RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/300
10  July 2001
(01-3440)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  French
REVIEW OF LEGISLATION
Responses by Congo to Questions Posed by Canada,
the United States, Japan and Switzerland
By means of a communication from the Permanent Mission of Congo, dated 21 June 2001,
the Secretariat has received the following responses to the questions posed by Canada, the
United States, Japan and Switzerland, which were circulated in documents IP/C/W/245, 238, 239 and
240, respectively.
_______________
CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS
Agreement) have been implemented.
The revised Congolese law (revised Bangui Agreement) contains provisions that are
consistent with Articles 41 to 61 of the TRIPS Agreement , particularly Articles 58 to 67 of Annex I
on patents of the Bangui Agreement:
• Article 58:  counterfeiting is punishable with a fine of CFAF 1,000,000 to 3,000,000
and one to six months’ imprisonment for second offences;
• Articles 61 and 62 define the conditions for initiation of criminal proceedings and the
competence of the criminal court;
• Article 64 defines the procedure of infringement seizure under a civil court order,
executed by a bailiff, assisted by customs officers and an expert, to identify and makea detailed inventory of allegedly infringing objects;
• Article [ ]:  the term for initiating substantive proceedings is ten working days from
the seizure or inventory;
• Article 66 defines the burden of proof for the infringer;
• Article 67 defines other sanctions for patent infringement:
- Confiscation or destruction of infringing objects and, where necessary, that of
tools specially intended for their manufacture;IP/C/W/300
Page 2
- handing over of the objects confiscated to the owner of the patent, without
prejudice to the right to further damages and the publication of the judgement,
when appropriate.
Other types of penalties established in the Bangui Agreement, which has the status of
Congolese law in the field of intellectual property, are:
Utility models (Annex II of the Bangui Agreement)
Article 37 Appropriation of a utility model involving signs, prospectuses, marks or stamps is
punishable with a fine of CFAF 1,000,000 to 3,000,000.
Article 41 Infringement of a utility model is punishable with a fine of CFAF 1,000,000 to
6,000,000.
Trademarks and service marks (Annex III)
Article 38 Fine of CFAF 1,000,000 to 2,000,000 and imprisonment of 15 days to six months.
Industrial designs (Annex IV)
Article 25 The fine for infringement of rights is CFAF 1,000,000 to 6,000,0000.Trade names (Annex V)
Article 16 Fine of CFAF 1,000,000 to 6,000,000 and im prisonment of three months to one year.
Geographical indications (Annex VI)
Article 17 Fine of CFAF 1,000,000 to 6,000,000 and im prisonment of three months to one year.
Lay-out designs (topographies) of integrated circuits (Annex IX)
Article 36 Fine for infringement of rights of CFAF 1,000,000 to 6,000,000.
Plant variety protection (Annex X)
Article 51 Fine of CFAF 400,000 to 1,000,000.
2. What protection does your Copyright legislation afford to "foreign works"?
This question relates to rule of national treatment. Article 2 of Law 24/82 on copyright and
neighbouring rights implicitly raises the principle of national treatment.  However, Article 3 places a
condition on the use of foreign works that do not benefit from protection under the said law, to theeffect that the user must submit a prior declaration to the professional authors’ association (Bureau
Congolais du Droit d'Auteur - BCDA) and pay royalties under conditions similar to those that apply
to protected works.  This measure can be explained by the destination of these royalties as stipulated
in paragraph 2 of Article 3, but it is also intended to prevent users from finding pretexts for not paying
royalties.IP/C/W/300
Page 3
UNITED STATES
A. GENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which national treatment and
most-favoured-nation treatment are provided to nationals of other WTO Members.
Copyright and related rights
Articles 1 and 2 of the Law are clear on copyright and related rights, as is Article 5.
Industrial property
The principle of national treatment, as defined in Article 3 of the TRIPS Agreement states
that "Each Member shall accord to the nationals of other Members treatment no less favourable than
that it accords to its own nationals with regard to  the protection of intellectual property…".  In other
words, nationals and foreigners from WTO Member countries have the same obligations regardingapplication procedures.
