Ministry of Justice and Legal Affairs
Zimbabwe
- Section 1: General
- Section 2: Private and/or non-commercial use
- Section 3: Experimental use and/or scientific research
- Section 4: Preparation of medicines
- Section 5: Prior use
- Section 6: Use of articles on foreign vessels, aircrafts and land vehicles
- Section 7: Acts for obtaining regulatory approval from authorities
- Section 8: Exhaustion of patent rights
- Section 9: Compulsory licenses and/or government use
- Section 10: Exceptions and limitations related to farmers' and/or breeders' use of patented inventions
- Section 11: Other Exceptions and Limitations
Section 1. General
1. As background for the exceptions and limitations to patents investigated in this questionnaire, what is the legal standard used to determine whether an invention is patentable? If the standard for patentability includes provisions that vary according to the technology involved, please include examples of how the standard has been interpreted, if available. Please indicate the source of law (statutory and-or case law) by providing the relevant provisions and/or a brief summary of the relevant decisions.
Section 82 Subsection 3(9) of the Schedule to the Patents Act 26:03 as read with Section 13 of the Patents Act 26:03.
Correspondingly, please list exclusions from patentability that exist in your law. Furthermore, please provide the source of those exclusions from patentability if different from the source of the standard of patentability, and provide any available case law or interpretive decisions specific to the exclusions.
(a) diagnostic, therapeutic or surgical methods for treatment of human beings or animals;
(b) plants and animals, other than microorganisms;
(c) essentially biological processes for the production of plantsn or animals other than microbiological processes (Section 2A of Patents Act 26:03)
2. As background for the exceptions and limitations to patents investigated in this questionnaire, what exclusive rights are granted with a patent? Please provide the relevant provision in the statutory or case law. In addition, if publication of a patent application accords exclusive rights to the patent applicant, what are those rights?
In terms of Section 24 of the Patents Act 26:03, the granting of a patent confers positive rights to the patent holder to have full power, sole privilege and authority to make, use, offer for sale products of the invention. (Provision brought into force by Act Number 9 of 2002)
3. Which exceptions and limitations does the applicable law provide in respect to patent rights (please indicate the applicable exceptions/limitations):
Private and/or non-commercial use;
Experimental use and/or scientific research;
Use of articles on foreign vessels, aircrafts and land vehicles;
Exhaustion of patent rights;
Compulsory licensing and/or government use.
Section 2: Private and/or non-commercial use
4. If the exception is contained in statutory law, please provide the relevant provision(s):
Section 31(6)(a) of the Patents Act (26:03).
5. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
There is no definite case as of this date.
6. (a) What are the public policy objectives for providing the exception?
To allow users to make, construct, or use patented products for private or non-commercial use.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
No available information.
7. If the applicable law defines the concepts "non-commercial", "commercial" and/or "private", please provide those definitions by citing legal provision(s) and/or decision(s):
No detinitions provided for these concepts.
8. If there are any other criteria provided in the applicable law to be applied in determining the scope of the exception, please provide those criteria by citing legal provision(s) and/or decision(s):
Legislation is not clear on the scope of the exception.
9. Is the applicable legal framework of the exception considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
The Act is not very clear on this aspect.
10. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
No challenges have been encountered to date.
Section 3: Experimental use and/or scientific research
11. If the exception is contained in statutory law, please provide the relevant provision(s):
Section 24B of the Patents Act 26:03
12. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
There is no decided case as of this date.
13. (a) What are the public policy objectives for providing the exception?
To allow third parties access to test batches of patent products on patents about to expire for further research purposes.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
Relevant information from the Parliamentary debates leading up to the adoption of this provision could be located.
14. Does the applicable law make a distinction concerning the nature of the organization conducting the experimentation or research (for example, whether the organization is commercial or a not-for-profit entity)? Please explain:
No distinction is made.
15. If the applicable law defines the concepts "experimental use" and/or "scientific research", please provide those definitions by citing legal provision(s) and/or decision(s):
No definition is provided.
16. If the purpose of experimentation and/or research is relevant to the determination of the scope of the exception, please indicate what that purpose is:
Experimentation and/or research should aim to:
Act is silent on this part.
17. If any of the following criteria is relevant to the determination of the scope of the exception, please indicate:
Research and/or experimentation must be conducted on or relating to the patented invention ("research on")
Research and/or experimentation must be conducted with or using the patented invention ("research with")
Both of the above
Please explain by citing legal provision(s) and/or decision(s):
The Act is silent on this aspect.
