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Legislative Implementation of Flexibilities - Democratic Republic of the Congo

Title:Articles 39 to 46 of the Law No. 82-001 of 07/01/1982 on Industrial Property
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

Art.39.Inventions and discoveries by Congolese nationals as well as those by foreigners residing in the Democratic Republic of Congo of particular significance for the national interest may be declared secret. They may concern any field, especially that of national defense and security.

Art.40.If an invention or discovery is declared secret, the applicant shall be informed accordingly, without delay, by registered letter. From this moment on, the grant of the corresponding patent or incentive certificate shall be suspended, in addition to its being prohibited, unless there is an express authorization:

1. to make public the invention or discovery which is the subject of the application for a patent or incentive certificate;

2.to disclose the industrial secret;

3.to file a corresponding patent application abroad. If, at the time of notification, the same invention has already been the subject of one or more patent applications abroad, the Congolese State shall solicit, under Articles 45 and 46, the postponement of the grant of the foreign patent;

4.to issue a copy of secret filings;

5.to exploit freely the secret invention or discovery.

Art.41.The authorization referred to in Article 40 shall be granted by means of a decree issued by the Minister responsible for industrial property or his delegate, on the advice of the Minister of the Ministry concerned.

Art.42.If they deem it necessary for the national interest, the Ministers of the Ministries concerned may temporarily organize the conditions for exploitation of the secret inventions or discoveries and those for implementation of the industrial secrets.

If it has been established that these measures are insufficient, they may temporarily ban the exploitation of the secret inventions or discoveries or the implementation of the industrial secrets; reserve temporarily and exclusively or not for the State the right to exploit an invention patent or an incentive certificate; or oblige the party concerned to assign to the State full knowledge of a nonpatented invention or industrial secret.

The provisions of Article 57 shall not apply to secret inventions and discoveries.

Art.43.Within a period of six months, starting from the date of filing of the application for a patent or an incentive certificate, the Minister(s) referred to in Article 41 shall decide on the secret filing and shall notify his/their decision to the applicant without delay.

This period may not be extended more than twice.

In the event of extension, the applicant shall be notified accordingly. If no decision has been taken by the expiration of the deadlines provided for in paragraphs 1 and 2 of this Article, the applicant shall be entitled to compensatory payment proportionate to the damage suffered.

Failing amicable agreement, such compensation, regardless of the amount, shall be set by the competent court, in accordance with this Law and its enabling measures.

Art.44.The author or holder of a secret invention or discovery shall receive fair compensation, with the amount and payment modalities to be determined by the enabling measures.

Art.45.Without prejudice to the provisions of Article 3 of this Law, reciprocity agreements may be concluded between the Democratic Republic of Congo and other States for the mutual safeguarding of the secrecy of inventions which are the subject of patent applications of interest for national defense or the security of their respective territories.

Art.46.In the event that, in accordance with Article 45, a reciprocity agreement has been signed with the Congolese State covering the disclosure of an invention which is the subject of a patent application, the Minister responsible for industrial property or his Delegate shall refrain, at the request of this State or that of the applicant – which shall establish proof of the intervention – from communicating this invention to the public and from issuing copies, as long as this prohibition is in force.

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