This requirement is established in the revised Bangui Agreement in the following articles:
- Article 4 of Annex III on trademarks and service marks stipulates that foreigners shall
enjoy the benefits of this Annex if they fulfil the conditions imposed by it;
- Article 3 of the revised Bangui Agreement, which permits trademark applicants to
claim application for their benefit of the provisions of the TRIPS Agreement.
With respect to the most-favoured-nation principle, Article 4 of the TRIPS Agreement states
that any advantage, favour, privilege or immunity granted by a Member to the nationals of any other
country shall be accorded immediately and unconditiona lly to the nationals of all other Members, with
respect to penalties for infringements imposed by the country’s courts.
This provision is established in the following articles of the Bangui Agreement:
- Article 3.2 of the revised Bangui Agreement gives owners the right to claim
application for their benefit of the provisions of the TRIPS Agreement;
- Articles 47 and 51 of Annex X (plant variety protection) on usurpation and fraud,
respectively, where the term “any person” exempts no one and places nationals andforeigners on the same footing before the courts with respect to advantages, favours
and privileges.
B. 
COPYRIGHT AND RELATED RIGHTS
2. Please explain whether and how the Copyright Law of Congo complies with Article 9 of
the TRIPS Agreement requiring that Members co mply with all Articles 1 through 21 of the
Berne Convention (1971), except Article 6 bis, since Members do not have rights or obligations
relating to the latter Article under the TRIPS Agreement.
Congolese law complies with Article 9, since Title II deals with protected and derivative
works - Articles 6, 7, 8, 9, 10, 11, 12, 13 and 14.  Articles 21 to 27 deal with cinematographic works.IP/C/W/300
Page 4
Title III deals with economic rights, moral rights and the ownership of copyright.  Title IV
contains provisions on neighbouring or related rights.
3. Please explain how the Copyright Law of Congo protects computer programs as literary
works and compilations of data as required by Article 10 of the TRIPS Agreement.
Congo’s Law, which dates back to 1982, does not deal explicitly with computer programs.
However, they are assimilated as literary works under Articles 7 and 8.  Article 8 clearly permits the
inclusion of works of this kind under the law: "works shall be protected irrespective of their quality,
their purpose, their mode or their form of expression …".
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs
and cinematographic works be available.  Please  cite to the corresponding provision of the
Copyright Law of Congo.
Congolese law does provide for rental rights for computer programs or cinematographic
works.
5. Please state the length and terms of protection the Copyright Law of Congo provides
for a work other than a photographic work or a work of applied art and cite to the relevant
provision of law.
Copyrights are protected for the lifetime of the author and for 50 years after his death.  In the
case of a work of joint authorship, rights are protected for the lifetime of the last surviving joint author
and for 50 years after his death.  Other cases are covered in Articles 63 and 64.  Articles 28 and 29
deal with the terms of protection.
6. Please describe the protection the Copyright Law of Congo provides for performers, and
the term of the protection.
Articles 86 et seq. protect performers and Article 89 establishes a term of 20 years.
7. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to
enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
Article 14.2 requires that producers of phonograms are to have the right to authorize or
prohibit the commercial rental to the public of originals or copies of their phonograms.  Please
describe how the Copyright Law of Congo implements these obligations and indicate the term
of protection.
Articles 93 and 94 of Congo’s Copyright Law stipulate that producers of phonograms shall
enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
However the Law does not provide for commercial rental.
C. TRADEMARKS
8. Please describe the subject matter that can comprise a trademark under the Trademark
Law of Congo.
Under Article 2, Annex III, of the revised Bangui Agreement, trademarks are defined as any
visible sign used or intended to be used and capable of distinguishing the goods or services of anyenterprise, including in particular surnames by themselves or in a distinctive form, special, arbitrary or
fanciful designations, the characteristic form of a product or its packaging, labels, wrappers, emblems,IP/C/W/300
Page 5
prints, stamps, seals, vignettes, borders, combinations or arrangements of colours, drawings, reliefs,
letters, numbers, devices and pseudonyms.
9. Please describe the procedure that must be followed to register a trademark in Congo,
citing the relevant provisions of the law, and de scribe the rights that the owner of a registered
mark can exercise.
