Department of Registrar of Companies and Official Receiver
Cyprus
- 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.
The legal standard used in our Patents Law, Law 16(I)98 (as amended) is that “an invention shall not be patentable unless it is novel, involves an inventive step and is industrially applicable”
The relevant provision in the Law is section 5(1).
The exclusions from patentability are stipulated as follows:
“The following, in particular, shall not be regarded as inventions within the meaning of subsection (1):
(a) Discoveries, scientific theories and mathematical methods;
(b) Aesthetic creations;
(c) Schemes, rules and methods of performing mental acts, playing games or doing business and programs for computers and,
(d) Presentation of information.
A patent shall not be granted in respect of an invention exploitation of which would be contrary to public order or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by Law or Regulations.
The source of these exclusions from patentability is section 5(2) and (3).
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.
[Note from the Secretariat: response was not provided.]
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?
“Where the patent concerns a product the owner of the patent shall have the right to prevent third parties from performing, without his authorization, the following acts:
(i) The making of a product incorporating the protected invention.
(ii) The offering or the putting on the market of a product incorporating the protected invention, the using of such a product, or the importing or stocking of such a product for such offering or putting on the market or for such use.
(iii) The inducing of third parties to perform any of the above acts.
Where the patent concerns a process, the owner of the patent shall have the right to prevent third parties from performing, without his authorization, the following acts:
(i) The using of a process which is the subject matter of the patent.
(ii) In respect of any product directly resulting from the use of the process, any of the acts referred to in paragraph (1) (ii) (of section 27), even where a patent cannot be obtained for the said product.
(iii) Inducing third parties to perform any of the above acts.
A patent shall also confer on its owner the right to prevent third parties from supplying or offering to supply a person, other than a party entitled to exploit the patented invention with means, relating to an element of that invention, exclusively for carrying out the invention, when the third party knows, or under the circumstances it is obvious, that those means are suitable and intended to be used for carrying out that invention.
This provision shall not apply when the means are commercial products and the circumstances of the supply of such products do not constitute inducement to infringe the patent”
The relevant statutory provisions are: section 27(1), (2) and (4) (a).
The rights conferred by a patent application after publication are prescribed by Section 28 as follows:
“28(1) A patent application shall, where published under Section 25 of this Law, provisionally confer upon the applicant from the date of such publication the same rights in respect of the subject-matter of the application as are conferred by Section 27 of this Law in respect of the subject-matter of a patent.
(2) The Court may decide to stay any proceedings brought before it in respect of unauthorized acts performed in relation to an invention that is the subject of a published application until a final decision has been made by the Registrar to grant or refuse a patent on the application.
(3) A patent application shall be deemed never to have had the effects set out in subsection (1) of this section if it is withdrawn, deemed to be withdrawn or finally refused.
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;
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 provision is contained in section 27(3)(i).
5. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
N/A
6.(a) What are the public policy objectives for providing the exception?
The public policy objectives for providing this exception are to encourage private initiative,
Principally learning, in colleges and universities and to avoid preventing use that is not commercial which means that such use is essentially for no profit and no harm will incur to the beneficiary/owner of the patent. Non-commercial use is basically a private use and a very restricted use.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
N/A
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):
N/A
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):
The Law provides expressly (Section 27(3)(ii)) “provided that it does not significantly prejudice the economic interests of the proprietor of the patent”.
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:
As things stand at the moment the current legal framework is considered adequate and no amendments to the legislation are under consideration.
10. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
N/A
Section 3: Experimental use and/or scientific research
11. If the exception is contained in statutory law, please provide the relevant provision(s):
The relevant provision in the Law is section 27(3) (iii).
12. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
N/A
13.(a) What are the public policy objectives for providing the exception?
The public policy criteria are to encourage inventiveness, educational promotion and scientific research in order to benefit mankind generally,
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
N/A
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:
The applicable Law does not make any such distinction.
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):
N/A
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:
The act consist of making or using for purely experimental purposes.
17. If any of the following criteria is relevant to the determination of the scope of the exception, please indicate:
N/A
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:
The commercial intention of the experimentation and/or research is not relevant.
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):
N/A
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):
There is a provision in section 27(3) (iii) which delineates the exception “in the making or using for purely experimental purposes or for scientific research”.
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 considered adequate to meet the objectives sought. There are no amendments planned for the near future.
22. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
N/A
Section 4: Preparation of medicines
23. If the exception is contained in statutory law, please provide the relevant provision(s):
The relevant provision is section 27(3)(iv) of the Law.
24. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
N/A
25.(a) What are the public policy objectives for providing the exception? Please explain:
This exception is based on principles of the public benefit and the well being of manking. If the preparation is limited to individual cases and for specific medical prescriptions there cannot be allegation of widespread infringement or at least infringement in a commercial scale. A case that such a medicine is required in a remote area or in a third world country, where the patent is not known or simply medicines under the patent have not been imported to pharmacies there, makes the exception soundly convincing.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
N/A
26. Who is entitled to use the exception (for example, pharmacists, doctors, physicians, others)? Please describe:
Under our Law only pharmacists and medical doctors.
27. Does the applicable law provide for any limitations on the amount of medicines that can be prepared under the exception?
