National Industrial Property Service (SENAPI)
Democratic Republic of Sao Tome and Principe
(English translation by WIPO)
- 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 licenses 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.
Law No. 4/2001, namely the Law on Industrial Property (chapter II, article 3) is the legal standard used to determine whether an invention is patentable.
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.
Under the provisions of article 2.3 of the Law on Industrial Property, exclusions from patentability include:
discoveries, scientific theories or mathematical methods;
schemes, rules or methods of doing business, performing purely mental acts or playing games;
methods for the surgical or therapeutic treatment of the human or animal body, as well as diagnostic methods relating thereto.
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?
Under the provisions of paragraph 7.4 of the above-mentioned law, exclusive rights granted via a patent cover:
making, importing, offering for sale, selling, or using the product;
holding onto the product, in order to put it on the market, sell it or use it;
in cases where the patent concerns a process, the use of that process or any of the activities specified above relating to a product directly obtained by that process;
The law in question does not refer to the granting of exclusive rights from the date of publication of the patent application.
3. Which exceptions and limitations does the applicable law provide in respect to patent rights (please indicate the applicable exceptions/limitations):
Experimental use and/or scientific research;
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.-10.
[Note from the Secretariat: the applicable law of Sao Tome and Principe does not provide exceptions related to private and/or non-commercial use.]
Section 3: Experimental use and/or scientific research
11. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 8.4(c) of Law 4/2001
The protection afforded by a patent does not extend to acts relating to a patented invention for scientific research purposes.
12.-13.
No such provisions exist.
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:
Not applicable.
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 definition is provided.
16.-17.
[Note from the Secretariat: response was not provided.]
18. If the commercial intention of the experimentation and/or research is relevant to the determination of the scope of the exception, please indicate whether the exception covers activities relating to:
The commercial intention of the experimentation and/or research is not relevant.
19.-20.
No such provisions exist.
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:
There are no plans to amend current legislation.
22. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
No challenges have been encountered.
Section 4: Preparation of medicines
23.-30.
[Note from the Secretariat: the applicable law of Sao Tome and Principe does not provide exceptions related to the preparation of medicines.]
Section 5: Prior use
31. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 8.4(d) and 8.5 of Law No. 4/2001
The protection afforded by a patent does not cover acts performed by any person who, in good faith, and as at the filing date or the priority date when ownership is claimed for the basic application for which the patent was granted, was using the invention or making effective and serious preparations to use it, within the territory of the Democratic Republic of Sao Tome and Principe, as long as such acts, in their nature or purpose, do not differ from effective prior use or planned prior use .
Prior user rights may only be transferred to a company or association, or part of the company or association, where the invention was being used or where preparations had been made for its use.
32. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
No such provisions exist.
33. (a) What are the public policy objectives for providing the exception? Please explain:
Not applicable.
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
34. How does the applicable law define the scope of “use”? Does the applicable law provide for any quantitative or qualitative limitations on the application of the “use” by prior user? Please explain your answer by citing legal provision(s) and/or decision(s):
Although the law does not define the scope of use, under the provisions of article 8.4 of Law No. 4/2001, the term “use” is defined as follows:
The prior user must have used the invention in good faith.
The invention must have been used within the territory of the Democratic Republic of Sao Tome and Principe;
These actions should, in their nature or aim, not differ from effective prior use or planned prior use.
The invention must have been in use, or effective and serious preparations must have been made for its use, prior to the filing date or the priority date of the patent application.
35.-39.
No such provisions exist.
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:
To date, it has been considered adequate. There are no plans to amend current legislation.
41. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
No such challenges have arisen.
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):
Article 8.4(b) of Law No. 4/2001
The protection conferred by the patent does not cover the use of articles on board foreign aircraft, land vehicles or vessels which temporarily or accidentally enter the national airspace, national territory, or the territorial waters of the Democratic Republic of Sao Tome and Principe.
43. 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.]
44.(a) What are the public policy objectives for providing the exception? Please explain:
Not applicable
(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
Aircraft
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):
The law applies those terms but does not define them.
47.-48.
No such provisions exist.
49. s 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:
To date, the framework has been considered adequate, and there are no plans to amend current legislation.
50. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
No challenges have arisen in this respect.
Section 7: Acts for obtaining regulatory approval from authorities
51.-59.
[Note from the Secretariat: the applicable law of Sao Tome and Principe does not provide exceptions related to acts for obtaining regulatory approval from authorities.]
Section 8: Exhaustion of patent rights
60. Please indicate what type of exhaustion doctrine is applicable in your country in relation to patents:
National
International
If the exception is contained in statutory law, please provide the relevant provision(s):
Article 8.4 of Law No. 4/2001
The protection conferred by a patent does not cover acts relating to objects offered for sale in the Democratic Republic of Sao Tome and Principe by the patentee, or with their consent.
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:
Not applicable.
(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:
To date, it has been considered adequate.
64. Which challenges, if any, have been encountered in relation to the practical implementation of the applicable exhaustion regime in your country? Please explain:
No challenges have arisen in that respect.
