TABLE OF CONTENTS. Cook Islands. Tonga Vanuatu Solomon Islands

Transcription

1 PATENT SNAPSHOT

2 MONGOLIA CHINA NEPAL HONG KONG BANGLADESH PAKISTAN MYANMAR LAOS INDIA VIETNAM THAILAND SRI LANKA TABLE OF CONTENTS TAIWAN MACAU PHILIPPINES CAMBODIA MALAYSIA SINGAPORE BRUNEI PAPUA NEW GUINEA (U.S.) INDONESIA PACIFIC AUSTRALIA NEW ZEALAND COOK 2018 SPRUSON & FERGUSON PTY LTD. Spruson & Ferguson companies are members of the IPH Ltd group, an ownership group for the purposes of the Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys See for more information and members of the ownership group. DISCLAIMER The information contained in this document is provided for general informational and educational purposes only and does not constitute legal or professional advice. Spruson & Ferguson does not guarantee the accuracy or currency of the information contained in this document, despite making all efforts to ensure it is up-to-date and free from error at the time of inclusion. The content of this document is not a complete statement of the law on any subject. Professional advice should be sought before any course of action is pursued. Moreover, transmission of the information in this document is not intended to create, and the receipt does not constitute, an attorneyclient relationship between Spruson & Ferguson and the recipient. Australia 4 New Zealand 4 East Timor (Timor Leste) 6 Papua New Guinea 7 Palau 8 Guam 8 Nauru 11 Federated States of Micronesia 11 Marshall Islands 13 Kiribati 13 Tuvalu 15 Tokelau 15 Samoa 17 American Samoa 17 Niue 19 Cook Islands 19 Fiji 20 Tonga 21 Vanuatu 23 Solomon Islands 23

3 AUSTRALIA Capital: Canberra Population: 22,992,654 (est. 2016) Languages: English Area: 7,692,024 km2 Currency: Australian Dollar (AUD) Legal System: English common law NEW ZEALAND Capital: Wellington Population: 4,474,549 (July 2016 est.) Languages: English, Māori Area: 268,021 km2 Currency: New Zealand Dollar (NZD) Legal System: English common law 4 >> All litigation and prosecution in English >> Ranked 18th for having the best IP protection in the World Economic Forum s Global Competitiveness Report 2016/2017 Enforcement >> Enforceable jurisdiction. Potential for alternative dispute resolution in IP matters via arbitration, mediation, settlement Prosecution >> Patentable subject matter all subject matter is generally patentable except human beings and biological processes for their generation, so long as the subject matter results in an artificially created state of affairs in a field of economic endeavour. Mere schemes, plans or pure business methods have been found not to satisfy this test Other issues >> Pre-and post-grant opposition available C ISL Key issues >> Ranked 6th in the world for IP protection in the World Economic Forum s Global Competitiveness Report 2016/2017 Enforcement >> Litigation and prosecution may be in English or Māori. Potential for alternative dispute resolution in IP matters via arbitration, mediation, settlement Prosecution >> Patentable subject matter all subject matter patentable except diagnostic, therapeutic and surgical methods of treating humans as well as computer programs Other issues >> Pre-grant opposition and post-grant opposition currently available 5

