National Center of Registries (NCR)
El Salvador
(English translation by WIPO)
- 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 is the Law on Intellectual Property.
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?
[Note from the Secretariat: response was not provided.]
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;
Prior use;
Use of articles on foreign vessels, aircrafts and land vehicles;
Acts for obtaining regulatory approval from authorities;
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):
Article 116(b) of the Law on Intellectual Property
5. 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.]
6.(a) What are the public policy objectives for providing the exception?
The Law does not make such provision, but it must be ensured that the normal working of the invention by the owner is not harmed.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
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):
These concepts are not defined in the Law.
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):
No other criteria exist.
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:
There is provision for the possibility of revising current legislation in the medium term.
10. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
None.
Section 3: Experimental use and/or scientific research
11. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 116(c) of the Law on Intellectual Property.
12. 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.]
13.(a) What are the public policy objectives for providing the exception?
Generating research from patented inventions and allowing experimentation on the subject matter of the patented invention.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
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, no distinctions exist.
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):
Those concepts are not defined.
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:
[Note from the Secretariat: response was not provided.]
Please explain by citing legal provision(s) and/or decision(s):
There are no relevant legal provisions.
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):
There is no distinction in the Law.
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):
Not applicable.
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 planned to revise the current Law in the medium term.
22. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
No problems have been encountered.
Section 4: Preparation of medicines
23.-30.
[Note from the Secretariat: the applicable law of El Salvador does not provide exceptions related to the preparation of medicines.]
Section 5: Prior use
31. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 116(2) of the Law on Intellectual Property.
32. 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.]
33.(a) What are the public policy objectives for providing the exception? Please explain:
The Law does not make such provision, although recognition of the right acquired for a previous use of the patent may be considered.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
34. How does the applicable law define the scope of “use”? Does the applicable law provide for any quantitative or qualitative limitations on the application of the “use” by prior user? Please explain your answer by citing legal provision(s) and/or decision(s):
The Law does not contain any kind of definition.
35. Does the applicable law provide for a remuneration to be paid to the patentee for the exercise of the exception? Please explain:
No such provision is made.
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 transfer of the enterprise with the establishment where production is carried out.
38. Does this exception apply in situations where a third party has been using the patented invention or has made serious preparations for such use after the invalidation or refusal of the patent, but before the restoration or grant of the patent?
No
39. 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 are no other criteria.
40. 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 planned to revise the Law in the medium term.
41. 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.
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):
Article 116(a) of the Law on Intellectual Property.
43. 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.]
44.(a) What are the public policy objectives for providing the exception? Please explain:
The Law does not make such provision but it should be considered that the free transfer of the subject matter which the patented elements contain cannot be obstructed.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[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):
No such definitions exist.
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):
In this case, Article 5ter of the Paris Convention applies, with reference to Article 116(a) of the Law on Intellectual Property.
48. 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 are no other criteria.
49. 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 planned to revise the Law in the medium term.
50. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
There have been no challenges.
Section 7: Acts for obtaining regulatory approval from authorities
51. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 116(e) of the Law on Intellectual Property.
52. 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.]
53.(a) What are the public policy objectives for providing the exception? Please explain:
The Law does not make such provision, although the generation of information necessary to support the production of a health register should be allowed.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
54. Who is entitled to use the exception? Please explain:
Any third party.
55. The exception covers the regulatory approval of:
Pharmaceutical and agricultural chemicals.
56. Please indicate which acts are allowed in relation to the patented invention under the exception?
Using
57. 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 are no other criteria.
58. 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 planned to revise the Law in the medium term.
59. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
No challenges encountered.
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):
Article 116(d) of the Law on Intellectual Property.
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.(a) What are the public policy objectives for adopting the exhaustion regime specified above? Please explain:
There is no basis in the Law, but the owner may not exercise the right in the invention indefinitely.
(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):
No express legal provision exists.
63. Has the applicable exhaustion regime been considered adequate to meet the public policy objectives in your country? Please explain:
Currently the subject is being discussed by different national authorities and sectors.
64. Which challenges, if any, have been encountered in relation to the practical implementation of the applicable exhaustion regime in your country? Please explain:
Mainly in the area of health a restriction on parallel imports is being considered.
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):
Article 133 ff. of the Law on Intellectual Property.
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):
National security;
National emergency and/or extreme urgency.
68.(a) What are the public policy objectives for providing compulsory licenses in your country? Please explain:
The balance between private interest and the interest of society (basic needs of the population).
(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.-75.
[Note from the Secretariat: response was not provided.]
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:
This should be estabished by the judge, in accordance with Article 134(b) of the Law on Intellectual Property.
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 Law does not define the concepts.
78. Please indicate how many times and in which technological areas compulsory licenses have been issued in your country:
None.
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 planned to revise the Law in the medium term.
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.
Government use
81.-88.
[Note from the Secretariat: the applicable law of El Salvador does not provide exceptions related to government use.]
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 El Salvador 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 El Salvador does not provide other exceptions and limitations.]
[End of questionnaire]
March 2012