Moroccan Industrial and Commercial Property Office (OMPIC)

  • 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.

An invention is patentable if it meets the criteria of novelty, inventive step and industrial applicability.
(Ref.: Article 22 of Law No. 17-97 on the Protection of Industrial 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.

The following are exclusions from patentability in accordance with Law No. 17-97 on the Protection of Industrial Property:
(1) discoveries as well as scientific theories and mathematical methods;
(2) esthetic creations;
(3) schemes, rules and methods for performing intellectual activities, playing games or doing business, as well as computer programs; and
(4) presentations of information.
(Ref.: Article 23 of Law No. 17-97 on the Protection of Industrial Property)


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?

A patent grants its owner or its rights holders an exclusive right to use the invention.
(Ref.: Article 16 of Law No. 17-97 on the Protection of Industrial Property)


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;
Preparation of medicines;
Prior use;
Use of articles on foreign vessels, aircrafts and land vehicles;
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):

The rights granted by a patent do not cover:
(a) acts done privately and for non-commercial purposes;
(Ref.: Article 55 of Law No. 17-97 on the Protection of Industrial Property)


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):

The rights granted by a patent do not cover:
(b) cts carried out for experimental purposes relating to the subject matter of the patented invention;
(Ref.: Article 55 of Law No. 17-97 on the Protection of Industrial Property)


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.


16.-20.

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


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 framework is appropriate.


22. 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 4: Preparation of medicines

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

The rights granted by a patent do not cover:
(c) the extemporaneous preparation of medicine for individual cases in a pharmacy in accordance with a medical prescription, nor acts concerning the medicine so prepared;
(Ref.: Article 55 of Law No. 17-97 on the Protection of Industrial Property)


24.-25.

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


26. Who is entitled to use the exception (for example, pharmacists, doctors, physicians, others)? Please describe:

Pharmacists.


27. Does the applicable law provide for any limitations on the amount of medicines that can be prepared under the exception?

No.


28. 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.]


29. 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 framework is appropriate.


30. 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 5: Prior use

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

The rights granted by a patent do not cover:
(f) acts performed by any person who, in good faith, on the date of filing the application or, where priority is claimed, on the priority date of the application on the basis of which the patent is granted in the territory of Morocco, was using the invention or was making effective and serious preparations toward so using, provided that such acts do not differ, by their nature or purpose, from effective or expected prior use. The right of the prior user may only be transferred with the undertaking to which it belongs;
(Ref.: Article 55 of Law No. 17-97 on the Protection of Industrial Property)


32.-34.

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


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:

(Ref.: Article 55(f) of Law No. 17-97 on the Protection of Industrial Property)


38.-39.

[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 framework is appropriate.


41. 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 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):

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


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

The rights granted by a patent do not cover:
(e) the use of patented objects on board aircraft, land vehicles or vessels of Member Countries of the International Union for the Protection of Industrial Property when these temporarily or accidentally enter the airspace, territory or territorial waters of Morocco;
(Ref.: Article 55 of Law No. 17-97 on the Protection of Industrial Property)


44.(a) What are the public policy objectives for providing the exception? 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.]


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. The terms “temporarily” and “accidentally” are employed.


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.


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:

The framework is appropriate.


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.-57.

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


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:

The legal framework will be amended shortly as follows:
“The rights granted by a patent do not cover:
(d) studies and trials required to obtain the authorization for placing a medicinal product on the market, as well as acts necessary to carry them out and to obtain authorization;”


59. 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 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):

(d) acts concerning the product covered by such patent, carried out in the territory of Morocco, after the product has been put on the market in Morocco by the patent owner or with his express consent;
(Ref.: Article 55 of Law No. 17-97 on the Protection of Industrial 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:

(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?

Uncertain

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 exhaustion regime is appropriate.


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

[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):

Articles 60 to 66 of Law No. 17-97 on the Protection of Industrial 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):

Non-working or insufficient working of the patented invention;
Refusal to grant licenses on reasonable terms;
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):

“non-working” or “insufficient working”: if at the time of the application, and in the absence of legitimate excuses, the owner of the patent or its rights holder: has not started to work or to make effective and serious preparations to work the invention to which the patent relates in the territory of the Kingdom of Morocco; has not marketed the product to which the patent relates in sufficient quantities to meet the needs of the Moroccan market; or where working or marketing of the patent in Morocco has been abandoned for more than three years.
(Ref.: Article 60 of Law No. 17-97 on the Protection of Industrial Property)


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):

The importation of a patented product or of a product carried out by means of a patented process constitutes “working” of a patent.
(Ref.: Articles 53 and 60 of Law No. 17-97 on the Protection of Industrial Property)


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?

Three years after the issuance of the patent or four years after the filing date of the patent application.
(Ref.: Article 60 of Law No. 17-97 on the Protection of Industrial Property)


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”?

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


73.-74.

[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 patent-protected invention cannot be worked without infringing the rights of a prior patent whose owner refuses to grant a license under reasonable commercial conditions and arrangements, the later patent owner may obtain a compulsory license from the courts, provided that:
(a) the invention claimed in the later patent involves significant technical progress and is of considerable economic interest compared with the invention claimed in the prior patent;
(b) the owner of the prior patent is entitled to a cross-license agreement under reasonable conditions to utilize the invention claimed in the later patent; and
(c) the license relating to the prior patent is non-transferable except where the later patent is also transferred.
(Ref.: Article 66 of Law No. 17-97 on the Protection of Industrial Property)


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:

A compulsory license is granted under conditions set out by the courts, particularly as concerns the amount of royalties payable. Such royalties are established according to the case in question, taking into account the economic value of the license.
(Ref.: Article 62 of Law No. 17-97 on the Protection of Industrial 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:

[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:

Never


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:

The framework is 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:

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


Government use

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

Articles 67, 71 and 75 of Law No. 17-97 on the Protection of Industrial Property.


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 economic needs.


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:

Never.


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 will be amended shortly as follows:
“Where public health so requires, patents issued for medicinal products, for processes for obtaining medicinal products, for products necessary to obtain such medicinal products or for processes for making such products, may, where such products are not available to the public in sufficient quantity or quality or at unusually high prices, automatically be worked.

Ex officio working is enacted by an administrative act on the request of the public health administration.

The above provisions also apply to medicinal products for exportation to a country which does not have any manufacturing capacity or with insufficient manufacturing capacity in accordance with relevant international agreements in force.”


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 limitation related to farmers' and/or breeders' use of patented inventions

89.-100.

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

 

 

[End of questionnaire]

September 2011