4 EAST TIMOR (TIMOR LESTE) Capital: Dili Population: 1,261,072 (July 2016 est.) Languages: Tetum (official), Portuguese (official), Indonesian, English Area: 14,874 km2 Currency: United States Dollar (USD) Legal System: Civil law system based on the Portuguese model; note penal and civil law codes to replace the Indonesian codes were passed by Parliament and promulgated in 2009 and 2011, respectively PAPUA NEW GUINEA >> There are currently no patent laws in Timor Leste. However, it is understood that Indonesian patent laws will apply in Timor Leste in respect of infringement. >> IP owners can advertise a Cautionary Notice in East Timor s local newspapers to secure the earliest possible claim of the use of (U.S.) their IP (in anticipation of future establishment of IP Laws in the country). >> A Cautionary Notice in East Timor can be based on the notice of the registration of IP in their home country. Can be published in English and Portuguese languages. Capital: Port Moresby Population: 6,791,317 (July 2016 est.) 6 a discovery, scientific theory or mathematical method; a scheme, rule or method for doing business; performing purely mental acts; playing games; diagnostic, therapeutic and surgical methods, but not including any products for use in any such methods, for the treatment of humans or animals; and inventions, the commercial exploitation of which would be contrary to public order or morality; or seriously prejudice the environment Languages: English, TokPisin (Pidgin), and HiriMotu (the lingua franca of the Papuan region) Area: 462,840 km2 Currency: Kina (PGK) Legal System: English common law (up to the date of independence, 16 September 1975); PNG customary law >> All litigation and prosecution in English >> Applicant may rely on corresponding granted priority application, search/examination in the International Phase, a granted foreign patent (e.g. US, EP, AU, NZ, CA or GB); or request Substantive Examination (examined by IP Australia applying the PNG Patents and Industrial Designs Act) >> Amendments allowed any time before grant with payment of >> Relatively new and developing patent system There are currently no patent laws in Timor Leste. However, it is understood that Indonesian patent laws will apply in Timor Leste in respect of infringement. fee Enforcement >> Infringement remedies damages, an account of profits and injunctions >> Voluntary Divisional applications possible Prosecution >> Papua New Guinea accepts direct patent filings as well as applications filed via the PCT National Phase Entry system >> Patent Term Extensions not available >> Parallel importation available >> Foreign filing license not required >> Pharmaceutical Data Exclusivity Laws not available >> National phase entry deadline for PCT applications in Papua New Guinea: 31 months >> The Patents Act expressly excludes from patentability: COOK Other issues >> Pre-grant opposition available 7

5 Capital: Hagatna (Agana) Population: 162,742 (July 2016 est.) Languages: English, Filipino, Chamorro Area: 544 km2 Currency: United States Dollar (USD) >> The re-registration of a United States Patent is available in Guam. The patent will remain in force as long as the US Patent remains in force. (U.S.) Legal System: Common law modelled on US system; US federal laws apply PALAU Capital: Melekeok Population: 21,347 (July 2016 est.) Languages: Palauan, English, Filipino Area: 459 km2 Currency: United States Dollar (USD) Legal System: Mixed legal system of civil, common and customary law 8 >> There are no patent laws in Palau. The re-registration of a United States Patent is available in Guam. The patent will remain in force as long as the US Patent remains in force. 9

6 (U.S.) FEDERATED STATES OF MICRONESIA Capital: Palikir Population: 104,719 (July 2016 est.) Languages: English (official and common language) FEDERATED STATES OF MICRONESIA No formalised patent laws as yet NAURU Registry is not currently operational, however Nauru are working toward reviving the registry Area: 702 km2 >> No formalised patent laws as yet >> Micronesia has under FSM Code Title 35 a Copyright, Patents and Trademark law. However, to date only Chapter 1 copyrights have been enacted. Currency: United States Dollar (USD) Legal System: Mixed legal system of common and customary law NAURU Capital: No official capital; government offices in Yaren District Population: 9,591 (July 2016 est.) Languages: Nauruan, English Area: 21 km2 Currency: Australian Dollar (USD) >> A Nauruan patent application can be filed from: A pending Australian, US or UK application; or A granted Australian, US or UK patent, within three years of grant of that patent >> An application is published in the government Gazette, and if no opposition is filed within three months, the patent is granted. >> Once the Certificate of Registration has issued, the rights take effect from the date of Legal System: Mixed legal system of common law based on the EnglishCOOK the foreign patent relied upon and remain in force as long as that foreign patent is in model and customary law force. However, no patent will exceed a term of 16 years. >> Registry is not currently operational, however Nauru are working toward reviving the registry

