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Republic of Botswana

INDUSTRIAL PROPERTY (AMENDME T) ACT, 1997

Price Pl,OO

Printed by the Governmenr Printer, Gaborone

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INDUSTRIAL PROPERTY (AMENDMENT) ACT, 1997

No.. 19

ARRfu~GEMENTOFSECTIONS

SECTION 1. Short title 2. Amendrnent of section 2 of Act No. 14 of 1996 3. Amendment of section 9 of the Act 4. Arnendrnent of section 13 of the Act 5. Amendrnent of sectìon 22 of tbe Act 6. Amendment of section 24 of me Act 7. Amendment of section 25 of the Act 8. Amendment of section 35 of the Act 9. Amendrnentof sectìon 63 of me Act

lO. Repeal of section 80 of the Act 11. Amendrnent of section 81 of the Act

An Act to amend the Industrial Property Act (No" 14 of 1996) Date 01Assent: 4th November, 1997. Date commencement: By Notice. ENACTED by the Parliament of Botswana.

1.. This Act may be cited as the Industrial Property (Amendrnent) Act, 1997.

2" The Industrial Property Act (No. 14 of 1996) (hereinafter referred to as "the Act") is amended in section 2 thereof by substituting, far the definition of the word ~'ARIPOH which appears therein, the following new definition ­ " "ARIPO" means the African Regional Industriai Property Organi ...

zation;". . 3" Section 9 of the Act is amended in subsection (1) thereof by ­ (a) substitutìng, for paragraph (j) thereof, the following new para­

graph­ "(j) diagnostic, therapeutic and surgical methods for the treat­

rnent of humans and anìmals; H and (b) by repealing paragraph (g) thereof. 40 The Act is amended by substìtutìng, for section 13 thereof, the

following new section ­ ••Application 13. (l) Every application for a patent shal1be filed wìth for a patent the Registrar and shall contain a request, adescription, one

or more claims, drawings (where required by me Registrar

of 1997

Short tìtle

Amendment of section 2 of Act No. 14 of19%

Arnendment of section 9 of the Act

Amendrnent of section 13of the Acr

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in terms ofsubsectìon (5») and an abstract in the prescribed form, and shall be accompanied by such fee as may be prescribed.

(2) (a) The request shall contain a petition that a patent be granted, the narne of and other prescribed information conceming the applìcant,meinventar andtheagent, if any, and the title of the invention.

(b) Where the applicant is not the inventar, the request shall be accompanìed by a staternent justifying the appli­ cant's right to the patent.

(3) The descrìptìon shall disclose me inventìon in a manner which ìs sufficiently clear and complete to pennit a person having ordinary skill in the art to carry aut the invention, and shall indicate at leastone mode known to the applicant in which the invention can be performed.

(4) (a) The claim or claims shall define the matter far which protectìon is sought, and the descriptìon and any drawings filed may be used to interpret such claim or clairns.

(b) The claìrns shall be clear and concise and shall be fully supported by the description,

(5) The Registrar may require an applicant to file draw­ ings where these are necessary for me understanding of the invention,

(6) The abstract shall not be taken into account for the purpose of interprcting the scope of the protection: it shall merely serve as technical informatìon.

(7) An applicant may, at any rime before the patent is granted, withdra w his applicatìon, H

Arnendrnent 5~ Section 22 of the Act is amended by substituting, therefor, the of section following new section ­ 22 of the Act

"Examination 22 (1) After according a filing date, the Registrar shall of applications examine whether the application complies with the re­

quirernents of section 13 (l) and (2) and the regulations pertaining thereto, and with those requirernents of this Act and the regulations which are designated by the regu­ lations as formal requirernents forthe purposes of this Act, and whether the information requested under section 20, if any ~ has been provided.

(2) Where the Registrar is ofthe opinìon that the appli­ catìon cornplies with the requirernents indicated in subsection (1), he shalI cause the application to be exam­ ined to determìne whether the clairned subject matter con­ stitutes an invenrion in terrns of section 2 and whether the requirernents of secuons 8,9,13(3),13(4),13(5) and 15, and the regulations pertaining thereto have been satis­ fied,

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(3) The Minister may, by regulations, preseribe the categories ofinventions in respeet ofwhich an examination under this section shall not cover the requirernents of novelty and inventive step."

6. Section 24 ofthe Act is amended by substìtuting, for subsection (3) (a) (ii) thereof, the following new subsection ­

"(ii) the use ofarticles on aircraft, land vehicles orvessels ofother countries which ternporarily or accidentally enter the air space, territory or waters of Botswana,".

7. Section 25 of'the Act is amended by inserting therein, irnrnediately after subsection (5) thcreof, the following new subsection­

44(6) Ca) In anyproceedings for infringemcnt, other than crirninal proceedings, where the subject matter of the patent ìs a process for obtaining a produce the burdcn of establishing that the product was not made by the process shall rest on the defendant if ­

(i) the product is new, or (ii) a substantial Iikelihood exìsts that the product was made by

the process and the owner of the patent has been unable, through reasonable efforts, to determine the process used.

Cb) In requiring the production of evidence, the court shall take into account the legitirnate ìnterests ofthc defendant in not dìsclos­ ing his manufacturing secrets."

8.. Section 35 of the Acr is amcnded by substituting, for thc words "section 22(2) which appear in subscction (2) thereof', the words "scction 22(3)".

9 .. Section 63 ofthe Act is amended by substituting, far the words "A person" whìch appear in subscction (1) thereof, the words "Any inter­ ested person",

IOe Section 80 of the Act is hereby repealed.

Il. Sectìon 81 of the Act is amended ­ (a) by insertìng, irnmediately aftersubsection(2) thereof, the follow­

ing new subsection ­ H(3A) For the purposes of the paymentof annua! maintenance fces for patents and patent applications, and of renewal fees for rcgis­ tered industrial designs under subscction (2) hercof, the reference to "me filing date" in sections 27 (2) and 49 (1) respectively, shall be construed as being a reference to the date of registration in Botswana."; and

Cb) by substituting, far subscction (4) thcreof, the following new subsection ­ B(4) A person v/ho, on the corning into entry of this Act­

(a) is the ownerofa patent granted in me United Kingdorn orthe Republìc of South Africa or has filed an application for the grant of a patent in the United Kingdom or the Republic of South Africa; or

Arnendment of section 24 of the Act

Amendment of section 25 of the Act

Amendrnent of section 35 of me Acl Amendrnent of section 63 of the Aci

Repeal of section 80 of ihe Aci Amendment of section 81 of the Act

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(b) is the owner of an industrial design registered in the United Kingdom or the Republic of South Africa has filed an applìcatìon for registration of anindustrial design in the Unìted Kingdom or the Republic of South Africa

may, within 20 months of the entry into force of this ACì, file an applicatìonfor thegrantof a patentfor the sameinventìon or forthe registratìon of the same industrial design under thìs Act and such application shall be accorded the filing date or priority date accorded to the application, grant or registration in the United Kingdom or the Republic of South Africa. H

PASSED by the National Assembly this 14th day of August, 1997.

C.T. MOMPEI, Clerk of the National Assembly,