The procedure for registering a trademark is established in Articles 8, 9, 10 and 11 of
Annex III.  Article 8 states that "Any person wishing to obtain the registration of a mark shall file with
the Organization or with the ministry responsible for industrial property, or send by registered mail a
request" that includes:
Content of the file
(a) Form M301, containing the following requisite information:
• Full address, domicile and nationality of the applicant;
• a reproduction of the mark;
• colour claim, where applicable;
• the list of goods or services;
• the classification of goods or services – under the present AIPO system, a distinction
is drawn between goods and services;
• the address of the agent, where applicable;
• the date, number and country of the previous filing if priority has been claimed;
• the date of the application, signature and seal of the applicant or agent.  If the
applicant is a legal entity, the identity and title of the signatory must be specified;
• the means of paying fees and an itemized account of said fees.
(b) a document proving payment of the prescribed fees;
(c) an unstamped, private power of attorney, if the applicant is represented by an agent;(d) reproduction of the mark on form M301, where applicable;(e) the document authorizing priority, where applicable.
The priority rights attached to an earlier filing must be claimed at the time the application is
made or within the following three months.
How to apply
Applications by Congolese residents are filed indirectly. The application is transmitted to
AIPO by post, accompanied by a letter signed by th e Minister of Industry.  Applications by persons
who are not residents of Congo are made through a certified agent residing in one of the AIPO
member States.
Issue of the registration certificate
It takes about seven months after the application is made for the registration certificate to be
issued, after a conclusive examination.IP/C/W/300
Page 6
The rights conferred on the owner of a registered mark are defined in Article 7 of Annex III
on trademarks of the Bangui Agreement, as follows:
- Registration of a mark confers on its owner the exclusive right to use the mark, or a
sign resembling it, in connection with the goods or services for which it has beenregistered and similar goods or services.
- Registration of the mark likewise confers on the owner the exclusive right to prevent
all third parties from making use in business without his consent, of identical or
similar signs for goods or services that are themselves similar to those for which the
trademark or service mark has been registered where such use is liable to cause
confusion.  Where an identical sign is used for identical goods and services, a risk ofconfusion shall be presumed to exist.
- Registration of the mark does not confer on its owner the right to prohibit a third
party from making use in good faith of his name or address, a pseudonym, a
geographical name or accurate information concerning the nature, quality, quantity,purpose, value, place of origin or time of production of his goods or rendering of his
services in so far as the use in question is limited to the purpose of mere identification
or information and cannot mislead the public as to the source of the goods or services.
- Registration of a mark does not confer on its owner the right to prohibit a third party
from making use of the mark in relation to goods that have been lawfully sold under
the mark on the national territory of the member State in which the right of
prohibition is exercised, on condition that the goods have not undergone any
alteration.
10. Please provide the length and terms of protection that the Trademark Law of Congo
provides for a trademark.
Article 19, Annex III, of the Bangui Agreement stipulates that the registration of a mark shall
be valid for ten years from the filing date of the ap plication for registration.  However, the ownership
of the mark may be preserved indefinitely through successive renewals of the registration, which may
be effected every ten years.
D. 
GEOGRAPHICAL INDICATIONS
11. Please describe in detail how the laws of Congo provide for the recognition and
protection of geographical indications required by Article 22.2 of the TRIPS Agreement, citing
to the relevant provisions of law or regulation, and provide examples of geographicalindications so protected.
As required in Article 22.2 of the TRIPS Agreement, Articles 15, 16 and 17 of Annex III of
the Bangui Agreement define the conditions for preventing unlawful use of protected geographical
indications and the civil and criminal actions that can be brought to prevent unfair competition orunlawful use of protected geographical indications.
Geographical indications are protected if they have been registered by the African Intellectual
Property Organization (AIPO) or are to be treated  as having been registered by virtue of an
international convention to which the member States are party (Title II, Article 4, Annex VI, of theBangui Agreement).IP/C/W/300
Page 7
Geographical indications foreign to the territories of the member States of the AIPO may be
registered by the Organization only where provided for in an international convention to which the
member States are party or in the enforcing legislation.