7 MARSHALL Capital: Majuro Population: 73,376 (July 2016 est.) (U.S.) Languages: Marshallese, English Area: 181 km2 Currency: United States Dollar (USD) >> Marshall Islands is not member to any international convention on copyright, trademarks or patents. There are also no patent laws in the Marshall Islands. However, the Government is currently working on draft Legislation. Legal System: Mixed legal system of US and English common law, customary law, and local statutes KIRIBATI Capital: Tarawa Population: 106,925 (July 2016 est.) MARSHALL 12 There are also no patent laws in the Marshall Islands. However, the Government is currently working on draft Legislation. Languages: Kiribati, English Area: 811 km2 Currency: Australian Dollar (AUD), Kiribati Dollar Legal System: English common law supplemented by customary law >> The owner of a UK patent (including a validated EP (UK) patent) can apply for registration of the UK patent in Kiribati within 3 years of the date of issue in the UK. >> Once the certificate of registration has issued, the rights granted take effect from the date of the UK patent and will remain in force as long as the UK patent remains in force. 13

8 TUVALU Capital: Funafuti Population: 10,959 (July 2016 est.) Languages: Tuvaluan (official), English (official) Area: 26 km2 Currency: Tuvaluan Dollar, Australian Dollar (AUD) Legal System: Mixed legal system of English common law and local customary law Patent protection in New Zealand extends to Tokelau. >> Once the certificate of registration has issued, the rights granted take effect from the date of issue of the UK patent and will emain in force as long as the UK patent remains in force. >> The owner of a UK patent (including an EP (UK) patent) can apply for registration of the UK patent in the Tuvalu within 3 years of the date of grant of the UK patent. COOK Capital: None; each atoll has its own administrative center Population: 1,337 (est. 2014)*No updated population count on CIA fact book >> Patent protection in New Zealand extends to Tokelau. Languages: Tokelauan, English, Samoan Area: 12 km2 Currency: New Zealand Dollar (NZD) Legal System: Common law system of New Zealand 14 15

9 Capital: Apia Population: 198,926 (July 2016 est.) Languages: Samoan (official), English Area: 2,831 km2 >> Samoa is not a member of the PCT Treaty. Instead, the new legislation (Intellectual Property Act 2011) allows applicants to claim priority from applications filed in a member state of the Paris Convention provided the application is filed within 12 months. Samoa has signed the Paris Convention, and is a member as of 21 September >> Two types of patent applications can be sought in Samoa: Currency: Samoan Tala (WST) Samoa has signed the Paris Convention, and is a member as of 21 September Legal System: Mixed legal system of English common law and customary law; judicial review of legislative acts with respect to fundamental rights of the citizen A standard Samoan patent application (whether or not claiming informal Paris Convention priority); An innovation patent application (lower level of inventiveness similar to an Australian Innovation patent). >> A standard patent application is examined for novelty, inventive step and industrial applicability. The Registrar will rely on search and examination results from other countries to conduct the examination. >> An innovation patent application is examined for novelty and industrial applicability only. >> A standard patent has a term of 20 years. An innovation patent has a term of 7 years with no renewals payable. COOK Capital: Pago Pago Currency: United States Dollar (USD) Population: 54,194 (July 2016 est.) Legal System: Mixed legal system of US common law and customary law Languages: Samoan, English, Tongan Area: 199 km2 17

10 Capital: Alofi Population: 1,190 (July 2014 est.) >> Patent protection obtained in New Zealand extends to Niue. Languages: Niuean (official), English AND COOK Patent protection obtained in New Zealand extends to the Cook Islands Area: 21 km2 Currency: New Zealand Dollar (NZD) Legal System: English common law COOK Capital: Avarua COOK Population: 9,556 (July 2016 est.) Languages: English (official), Cook Islands Maori (Rarotongan) (official) >> No independent IP systems in place. >> Patent protection obtained in New Zealand extends to the Cook Islands. Area: 236 km2 Currency: New Zealand Dollar (NZD) / Cook Islands Dollar Legal System: Common law similar to New Zealand common law 18 19

