patent Law 1992 grant patents protection relating to products and processes in all fields of technology. The exceptions to patentability are stated in section 1(3) of the law. The exceptions are: (a) Discoveries, scientific and mathematical theories, (b) plant or animal varieties or essentially biological processes for the production of plants or animals, other than microbiological processes and the products of such processes; (c) schemes, rules or methods for doing business, performing purely mental acts or playing games; (d) methods of treatment of the human or animal body by surgery or therapy as well as diagnostic methods; this provision shall not apply to products for use in any of these methods; (e) mere presentation of information; (f) computer programmes. The new draft Patent Act also grants protection for inventions relation to products and process in all fields of technology. However the exceptions are: (a) Discoveries, scientific theories and mathematical methods; (b) schemes, rules or methods of doing business, performing purely mental acts or playing games; (c) methods for treatment of human or animal body by surgery or therapy, as well as diagnostic methods practised on the human or animal body; this provision shall not apply to products for use in any of those methods; (d) inventions, the prevention within Ghana of the commercial exploitation of which is necessary to protect public order or morality which includes: i. the protection of human, animal or plant life or health; or ii. the avoidance of serious prejudice to the environment; if the exclusion is not made because the exploitation is prohibited; (e) plants and animals other than the micro organisms; (f) biological processes for the protection of plants or animals other than non biological and micro biological processes; (g) plant varieties. Article 27 of the TRIPS Agreement set out three exceptions to the basic rule on patentability. These are inventions contrary to public or morality, diagnostic, therapeutic and surgical methods for the treatment of humans or animals and plants and animals other than micro organisms and essentially biological processes for the production of plant or animals other than non biological and microbiological processes. Discoveries for example have been excluded essentially because the person who makes a discovery has not create anything. Also schemes, rules or methods for doing business concerns instructions to the human mind which cannot be patented. In line with Article 27.3(b) a sui generis system has been provided for the protection of plant varieties.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana Suisse 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)?
The Patent Law 1992 under Section 45(1) allows compulsory licensing for non working of the patent. The definition of working has been provided under Section 31(5) of the law as follows: "A patented inventions is worked if the patented product is made or if the patented process is used in Ghana, by any effective and serious establishment and on a scale which is reasonable in the circumstances, but importation shall not constitute working." The draft patent Act also contain provisions on compulsory licensing and government use without the authorization of the right holder but are subject to conditions aimed at protecting the legitimate interests of the right holder. These conditions in the draft law aimed at protecting the legitimate interests of the right holder are in full compliance with Article 31 of the TRIPS Agreement. The conditions also comply with Article 27.1 of the TRIPS Agreement which require technology whether products are imported or locally produced. The provisions of Section 14(1) of the draft Patent Act explicitly state that the court may issue non voluntary licence if the court is satisfied the patented invention is not exploited or is insufficiently exploited, by working the inventions locally or by importation in Ghana.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana Suisse 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 Patent law 1992 contain provisions on compulsory licensing. The provisions however do not satisfy all the conditions enumerated in Article 31. The draft Patent Act also has provisions for granting compulsory licences which are in full compliance with Article 31 of the TRIPS Agreement. Sections 13 and 14 of the draft Patent Act contain conditions under which compulsory licences and government use or person thereby provisions of law.
09/02/2004

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