Algerian National Institute of Industrial Property (INAPI)

(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. 03-07 of July 19, 2003 on Patents.
(Section 1, Articles 3 to 9)

 

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.

(1) Plant varieties or animal breeds and essentially biological methods of obtaining plants or animals;
(2) Inventions, the implementation of which on Algerian territory would be contrary to ordre public or morality;
(3) Inventions, the exploitation of which on Algerian territory would harm the health and lives of people and animals or the preservation of plants, or would seriously endanger the protection of the environment.

 

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 11 of Ordinance 03-07 of July 19, 2003.

The patent shall confer on its owner the following exclusive rights:

(1) where the subject matter of the patent is a product, prevent third parties acting without his consent from manufacturing, using, selling, offering for sale or importing for such purposes this product;
(2) where the subject matter of the patent is a process, prevent third parties acting without his consent from using the process and the following acts: using, offering for sale, selling or importing for such purposes the product obtained directly by this process.

The application is not published and publication is post grant.

 

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):

Ordinance No. 03-07 of July 19, 2003 on Patents.

Article 12: The rights stemming from a patent shall extend only to the acts performed for industrial or commercial purposes.

Such rights shall not extend to:

(1) acts performed solely for scientific research purposes;
(2) acts concerning the product covered by the patent after the product has been lawfully traded;
(3) the use of means patented on board foreign vessels, space craft or air or land locomotives which temporarily or accidentally enter the national waters, air space or territory”.

 

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):

Article 12(1).

 

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?

The promotion of scientific research and economic development.

(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:

Algerian legislation does not provide for a distinction with regard to the nature of the organization.

 

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):

These terms are not defined in the applicable legislation.

 

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
.

 

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:

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):

The relevant Algerian legislation does not distinguish these two terms.

 

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):

No, Algerian legislation does not state other criteria.

 

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:

The applicable legal framework is considered appropriate.

 

22. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:

No challenge encountered in this area.

 

Section 4: Preparation of medicines

23.-30.

[Note from the Secretariat: the applicable law of Algeria 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):

Ordinance No. 03-07 of July 19, 2003 on Patents, Article 14.

 

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):

The scope of the use is that of good faith, as stipulated in Article 14(1).
No, no provision is made by Algerian legislation for quantitative or qualitative limitations in this respect.

 

35. Does the applicable law provide for a remuneration to be paid to the patentee for the exercise of the exception? Please explain:

No, no provision has been made for such remuneration.

 

36. According to the applicable law, can a prior user license or assign his prior user's right to a third party?

No.

 

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?

No.

 

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):

[Note from the Secretariat: response was not provided.]

 

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:

The legal framework is considered appropriate.

 

41. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:

No comments. 

 

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):

Ordinance No. 03-07 of July 19, 2003 on Patents, Article 12-3.

 

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):

The terms "temporarily" and/or "accidentally" are used but not defined by the applicable legislation.

 

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):

No comments.

 

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):

No, the legislation does not state any 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:

Yes, the applicable legal framework of the exception is considered appropriate.

 

50. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:

No comments.

 

Section 7: Acts for obtaining regulatory approval from authorities

51.-59.

[Note from the Secretariat: the applicable law of Algeria 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:

Uncertain, please explain: National legislation has not specified the place of exhaustion.

If the exception is contained in statutory law, please provide the relevant provision(s):

Ordinance No. 03-07 of July 19, 2003 on Patents, Article 12(2).

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:

(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:

The applicable exhaustion of rights regime has not been deemed appropriate. We contemplate revising the law with a view to clarifying the exhaustion of the right (international).

 

64. Which challenges, if any, have been encountered in relation to the practical implementation of the applicable exhaustion regime in your country? Please explain:

No comments.

 

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):

Ordinance No. 03-07 of July 19, 2003 on Patents, Articles 38 to 50.


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;
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):

These terms are not defined by the applicable legislation.

 

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, the import of a patented product or a product manufactured using a patented process constitutes &"working" of the patent, as stipulated by Article 11 of Ordinance 03-07 of July 19, 2003.

 

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?

Following expiry of a period of four (4) years beginning from the date of filing of the patent application or three (3) years beginning from the date of grant of the patent.


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"?

If the patentee provides evidence that the circumstances made it impossible to remedy the lack or insufficiency of exploitation of his patent.

 

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):

These terms are not defined by the applicable legislation.

 

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):

Article 49(2) of Ordinance 03-07 of July 19, 2003
Where public interest, in particular national security, nutrition, health or the development of other sectors of the national economy so requires, and inter alia where the fixing, for patented pharmaceutical products, of excessive or discriminatory prices in relation to average market prices.

 

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:

The conditions are: - notable technical progress - and significant economic interest (Article 47(2) of Order 03-07 of July 19, 2003).

 

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:

Yes, the applicable legislation gives general guidelines as to the remuneration to be paid by the beneficiary of the compulsory license to the patent owner.
Article 41 of Order 03-07 of July 19, 2003.

 

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:

[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:

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:

Yes, the legal framework applicable to the granting of compulsory licenses is considered appropriate.

 

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 comments.

 

Government use

81. If the exception is contained in statutory law, please provide the relevant provision(s):

Article 49, Ordinance 03-07 of July 19, 2003.

 

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):

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.

 

84.(a) What are the public policy objectives for providing government use in your country?

The aim is the protection of citizens and the development of the national economy.

(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.-86.

[Note from the Secretariat: response was not provided.]

 

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:

The legal framework applicable to the grant of licenses for use by the authorities is considered appropriate.


88. Which challenges, if any, have been encountered in relation to the use of the government use mechanism in your country? Please explain:

No comments.

 

 

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 Algeria does not provide exceptions 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 Algeria does not provide other exceptions and limitations.]

 

[End of questionnaire]

October 2011