Industrial Property Office
Mauritius
- 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 licenses 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) An invention is patentable where it is: (i) new (ii) involves an inventive step (iii) is capable of industrial application (Section 12(1) of the Patents, Industrial Designs and Trademarks Act 2002)
(b) Moreover according to Section 12(8) of the Act, an invention, which is contrary to public order or morality shall not be patentable.
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 following even if they are inventions are excluded from patent protection:
(a) discoveries, scientific theories and mathematical methods;
(b) schemes, rules or methods for doing business, performing purely mental acts or playing games;
(c) methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human and animal body;
(d) plants;
(e) animals
(f) essentially biological processes for the production of plants and animals;
(g plants varieties; and
(h) literary, dramatic, musical or artistic works or any other aesthetic creation whatsoever (Section 11(3) of the Patents, Industrial Designs and Trademarks Act 2002
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?
According to Section 21 (2) of the Patents, Industrial Designs and Trademarks Act 2002, the exclusive rights granted with a patent are as follows:
(a) where the patent has been granted in respect of a product:
(i) the making, importing, offering for sale, selling and using the product;
(ii) stocking such product for the purposes of offering for sale, selling or using;
(b) where the patent has been granted in respect of a process:
(i) the use of the process;
(ii) the performance of any of the acts referred to in paragraph (a) in respect of a product obtained directly by means of the process.
3. Which exceptions and limitations does the applicable law provide in respect to patent rights (please indicate the applicable exceptions/limitations):
Experimental use and/or scientific research;
Prior use;
Exhaustion of patent rights;
Compulsory licensing and/or government use.
Section 2: Private and/or non-commercial use
4.-10.
[Note from the Secretariat: the applicable law of Mauritius 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):
Any right under the patent shall not extend to acts done only for research and experimental purposes relating to a patented invention. (Section 21(4)(d) of Patents, Industrial Designs and Trademarks Act 2002)
12.-13.
[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
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):
No definition
16.-17.
[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.-22.
[Note from the Secretariat: response was not provided.]
Section 4: Preparation of medicines
23.-30.
[Note from the Secretariat: the applicable law of Mauritius 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):
Any right under the patent shall not extend to acts performed by any person who in good faith, before the filing or, where priority is claimed, the priority date of the application on which the patent is granted and in Mauritius, was using the invention or was making effective and serious preparations for such use. (Section 21 (4)(e) of the Patents, Industrial Designs and Trademarks Act 2002)
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):
No 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
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 right of any prior use referred to in Subsection (4) may only be transferred to or devolve upon the enterprise or business or with that part of the enterprise or business, in which the use or preparations for use have been made. (Section 21 (5) of the Patents, Industrial Designs and Trademarks Act 2002)
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):
No
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:
[Note from the Secretariat: response was not provided.]
41. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
None up to now.
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):
Any right under the patent shall not extend to the use of articles on aircraft, land vehicles or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of Mauritius (Section 21(4)(c) of the Patents, Industrial Designs and Trademarks Act)
43.-44.
[Note from the Secretariat: response was not provided.]
45. The exception applies in relation to:
Vessels
Aircrafts
Land Vehicles
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):
Yes. No definition available.
47.-48.
No
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:
Not aware
50. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
None up to now
Section 7: Acts for obtaining regulatory approval from authorities
51.-59.
[Note from the Secretariat: the applicable law of Mauritius 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:
International
If the exception is contained in statutory law, please provide the relevant provision(s):
Any right under the patent shall not extend (a) to act in respect of articles which have been put on the market in Mauritius or in any other country by the owner of the patent or with his consent, by any other authorized party (b) in respect of articles which have been put on the market in Mauritius or in any other country or imported into Mauritius. (Section 21 (4)(a) & (b) of the Patents, Industrial Designs and Trademarks Act 2002)
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.-64.
[Note from the Secretariat: response was not provided.]
Section 9: Compulsory licenses and/or government use
Compulsory licenses (non-voluntary licenses)
65. If the exception is contained in statutory law, please provide the relevant provision(s):
Upon request made to the Controller after the expiration of 4 years from the date of filing of the patent application or 3 years from the date of the grant of the patent, whichever period expires last, the Controller may issue a non-voluntary license of he is satisfied that the patented invention is not exploited or is insufficiently exploited, by working the invention locally or by importation, in Mauritius. (Section 24 of the Patents, Industrial Designs and Trademarks Act 2002)
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
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):
No definition
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, (Section 24 (1) of the Patents, Industrial Designs and Trademarks Act 2002)
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?
4 years from the date of filing of the patent application or 3 years from the date of the grant of the patent, whichever period expires last. (Section 24 of the Patents, Industrial Designs and Trademarks Act 2002)
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 owner satisfies the Controller that circumstances exist which justify the non-exploitation or insufficient exploitation of the patented invention in Mauritius (Section 24 (2) of the Patents, Industrial Designs and Trademarks Act 2002)
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):
No definition
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:
where
(a) the invention claimed in a patent (later patent) cannot be exploited in the country without infringing a patent granted on the basis of an application benefiting from an earlier filing or, where appropriate, priority date (earlier patent); and
(b) the invention claimed in the later patent involves an important technical advance of considerable economic importance in relation to the invention claimed in the earlier patent; (Section 24 (5) of the Patents, Industrial Designs and Trademarks Act 2002)
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:
The decision issuing the non-voluntary licence shall fix the amount of the adequate remuneration to be paid to the owner of the patent and the conditions of payment (Section 24 (3)(c) of the Patents, Industrial Designs and Trademarks Act 2002)
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:
Not yet practically tested
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. If the exception is contained in statutory law, please provide the relevant provision(s):
Where the competent authority is satisfied that the public interest including national security, nutrition health or the development of other vital sectors of the national economy so requires, it may upon a request made, authorize, even without the agreement of the owner of the patent, authorize a Government agency to exploit the patented invention.
(Section 23 (1)(a) of the Patents, Industrial Designs and Trademarks Act 2002)
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):
Anti-competitive practices and/or unfair competition
Public health
National security
National emergency and/or extreme urgency
Development of other vital sectors of the economy
84.(a) What are the public policy objectives for providing government use in your country?
(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. 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:
No definition
86. Please indicate how many times and in which technological areas government use has been issued in your country:
None
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:
[Note from the Secretariat: response was not provided.]
88. Which challenges, if any, have been encountered in relation to the use of the government use mechanism in your country? Please explain:
None
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 Mauritius does not provide exceptions and limitations related to the farmers’ and/or breeders’ use of patented inventions.]
Section 11: Other Exceptions and Limitations
101.-103.
[Note from the Secretariat: the applicable law of Mauritius does not provide other exceptions and limitations.]
[End of Questionnaire]
March 2012