No
28. 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):
The exception must consist “of the extemporaneous preparation for individual cases of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared”.
29. 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 legal framework is considered adequate and no amendment(s) to the Law is(are) foreseen at present and in to the near future.
30. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
N/A
Section 5: Prior use
31.-41.
[Note from the Secretariat: the applicable law of Cyprus does not provide exceptions related to prior use.]
Section 6: Use of articles on foreign vessels, aircrafts and land vehicles
42.-50.
[Note from the Secretariat: the applicable law of Cyprus does not provide exceptions related to the use of articles on foreign vessels, aircrafts and land vehicles.]
Section 7: Acts for obtaining regulatory approval from authorities
51.-59.
[Note from the Secretariat: the applicable law of Cyprus 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
Regional
If the exception is contained in statutory law, please provide the relevant provision(s):
The exception is provided in section 27(3) (i) of the Law.
If the exception is provided through case law, please cite the relevant decision(s) and provide its (their) brief summary:
N/A
61.(a) What are the public policy objectives for adopting the exhaustion regime specified above? Please explain:
The public policy objective is the uninterrupted circulation of patented products in all the markets of Europe (European Union) after the product has been put in the market in Cyprus.
Another objective is the need to protect the patent against infringement in every country in the European Union and the patent if not protected specifically in a particular EU member state can be freely used/utilized by third parties.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
N/A
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):
N/A
63. Has the applicable exhaustion regime been considered adequate to meet the public policy objectives in your country? Please explain:
It has been considered adequate as far as I know.
64. Which challenges, if any, have been encountered in relation to the practical implementation of the applicable exhaustion regime in your country? Please explain:
N/A
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):
The exception is contained in sections 49 to 56 of the Law.
66. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
N/A
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;
Dependent patents;
Other, please specify: where the patented invention is a product, that a demand for the product in Cyprus: (i) is not being met, or (ii) is not being met on reasonable terms (anti-competitive practices).
68.(a) What are the public policy objectives for providing compulsory licenses in your country? Please explain:
The prime reasoning is the utilization of the patent and/or the patented product to the public benefit. It is also important to use the patent in order to encourage innovation and the further advancement of science and technology by other interested persons. Another objective is to promote trade and to boost the economy of our country by using patents as a source of potential income not only to the patentees but also to the whole of our country.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
N/A
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):
The terms that are mentioned in the question are not defined in our Law.
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):
No such legal provision exists in our Law.
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?
Four years
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?
No
If yes, what are “legitimate reasons”?
The provision in the Law does not specify “legitimate reasons”. It merely says that an application for a compulsory license may be “opposed”. However, Article 51(2) states that:
“[…] the Registrar shall, in determining whether to make an order or entry in pursuance of such an application, take account of the following matters, that is to say-
(a) the nature of the invention, the time which has elapsed since the publication in the Official Gazette of the Republic of a notice of the grant of the patent and the measures already taken by the proprietor of the patent or any licensee to make full use of the invention;
(b) the ability of any person to whom a license would be granted under the order concerned to work the invention to the public advantage; a
(c) the risks to be undertaken by that person in providing capital and working the invention if the application for an order is granted, but shall not be required to take account of matters subsequent to the making of the application.”
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):
In the Law there are no definitions of the quoted 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 legal provision required is found in section 49(2)(d) of the Law.
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:
By reason of the refusal of the proprietor of the patent to grant a license or licenses on reasonable terms, the working or efficient working in Cyprus of any other patented invention which makes a substantial contribution to the art is prevented or hindered (Article 49(2)(c)(ii)).
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:
In section 51(1)(b) is specified that the powers of the Registrar shall be exercised with a view to securing “that the inventor or other person beneficially entitled to a patent shall receive reasonable remuneration having regard to the nature of the invention”.
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:
No such provision exists in the Law.
78. Please indicate how many times and in which technological areas compulsory licenses have been issued in your country:
No records of statistics exist at present.
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 considered adequate. No amendments to the Law are foreseen in the near future.
80. Which challenges, if any, have been encountered in relation to the use of the compulsory licensing system provisions in your country? Please explain:
None is known.
Government use
81. If the exception is contained in statutory law, please provide the relevant provision(s):
The relevant section is 49(1)(b) and relevant sections are also all sections from 49 to 56.
82. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
N/A
83. What grounds for the grant of government use 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.
84.(a) What are the public policy objectives for providing government use in your country?
Public policy objectives for the provision of government use in Cyprus are national emergency, national security, public health and the possible expertise of the government in a particular field of science and technology. It can also be mentioned the necessity to work a patent or to produce a product when there is no response from the private sector. The financial incentive cannot also be disregarded if money will go to the government’s coffers from working itself a particular patent.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
N/A
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:
These two concepts are not defined in the Cyprus Patent Law.
86. Please indicate how many times and in which technological areas government use has been issued in your country:
N/A
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 considered adequate at present. No amendments are foreseen for the near future.
88. Which challenges, if any, have been encountered in relation to the use of the government use mechanism in your country? Please explain:
N/A
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 Cyprus 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 Cyprus does not provide other exceptions and limitations.]
[End of questionnaire]
October 2011