11 FIJI Fijian government, providing provisional protection for six months. Capital: Suva Population: 915,303 (July 2016 est.) Languages: English (official), Fijian (official) Area: 18,274 km2 Currency: Fijian Dollar (FJD) Legal System: Common law system based on the English model >> Fiji Patents Act is outdated, dating back to 1978, with an amendment passed in Fiji signed the TRIPS agreement in 1996 and as of 2016; Fiji is working with WIPO to review its intellectual property legislation for better alignment with international obligations. >> All records of IP registrations in Fiji are kept in hard copy at the IP Registry, and all searches must be carried out manually at the Registry. >> Patent applications can be filed as an independent application, i.e. a national Fijian patent application. These applications are advertised for opposition purposes, examined in Australia and may take a long time to register. 20 Once the application is lodged, and if the documents are found to be in order, then a certificate is issued by the Within two months of the issue of the certificate, the applicant has to give notice in the prescribed form twice in the government Gazette, and twice in a newspaper published in Fiji. If a notice of opposition has not been filed within three months of the date of publication of the last of the publication notices, the patent is granted. The patent term is 14 years from the date of issue of the letters patent, however, if any foreign patents exist, the Fijian patent will expire when the first foreign patent expires. TONGA If there is no opposition (or any opposition fails), a certificate of registration will be issued. Once the certificate of registration has issued the rights granted take effect from the date of issue of the UK patent and will remain in force as long as the UK patent remains in force. Languages: English and Tongan Currency: Pa anga (TOP) COOK a prior United Kingdom registration (i.e. re-registration), which must be within 3 years of the grant of the UK patent. The UKbased patent will be valid for the term of the UK patent. These applications are registered more quickly than independent applications, are advertised and are registered as of right. An application for registration of a UK patent is firstly officially advertised. Population: 106,513 (July 2016 est.) Area: 747 km2 >> Patent applications can also be filed as an application based on Capital: Nuku alofa Legal System: English common law >> Two types of patent applications can be sought in Tonga: A standard Tongan patent application (whether or not claiming Paris Convention priority); A utility model application (whether or not claiming Paris Convention priority). >> Applications for registration are initially examined TONGA The maximum term is 20 years from the filing date for standard applications and 7 years for utility models. for compliance with formal requirements, leading to grant of a patent. The onus lies with the patentee to ensure the granted claims are novel, inventive and industrially applicable. >> The maximum term is 20 years from the filing date for standard applications and 7 years for utility models. 21

12 (U.S.) SOLOMON SOLOMON The owner of a UK patent can apply for registration of the UK patent in the Solomon Islands within 3 years of the date of grant of the UK patent. >> The owner of a UK patent (including a validated EP (UK) patent) can apply for registration of the UK patent in the Solomon Islands within 3 years of the date of grant of the UK patent. Capital: Honiara Population: 635,027 (July 2016 est.) Languages: Melanesian Pidgin, English Area: 28,896 km2 >> Once the certificate of registration has issued, the rights granted take effect Currency: Solomon Islands Dollar (SBD) from the date of issue of the UK patent and will remain in force as long as the UK patent remains in force Legal System: Mixed legal system of English common law and customary law VANUATU Capital: Port-Vila (on Efate) Population: 277,554 (July 2016 est.) Languages: Bislama, English, French Area: 12,189 km2 >> The first IP legislation was introduced into Vanuatu in 2000 and by 2011, laws covering patents, trade marks, designs, copyright, geographical indications and circuit layouts were passed. >> The Patents Act No. 2 of 2003 and Designs Act No. 3 of 2003 came into force on 8 February Patent applications are examined for compliance with form by the Registrar. The Registrar will inform the applicant if an amendment is required in writing. Once the application complies, the applicant may request a search. A search and/or examination must be requested, otherwise the application will be deemed abandoned. The applicant must also inform the Registrar within one month of requesting a search/ examination of any corresponding applications filed in another country. The Examiner s search will list relevant prior art documents, whilst examination will detail if the Examiner considers the invention novel, inventive and capable of industrial application. If any objections are overcome, the application will be granted. The grant of the patent will be published in the Gazette as soon as practicable and recorded in the Register. Currency: Vanuatu Vatu (VUV) Legal System: Mixed legal system of English COOKcommon law, French law, and 22 customary law 23

13