Madagascar Office of Industrial Property (OMAPI)
(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.
ORDINANCE No. 89-019 of July 31, 1989 introducing a regime for the protection of industrial property in the Democratic Republic of Madagascar.
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.
Article 8 of Ordinance No. 89-019: “1. Subject to the regulations specific to the items listed below, the following patent or invention author’s certificate applications shall be irreceivable or shall be rejected for:
(i) inventions contrary to ordre public, good morals and morality;
(ii) plant varieties or animal breeds or essentially biological processes for obtaining plants or animals;
(iii) software;
(iv) methods, systems, plans, scientific discoveries and theories as well as abstractions of pure form which do not resolve a specific problem or do not give a tangible technical solution, without prejudice to the protection of the practical applications which would incorporate them according to the requirements of Article 4;
(v) pharmaceutical, veterinary, cosmetic and food products.
(2) The patents and invention author’s certificates obtained in contravention of paragraph 1 shall be null and void.”
Article 9: “By decree of the President of the Republic, certain categories of inventions may be excluded from the field of patentability, temporarily or permanently, if an interest vital for education or teaching, public health, economy or national defense so requires.”
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?
“Article 27. Subject to the legislation in force, the patent shall confer on its owner the right to forbid third parties to carry out the following acts:
a. Where the patent has been granted for a product:
(i) manufacture, import, offer for sale, sell and use the product;
(ii) keep this product for the purposes of offering it for sale, selling it or using it;
b. Where the patent has been granted for a process:
(i) use the process;
(ii) perform the acts mentioned above in relation to the product as it results directly from the use of the process, subject to the provisions of Article 8.”
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;
Exhaustion of patent rights.
Section 2: Private and/or non-commercial use
4. If the exception is contained in statutory law, please provide the relevant provision(s):
“Article 30. 1. The rights stemming from the patent or the invention author’s certificate shall extend only to acts performed for industrial and commercial purposes.”
5.-6.
[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):
Nil.
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):
Nil.
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 current legal framework is considered to be appropriate.
“Article 140. The legal regime of protection for industrial property introduced by this Ordinance may be subject to revision.”
10. 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 was not provided.]
Section 3: Experimental use and/or scientific research
11.-22.
[Note from the Secretariat: the applicable law of Madagascar does not provide exceptions related to experimental use and/or scientific research.]
Section 4: Preparation of medicines
23.-30.
[Note from the Secretariat: the applicable law of Madagascar 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 31. Any person who, on the national territory, at the date of the filing of the patent or the invention author’s certificate application by another person, or at the priority date validly claimed for this application, in good faith, made the product or used the process, shall, despite the patent or the invention author’s certificate, have the right to continue these acts and, for the products thus obtained, to perform the other acts mentioned in Article 27.”
32.-33.
[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):
Nil.
35. Does the applicable law provide for a remuneration to be paid to the patentee for the exercise of the exception? Please explain:
[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?
No.
37.-38.
[Note from the Secretariat: response was not provided.]
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):
Nil.
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:
Yes.
41. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
Nil.
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 30.3. The rights stemming from the patent or the invention author’s certificate shall not extend to the presence or use of products on board foreign vessels, spacecraft, aircraft or land vehicles which temporarily or accidentally enter the country’s waters, airspace or territory.”
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):
Nil.
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):
Nil.
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):
[Note from the Secretariat: response was not provided.]
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:
Yes.
50. 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 was not provided.]
Section 7: Acts for obtaining regulatory approval from authorities
51.-59.
[Note from the Secretariat: the applicable law of Madagascar 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):
“Article 30.2.: The rights stemming from the patent or the invention author’s certificate shall not extend to the acts concerning the product covered by the patent or the invention author’s certificate after this product has been lawfully sold in the country.”
If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
Nil.
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):
“Article 36.
1. Any natural person or legal entity may, following the expiry of a period of four years from the patent application filing date or three years from the date of grant of the patent, the period which expires later being applied, request from the competent court, in return for fair and equitable remuneration, the grant of a compulsory license for one or more of the following reasons:
(i) the patented invention is not worked or is insufficiently worked in the country;
(ii) the patent owner refuses to grant licenses on reasonable conditions;
(iii) the working of the patented invention in the country does not satisfy, on reasonable conditions, demand for the product;
2. For the application of paragraph 1, the compulsory license shall be granted only if the patent owner does not justify the absence of working or insufficient working in the country for legitimate reasons.
3. The compulsory license shall be non-exclusive and may be transmitted, even in the form of a grant of a sub-license, only with the establishment of the beneficiary of the license, or with the part of the establishment in which the patented invention is worked.
4. A compulsory license may be withdrawn only following a court decision.”
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.
68.-69.
[Note from the Secretariat: response was not provided.]
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):
Yes. See question 2.
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?
See question 65: “Following the expiry of a period of four years from the application filing date or three years from the date of grant of the patent, the period which expires later being applied.”
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”?
Not specified.
73.-77.
[Note from the Secretariat: response was not provided.]
78. Please indicate how many times and in which technological areas compulsory licenses have been issued in your country:
Nil.
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:
Yes.
80. Which challenges, if any, have been encountered in relation to the use of the compulsory licensing system provisions in your country? Please explain:
Nil.
Government use
81. If the exception is contained in statutory law, please provide the relevant provision(s):
“Article 37.2. The State may obtain, ex officio, at any time for the needs of public interest, a license for the working of an invention which is the subject of a patent application or a patent, whether such working is effected by itself or on its behalf. The royalties due under the ex officio license shall be determined by agreement between the State and the person filing the application or the patent owner or the successor in title of such applicant or owner. In the absence of an amicable agreement, the royalties shall be fixed by the competent court under Article 135.”
82. 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.]
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.
84.-85.
[Note from the Secretariat: response was not provided.]
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:
Yes.
88. Which challenges, if any, have been encountered in relation to the use of the government use mechanism in your country? Please explain:
[Note from the Secretariat: response was not provided.]
Section 10: Exceptions and limitations related to farmers' and/or breeders' use of patented inventions
[Note from the Secretariat: the applicable law of Madagascar does not provide exceptions and limitatins related to farmers' and/or breeders' use of patented inventions.]
Section 11: Other exceptions and limitations
[Note from the Secretariat: the applicable law of Madagascar does not provide other exceptions and limitations.]
[End of questionnaire]
October 2011