Legislative Implementation of Flexibilities - Samoa

Title:	Article 125 of the Intellectual Property Act of 11/10/2011
Field of IP:	Patents
Type of flexibility:	Criminal sanctions for patent infringement
Summary table:

Provisions of Law

125. Infringement-

(1) On the request of the owner of the right or the title of protection, or of a licensee if the licensee has requested the owner to institute court proceedings for specific relief and the owner has refused or failed to do so, the court may grant an injunction to prevent infringement, an imminent infringement, or an unlawful act and may award damages and grant any other remedy provided for in the general law.

(2) Any person who knowingly performs an act which constitutes an infringement in relation to any trade mark right or protection accorded by this Act, if committed wilfully or by gross negligence and for profit-making purposes, commits an offence and is liable on summary conviction to a fine of 1,000 penalty units or to imprisonment not exceeding five (5) years or both.

(3) For the purposes of proceedings, other than criminal proceedings, in respect of the violation of the rights of the owner of a patent or innovation patent, if the subject matter of the patent or innovation patent is a process for obtaining a product, the burden of establishing that a product was not made by the process is on the alleged infringer if either of the following conditions is fulfilled:

(a) the product is new;

(b) a substantial likelihood exists that the product was made by the process and the owner of the patent or innovation patent has been unable through reasonable efforts to determine the process actually used.

(4) In requiring the production of evidence, the court before which the proceedings referred to in subsection (3) takes place must take into account the legitimate interests of the alleged infringer in not disclosing manufacturing and business secrets.