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Legislative Implementation of Flexibilities - African Intellectual Property Organization

Title:Articles 58 to 65 and 67 of Annex I on Patents of the Bangui Agreement
Field of IP:Patents
Type of flexibility:Criminal sanctions for patent infringement
Summary table:PDF

Provisions of Law

Article 58 Infringement

Subject to the provisions of Articles 8 and 46 to 56, any violation of the rights of a patentee by the use of means forming the subject matter of his patent, by the receiving or sale or display for sale or by the introduction into the national territory of one of the member States of one or more objects shall constitute the offense of infringement. That offense shall be punished with a fine of 1,000,000 to 3,000,000 CFA francs, without prejudice to the right to compensation.

Article 59 Recidivism and Aggravating Circumstances

(1) In the event of recidivism, imprisonment for a term of one to six months may be imposed in addition to the fine specified in Article 58.

(2) Recidivism shall be deemed to have occurred when, within the preceding five years, the defendant has received a first conviction for one of the offenses provided for in this Annex.

(3) Imprisonment for a term of one to six months may also be imposed if the infringer is a worker or employee who has worked in the workshops or establishment of the patentee, or if the infringer, having joined a worker or employee of the patentee, has become acquainted through him with the processes described in the patent.

(4) In the latter case, the worker or employee may be prosecuted as an accomplice.

Article 60 Extenuating Circumstances

The provisions of the national legislation of member States on extenuating circumstances shall apply to the offenses provided for in this Annex.

Article 61 Condition for Initiation of Criminal Proceedings

Criminal action seeking the imposition of the above penalties may only be brought by the Office of the Public Prosecutor on a complaint by the injured party.

Article 62 Exceptional Competence of the Criminal Court

The criminal court, when dealing with an action for infringement, shall rule on the arguments put forward by the accused in his defense, such as the alleged invalidity or forfeiture of the patent or questions relating to ownership of the said patent.

Article 63 Acts Prior to Grant

Acts occurring prior to the grant of a patent shall not be considered prejudicial to the rights of the patentee and may not be invoked to justify conviction, even under civil law, with the exception however of acts subsequent to the communication to the alleged infringer of an official copy of the description of the invention attached to the patent application.

Article 64 Infringement Seizure

(1) Owners of patents may, acting in pursuance of an order from the president of the civil court within whose jurisdiction the action is to be taken, engage bailiffs or public or ministerial officials, including customs officials, if necessary with the aid of an expert, to make a detailed inventory and description, with or without seizure, of allegedly infringing objects.

(2) The order shall be made on request and on presentation of the patent.

(3) Where seizure is involved, the said order may require the complainant to furnish security, which he shall be required to provide before seizure is effected. The security shall be sufficient but not such as would discourage recourse to the procedure.

(4) Security shall always be required of foreigners seeking seizure.

(5) The person in possession of the objects described or seized shall be given a copy of the order and, where appropriate, of the document attesting the deposit of security, on pain of invalidity and damages against the bailiff or the public or ministerial official or the customs official, as the case may be.

Article 65 Time Limit for Initiating Substantive Proceedings

Should the complainant fail to take action under either civil or criminal law within a period of 10 working days from the seizure or inventory, the said seizure or inventory shall become void as of right, without prejudice to any damages that may be claimed.

Article 67 Other Sanctions

(1) The confiscation or destruction of recognized infringing objects and, where necessary, that of implements or tools specially intended for their manufacture shall, even in the case of acquittal, be ordered against the infringer, the receiver, the introducer or the retailer.

(2) The objects confiscated may be handed over to the owner of the patent, without prejudice to the right to further damages and publication of the judgment, where appropriate.

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