Section 9: Compulsory licenses and/or government use
Compulsory licenses
65. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 7.6, 7.7 and 8.2 of Law No. 4/2001:
In cases where the public interest requires it, particularly with regard to national security, food, health or the development of other vital sectors of the national economy, the competent Ministry may decide that, even without the consent of the patentee, a third party appointed by the Ministry, in the service of the State, may “work” the patented invention, providing that compensation is paid to the patentee…
An appeal against the decision of the Ministry may be lodged with the Supreme Court of Justice, which will issue a final ruling on the matter.
If the patented invention is not sufficiently “worked” in the Democratic Republic of Sao Tome and Principe on an industrial scale, the patentee may be forced to accept the granting of a compulsory license to the interested party.
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
Public health
National security
Food and the development of other vital sectors of the national economy.
68.(a) What are the public policy objectives for providing compulsory licenses in your country? Please explain:
Not applicable
(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):
The law applies those terms but does not provide a definition.
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):
Yes, under the provisions of article 7.4 of Law No. 4/2001, the “working” of a patented invention involves any of the following:
(b) if the patent was granted by a process:
(I) using the process;
(II) performing the acts mentioned in a) relating to a product which is directly derived from the use of that process
The acts in (a) refer to:
(I) manufacturing, importing, putting on the market, selling or using the product.
(II) holding on to the product with the aim of putting it on the market, selling or using it.
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?
No
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?
No
73.-75.
No provisions exist.
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:
Yes. Under the provisions of article 7.6 of Law No. 4/2001, the competent Ministry may decide that, even without the consent of the patentee, a third party appointed by the Ministry, in the service of the State, may “work” the patented invention, provided that compensation is paid to the patentee.
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:
The law does not explicitly use the terms “national emergency” or “circumstances of extreme urgency”, but they are implicit in the provisions relating to national security and health contained in article 7.6 of the above-mentioned law. National security issues could include a military attack or war, and health risks could include the existence of an epidemic or similar situation.
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 applicable legal framework is considered adequate to meet the objectives sought, as the article refers to the granting of a compulsory license if that decision is in the public interest.
80. Which challenges, if any, have been encountered in relation to the use of the compulsory licensing system provisions in your country? Please explain:
No challenges have yet arisen.
Government use
81. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 7.6 and 7.7 of Law No. 4/2001
If it is in the public interest, particularly with regard to national security, food, health or the development of other vital sectors of the national economy, the competent Ministry may decide that, even without the consent of the patentee, a third party appointed by the Ministry, in the service of the State, may “work” the invention, provided that compensation is paid to the patentee. An appeal against the decision of the Ministry may be lodged with the Supreme Court of Justice, which will issue a final ruling on the matter.
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
Food and the development of other vital sectors of the national economy
84.(a) What are the public policy objectives for providing government use in your country?
No provisions exist
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
85. If the applicable law provides for the grant of government use 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:
The law does not explicitly use the terms “national emergency” or “circumstances of extreme urgency”, but they are implicit in the provisions relating to national security and health contained in article 7.6 of the above-mentioned law. National security issues could include a military attack or war, and health risks could include the existence of an epidemic or similar situation.
86. Please indicate how many times and in which technological areas government use has been issued in your country:
To date, it has never been authorized.
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 applicable legal framework is considered adequate to meet the objectives sought, as the article refers to the granting of a compulsory license if that decision is in the public interest.
88. Which challenges, if any, have been encountered in relation to the use of the government use mechanism in your country? Please explain:
No challenges have been encountered so far.
Section 10: Exceptions and limitations related to farmers' and/or breeders' use of patented inventions
89.-100.
[Note from the Secretariat: the applicable law of Sao Tome and Principe does not provide exceptions and limitations related to farmers’ and/or breeders’ use of patented inventions.]
Section 11: Other Exceptions and Limitations
101. Please list any other exceptions and limitations that your applicable patent law provides:
Inventions which are incompatible with public order or propriety.
102. In relation to each exception and limitation, please indicate:
(i) the source of law (statutory law and/or the case law) by providing the relevant provision(s) and/or a brief summary of the relevant decision(s):
Under the provisions of article 3.5 of Law No. 4/2001 – the Law on Industrial Property- inventions incompatible with public order or propriety cannot be patented.
(ii) the public policy objectives of each exception and limitation. Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
The aim is to maintain public order and propriety in the Democratic Republic of Sao Tome and Principe.
(iii) the entitlement and the scope of the exception and limitation by citing legal provision(s) and/or decision(s):
[Note from the Secretariat: response was not provided.]
In addition, in relation to each exception and limitation, please explain:
(i) whether its applicable legal framework is considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen?):
It is considered adequate to meet the objectives sought.
(ii) if there have been any challenges encountered in the practical implementation of the exception in your country:
No such challenges have been encountered to date.
103. If other mechanisms for the limitation of patent rights external to the patent system exist in your country (for example, competition law), please list and explain such mechanisms:
[Note from the Secretariat: response was not provided.]
[End of Questionnaire]
March 2012