18. If the commercial intention of the experimentation and/or research is relevant to the determination of the scope of the exception, please indicate whether the exception covers activities relating to:
A non-commercial purpose
19. If the applicable law makes a distinction between "commercial" and "non-commercial" purpose, please explain those terms by providing their definitions, and, if appropriate, examples. Please cite legal provision(s) and/or decision(s):
No definitions are provided.
20. If the applicable law provides for other criteria to be applied in determining the scope of the exception, please describe those criteria. Please illustrate your answer by citing legal provision(s) and/or decision(s):
[Note from the Secretariat: response not provided.]
21. Is the applicable legal framework of the exception considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
It is not adequate.
22. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
[Note from the Secretariat: response not provided.]
Section 4: Preparation of medicines
23.-30.
[Note from the Secretariat: the applicable law of Zimbabwe does not provide exceptions related to the preparation of medicines.]
Section 5: Prior use
31.-41.
[Note from the Secretariat: the applicable law of Zimbabwe does not provide exceptions related to prior use.]
Section 6: Use of articles on foreign vessels, aircrafts and land vehicles
42. If the exception is contained in statutory law, please provide the relevant provision(s):
Section 81 of the Patents Act (26:03)
43. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
No case law has been decided on this exception.
44.(a) What are the public policy objectives for providing the exception? Please explain:
Comply with international obligations (See Part XI of the Patents Act 26:03).
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
No date on the subject matter could be ascertained.
45. The exception applies in relation to:
Vessels
Aircrafts
Land Vehicles
46. In determining the scope of the exception, does the applicable law apply such terms as "temporarily" and/or "accidentally" or any other equivalent term in relation to the entry of foreign transportation means into the national territory? Please provide the definitions of those terms by citing legal provision(s) and/or decision(s):
The law does apply the terms "temporarily" and "accidentally" but does not give or provide definitions of the said terms.
47. Does the applicable law provide for any restrictions on the use of the patented product on the body of the foreign vessels, aircrafts, land vehicles and spacecraft for the exception to apply (for example, the devices to be used exclusively for the needs of the vessel, aircraft, land vehicle and/or spacecraft)? Please explain your answer by citing legal provision(s) and/or decision(s):
Yes, the law provides for restrictions under Sections 81(I)(a) to (b) of the Patents Act. The first section restricts usage of a patented product to on-board usage and only for actual needs only, and secondly, restriction may be limited to construcrtion or working of aircraft or land vehicle in question.
48.-50.
N/A
Section 7: Acts for obtaining regulatory approval from authorities
51.-59.
[Note from the Secretariat: the applicable law of Zimbabwe does not provide exceptions related to acts for obtaining regulatory approval from authorities.]
Section 8: Exhaustion of patent rights
60. Please indicate what type of exhaustion doctrine is applicable in your country in relation to patents:
Regional
International
Uncertain - these are not explicitly mentioned in the Act.
If the exception is contained in statutory law, please provide the relevant provision(s):
Section 24A of the Patents Act 26:03
If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
There is no case law.
61.(a) What are the public policy objectives for adopting the exhaustion regime specified above? Please explain:
It is cost effective measure designed for the benefit of the consumer of patent products.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
62. Does the applicable law permit the patentee to introduce restrictions on importation or other distribution of the patented product by means of express notice on the product that can override the exhaustion doctrine adopted in the country?
No
Please explain your answer by citing legal provision(s) and/or decision(s):
[Note from the Secretariat: response was not provided.]
63. Has the applicable exhaustion regime been considered adequate to meet the public policy objectives in your country? Please explain:
No, it is not adequate. This is why the government had to put in place other complementary exceptions, for example, compulsory licensing regime.
64. Which challenges, if any, have been encountered in relation to the practical implementation of the applicable exhaustion regime in your country? Please explain:
Challenges have been encountered with regard to counterfeit pharmaceutical products that are being imported into the country.
Section 9: Compulsory licenses and/or government use
Compulsory licenses
65. If the exception is contained in statutory law, please provide the relevant provision(s):
Sections 30A to 35 of the Patents Act 26:03
66. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
There is no case law.
