State Committee on Standardization, Metrology and Patents
Patent Department, Republic of Azerbaijan
- 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 licensing 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.
An invention is a technical solution relating to a product or process in any field and is granted by a legal protection if it is new, involves an inventive step and is industrially applicable (“Law on Patent" of the Republic of Azerbaijan (1997, 2009, Article 7).
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.
The following subject matter shall not be deemed inventions:
scientific theories;
mathematical methods;
outcome of the art-constructive performance (design);
methods of organization and performing for intellectual activity and for business activity;
rules and methods for playing games;
algorithms and programs for computers;
methods of presenting information;
symbols, schedules and rules;
projects and plans for structures and buildings and for land development;
plant and animal varieties (except for microorganisms ) and essentially biological processes for raising them (except for non-biological or microbiological processes;
layout designs of integrated circuits;
methods for the diagnostic of illnesses, methods for therapeutic and surgical treatment of humans or animal organisms.
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?
Exclusive right on use of subject matter of industrial property shall belong to the owner of the patent, if it does not infringe upon the rights of other patent owners and the present Law (Article 14 (1)).
According to article 14(2) patent shall confer on its owner the following exclusive rights:
(a) where the subject matter of a patent is a product, to prevent third parties not having the owner’s consent from the acts of: making, using, offering for sale, selling, or importing1 for these purposes that product;
(b) where the subject matter of a patent is a process, to prevent third parties not having the owner’s consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
_________________________
1This right, like all other rights conferred under this Agreement in respect of the use, sale, importation or other distribution of goods, is subject to the provisions of Article 6.
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;
Preparation of medicines;
Prior use;
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):
The use of a product containing the patented invention in the non-commercial purposes without the income not recognized as an infringement of the exclusive rights of the patent (Article 23).
5.-10.
[Note from the Secretariat: response was not provided.]
Section 3: Experimental use and/or scientific research
11. If the exception is contained in statutory law, please provide the relevant provision(s):
The use of protected object of the invention in the purposes of a scientific research, experimental study and it's validation prior to the patent term expiration with providing of exclusion of the manufacture or storage of products in large volume not recognized as an infringement of the patent holder's exclusive rights. (Article 23).
12.-15.
[Note from the Secretariat: response was not 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:
determine how the patented invention works;
determine the scope of the patented invention;
determine the validity of the claims;
seek an improvement to the patented invention;
invent around the patented invention.
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”).
Please explain by citing legal provision(s) and/or decision(s):
[Note from the Secretariat: response was not provided.]
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;
A commercial purpose.
19.-22.
[Note from the Secretariat: response was not provided.]
Section 4: Preparation of medicines
23. If the exception is contained in statutory law, please provide the relevant provision(s):
The occasional preparation of medicines prescribed by a physician is not recognized as an infringement of the patent holder's exclusive rights. (Article 23, Acts not constituting infringement of the exclusive rights of patent owners).
24.-30.
[Note from the Secretariat: response was not provided.]
Section 5: Prior use
31. If the exception is contained in statutory law, please provide the relevant provision(s):
Any legal entity or natural person who, before the priority date of subject matter of invention protected by a patent and independently of the author, has devised and used in good faith on the territory of the Republic of Azerbaijan an identical subject matter of invention or has up until that date been making the necessary preparations for such use, has the right, without hindrance and without paying any compensation to the patent owner, to continue independently using the subject matter, provided that the scope of the use of the subject matter is not expanded (Article 16(1)).
32.-35.
[Note from the Secretariat: response was not provided.]
36. According to the applicable law, can a prior user license or assign his prior user’s right to a third party?
Yes
37. In case of affirmative answer to question 36, does the applicable law establish conditions on such licensing or assignment for the continued application of the prior use exception?
Yes
If yes, please explain what those conditions are:
The right of prior use may only be transferred to successor, another legal entity or natural person together with the enterprise where the subject matters of invention is used or where the necessary preparations for such use had been made. Successor, legal entity or natural person might use this right in a scope given a prior user in accordance with item 1 of the Article 16. (Article 16(3)).
38.-41.
[Note from the Secretariat: response was not provided.]
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):
The use of devices forming the patented subject matter of industrial property in the construction or operation of means of transport of other countries when such means of transport, if the means of transport temporarily or accidentally enter the territory of the Republic of Azerbaijan, provided that such devices are used there exclusively for the needs of the means of transport, if the means of transport belong to legal entity or natural persons of countries affording the same rights to owners of means of transport of the Republic of Azerbaijan, Law on Patent, Article 23.
43.-44.
[Note from the Secretariat: response was not provided.]
45. The exception applies in relation to:
Vessels;
Aircrafts;
Land Vehicles;
Spacecraft.
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):
Yes, “temporarily” or “accidentally”, (Article 23 Acts not constituting infringement of the exclusive rights of patent owners).
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, provided that such devices are used there exclusively for the needs of the means of transport, if the means of transport belong to legal entity or natural persons of countries affording the same rights to owners of means of transport of the Republic of Azerbaijan, (Article 23, Acts not constituting infringement of the exclusive rights of patent owners).
48.-50.
[Note from the Secretariat: response was not provided.]
Section 7: Acts for obtaining regulatory approval from authorities
51.-59.
[Note from the Secretariat: the applicable law of Azerbaijan 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:
National.
If the exception is contained in statutory law, please provide the relevant provision(s):
The placing on the market of any product in which a patented a subject matter of invention has been used or the application process protected by a patent shall be deemed to have been used of a subject matter of invention if they contain all of the essential features a patented of subject matter of industrial property. (Article 15(1)).
If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
[Note from the Secretariat: response was not provided.]
61.-64.
[Note from the Secretariat: response was not provided.]
Section 9: Compulsory licensing and/or government use
Compulsory licenses
65. If the exception is contained in statutory law, please provide the relevant provision(s):
Law on Patent, Article 20
66. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
[Note from the Secretariat: response was not provided.]
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.
68.(a) What are the public policy objectives for providing compulsory licenses in your country? Please explain:
(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):
Where the owner of a patent or his right successor does not use the subject matter of invention property within 3 years time from the date a patent is granted without any valid reason and does not made serious preparation to use or suspend more than 3 years and refuses from grant the license after termination of this period, any legal entity or natural person may appeal to the Court with a request for the grant compulsory license on use the subject matter of invention. Compulsory license shall be of non-exclusive character. Article 20(1).
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 3 years time from the date a patent is granted.
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?
[Note from the Secretariat: response was not provided.]
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):
See 69.
74.-80.
[Note from the Secretariat: response was not provided.]
Government use
81. If the exception is contained in statutory law, please provide the relevant provision(s):
With the objectives of safeguarding the interests of national security respective body of executive power has the right of giving his consent on use of the subject matter of industrial property without the consent of patent owner. In this case remuneration compensation is paid to patent owner. In the case when patent owner is not satisfied with the amount of compensation, he may appeal to the Court in an order established by legislation of the Republic of Azerbaijan, Law on Patent, Article 18.
82.-88.
[Note from the Secretariat: response was not provided.]
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 Azerbaijan does not provide exceptions and limitations related to farmers’ and/or use of patented inventions.]
Section 11: Other exceptions and limitations
101.-103.
[Note from the Secretariat: the applicable law of Azerbaijan does not provide other exceptions and limitations.]
[End of questionnaire]
October 2011