Antenne nationale de la propriété industrielle
Republic of Congo

(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.

A new invention involving an inventive step and which is industrially applicable may be the subject of a patent (Article 2 of the Bangui Agreement – patentable, of March 2, 1977).

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 rights deriving from the patent shall not extend

- to acts in relation to a patented invention that are carried out for experimental purposes in the course of scientific and technical research;
- to acts in relation to subject matter brought on to the market on the territory of a member State by the owner of the patent or with his invention;

or to the use of objects on board foreign aircraft, land vehicles or ships that temporarily or accidentally enter the airspace, territory or waters of a member State.

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?

The patentee shall have the right to make changes, improvements to the invention.

The owner of a patent may, by contract, grant to a person, whether natural person or legal entity, a license enabling him to test the patented invention.

3. Which exceptions and limitations does the applicable law provide in respect to patent rights (please indicate the applicable exceptions/limitations):

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

Section 2: Private and/or non-commercial use

4.-10.

[Note from the Secretariat: the applicable law of Congo does not provide exceptions related to private and/or non-commercial use.]

Section 3: Experimental use and/or scientific research

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

The rights deriving from the patent shall not extend to acts in relation to a patented invention that are carried out for experimental purposes in the course of scientific and technical research.

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;
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”)

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 commercial purpose.

19.-22.

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

Section 4: Preparation of medicines

23.-30.

[Note from the Secretariat: the applicable law of Congo does not provide exceptions related to the preparation of medicines.]

Section 5: Prior use

31.-41.

[Note from the Secretariat: the applicable law of Congo 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 Congo 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 Congo does not provide exceptions related to acts for obtaining regulatory approval from authorities.]

Section 8: Exhaustion of patent rights

60.-64.

[Note from the Secretariat: the applicable law of Congo does not provide exceptions related to exhaustion of patent rights.]

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):

Non-voluntary license for non-export at the request of any person made after the expiry of a period of three years from the date of grant of the patent, whichever period expires last, a non-voluntary license may be granted where the patented invention is not being exported on the territory. On account of the refusal of the owner of the patent to grant licenses on reasonable commercial terms and procedures.

66. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:

Notwithstanding the provisions of paragraph (1) above, a non-compulsory license may not be granted if the owner of the patent provides legitimate reasons for the non-working of the invention. (Bangui Agreement)

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;
Public health;
National security;
Dependent patents.

68.(a) What are the public policy objectives for providing compulsory licenses in your country? Please explain:

Where certain patents are of vital interest to the economy of the country, public health or national defense, or where non-working or insufficient working of such patents seriously compromises the country’s needs, they may be made subject, by an administrative enactment of the competent Ministry to the non-voluntary license regime.

(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):

A non-voluntary license may be granted where the patented invention is not being worked on the territory or where the working of the patented invention on such territory does not meet the demand for the protected product on reasonable terms.

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?

No.

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):

Under national law, a non-voluntary license may be granted where, on account of the refusal of the owner of the patent to grant licenses on reasonable commercial terms and procedures, the establishment or development of industrial or commercial activities on the territory is unfairly and substantially prejudiced. (See Bangui Agreement).

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):

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

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 invention claimed in the later patent must represent substantial technical progress, of considerable economic interest, in relation to the invention claimed in the earlier patent

- the owner of the earlier patent has the right to a license on reasonable terms for the use of the invention claimed in the later patent;
- the use authorized in relation to the earlier patent shall be intransferable except where the later patent is also transferred.

76.-80.

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

Government use

81.-82.

[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;
Public health;
National security;
Dependent patents.

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

Where certain patents are of vital interest to the economy of the country, public health or national defense, or where non-working or insufficient working of such patents seriously compromises the country’s needs.

(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.-88.

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

Section 10: Exceptions and limitations related to farmers' and/or breeders' use of patented inventions

Farmers’ use of patented inventions

89.-92.

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

93. 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:

No, the applicable legal framework of the exception is not adequate to meet the objectives sought. Consequently, a process of revision is ongoing, the aim of which is to tackle the legislative gap through the addition to the Bangui Agreement of a number of provisions.

Breeders’ use of patented inventions

94.-100.

[Note from the Secretariat: the applicable law of Congo does not provide exceptions and limtations related to breeders' use of patented inventions.]

Section 11: Other exceptions and limitations

101.-103.

[Note from the Secretariat: the applicable law of Congo does not provide other exceptions and limitations.]

[End of questionnaire]

August 2011