67. What grounds for the grant of a compulsory license does the applicable law provide in respect to patents (please indicate the applicable grounds):
Non-working or insufficient working of the patented invention
Refusal to grant licenses on reasonable terms
Anti-competitive practices and/or unfair competition
Public health
National security
National emergency and/or extreme urgency
Dependent patents
Other, please specify: Section 31(6)(f) of the Patents Act 26:03
68.(a) What are the public policy objectives for providing compulsory licenses in your country? Please explain:
The public policy objectives are contained in Sections 30A to 35 of the Patents Act 26:03
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
69. If the applicable law provides for the grant of compulsory licenses on the ground of "non-working" or "insufficient working", please provide the definitions of those terms by citing legal provision(s) and/or decision(s):
Section 31(6)(a) of the Patents Act 26:03: If the patented invention, being an invention capable of being worked in Zimbabwe, is not being worked therein on a commercial scale and there is no satisfactory reason for such non-working.
70. Does the importation of a patented product or a product manufactured by a patented process constitute "working" of the patent? Please explain your answer by citing legal provision(s) and/or decision(s):
[Note from the Secretariat: response was not provided.]
71. In case of the grant of compulsory licenses on the grounds of non-working or insufficient working, does the applicable law provide for a certain time period to be respected before a compulsory license can be requested?
Yes
If yes, what is the time period?
Within 6 months - Section 31(I) of the Patents Act
72. In case of the grant of compulsory licenses on the grounds of non-working or insufficient working, does the applicable law provide that a compulsory license shall be refused if the patentee justifies his inaction by legitimate reasons?
Yes
If yes, what are "legitimate reasons"?
They are not explicit in the Act.
73. If the applicable law provides for the grant of compulsory licenses on the ground of refusal by the patentee to grant licenses on "reasonable terms and conditions" and within a "reasonable period of time", please provide the definitions given to those terms by citing legal provision(s) and/or decision(s):
The law does not define these terms.
74. If the applicable law provides for the grant of compulsory licenses on the ground of anti-competitive practices, please indicate which anti-competitive practices relating to patents may lead to the grant of compulsory licenses by citing legal provision(s) and/or decision(s):
The Act does not outline the list of anti-competitive practices.
75. If the applicable law provides for the grant of compulsory licenses on the ground of dependent patents, please indicate the conditions that dependent patents must meet for a compulsory license to be granted:
See Section 30A(a), (b), (c).
76. Does the applicable law provide a general policy to be followed in relation to the remuneration to be paid by the beneficiary of the compulsory license to the patentee? Please explain:
Section 32(la)(b) - provides that a reasonable royalty compatible with the successful working of the invention in Zimbabwe on a commercial scale and at a profit, should be provided to the patentee.
77. If the applicable law provides for the grant of compulsory licenses on the ground of "national emergency" or "circumstances of extreme urgency", please explain how the applicable law defines those two concepts and their scope of application, and provide examples:
The Act does not define the terms, but it lists the conditions under which the licenses are granted - see Section 35 of the Act.
78. Please indicate how many times and in which technological areas compulsory licenses have been issued in your country:
Once in the field of medicine.
79. Is the applicable legal framework for the issuance of compulsory licenses considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
It is not adequate because the country is yet to ratify the Protocol amending TRIPS Agreement.
80. Which challenges, if any, have been encountered in relation to the use of the compulsory licensing system provisions in your country? Please explain:
No available information as of this date.
Government use
81. If the exception is contained in statutory law, please provide the relevant provision(s):
Section 35 of the Patents Act.
82. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
There is no case law.
83. What grounds for the grant of government use does the applicable law provide in respect to patents (please indicate the applicable grounds):
Public health
National security
National emergency and/or extreme urgency
Other, please specify: See Section 35(l)(f)
84.(a) What are the public policy objectives for providing government use in your country?
For the well-being of the population as well as for national security purposes.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
85. If the applicable law provides for the grant of government use on the ground of "national emergency" or "circumstances of extreme urgency", please explain how the applicable law defines those two concepts and their scope of application, and provide examples:
The Act does not provide for definitions of these terms.
86. Please indicate how many times and in which technological areas government use has been issued in your country:
Nil.
87. Is the applicable legal framework for the issuance of government use considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
It is not adequate becuase the legislation does not provide for government use for research purposes.
88. Which challenges, if any, have been encountered in relation to the use of the government use mechanism in your country? Please explain:
None.
Section 10: Exceptions and limitations related to farmers' and/or breeders' use of patented inventions
89.-100.
[Note from the Secretariat: the applicable law of Zimbabwe does not provide exceptions and limitations related to farmers' and/or breeders' use of patented inventions.]
Section 11: Other Exceptions and Limitations
101.-103.
[Note from the Secretariat: the applicable law of Zimbabwe does not provide other exceptions and limitations.]
[End of Questionnaire]
March 2012