The following are not protected as geographical indications:(a) Indications which do not correspond to the definition in Article 1(a);
(b) indications which are contrary to morality or public policy or those which, in
particular, are liable to deceive the public as to the nature, the source, the
manufacturing process, the characteristic qualities or the suitability for their purpose
of the goods concerned;
(c) indications which are not protected in their country of origin or have ceased to be
protected or have fallen into disuse in that country.
12. Please describe in detail the manner in which the higher level of protection required for
wines and spirits under Article 23.2 of the TRIPS Agreement is implemented, citing to the
relevant provisions of law or regulation, and provide examples of geographical indications for
such products.
With respect to the protection of wine and spirits under Article 23.2 of the TRIPS Agreement,
Congolese legislation contains a special provision on them in Articles 15 and 17 and, in particular, in
Article 15.6, Annex VI, of the Bangui Agreement.
E. 
INDUSTRIAL DESIGNS
13. Please describe the procedure that must be followed to obtain protection for industrial
designs, citing to the provisions of the law of Congo, and describe the nature of the protection
provided.
Article 8, Annex IV, defines the procedure for fi ling for registration of industrial designs, as
follows:
Any person wishing to have an industrial design registered shall file or mail to the Director
General of AIPO through the ministry responsible for industrial property, or send through an agent, an
application that includes:
(a) Form DM 401, containing the following requisite information:
• Full address, domicile and nationality of the applicant;
• name and address of the agent, where applicable;
• a precise description of the product in which the design is to be incorporated;
• the class of products;
• the date, number and country of the previous filing, if priority has been claimed;
• the date of the application, signature and seal of the applicant or agent.  If the
applicant is a legal entity, the identity and title of the signatory must be specified;
• the means of paying fees and an itemized account of said fees.
(b) A document proving payment of the prescribed fees;
(c) an unstamped, private power of attorney if the applicant is represented by an agent;IP/C/W/300
Page 8
(d) a sealed package containing two identical copies of a graphic or photographic representation
of the design;
(e) the document authorizing priority, where applicable.
14. Please describe the procedure that must be followed to obtain protection for textile
designs and cite to the relevant provisions of law or regulation .
Congolese law does not contain any specific provision concerning the protection of textile
designs exclusively.
F. PATENTS
15. Please describe in detail the way in which the Patent Law of Congo implements
Article 27 of the TRIPS Agreement, indicating  any exceptions provided for, and including
details regarding the protection for micro-organisms and non-biological and microbiological
processes and plant varieties.  Please cite to the relevant provisions of the law.
Annex I on patents (Articles 2, 3, 4, 5 and 6) of the Bangui Agreement implements Article 27
of the TRIPS Agreement.
16. Please describe in detail the rights provided patent holders under the Patent Law of
Congo and cite to the relevant provisions of law.
Rights conferred by patents are mentioned in Article 7, Annex I, of the Bangui Agreement, in
particular:
- The exclusive right to work the patented invention;
- the right to prohibit any person from working the patented invention.
Working is defined as follows:- Where the patent has been granted for a product:
• manufacturing;
• importing;
• offering for sale;
• selling.
- Where the patent has been granted for a process:
• using the process, including the acts mentioned above.
17. Please describe in detail any provisions in  the laws of Congo permitting unauthorized
use of a patent, citing to the relevant provisions of law, and describe in detail the conditions
under which such use can occur.
The Bangui Agreement permits the unauthorize d use of a patent under non-voluntary licences
(see the answer to question A, 3).IP/C/W/300
Page 9
18. What term of protection does the Patent Law of Congo provide for patents?  Please
describe any provisions for extension of the term of protection and cite to the relevant
provisions of the law.
Under Congolese legislation (the Bangui Ag reement) Articles 9, 40 and 68 of Annex I
establish that the term of the patent is 20 years counted from the date of application.
Congo’s law does not provide for any extension of the 20-year term of protection.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
19. Please describe in detail the protection  for lay-out designs of integrated circuits
provided under the laws of Congo, including the term of protection, and cite to the relevantprovisions of law.
Annex X of the revised Bangui Agreement contains 38 articles on protection for lay-out
designs (topographies) of integrated circuits.  The term of protection is ten years from the date on
which it took effect (date of the first commercial exploitation of the lay-out design) on condition thatthe application for protection is filed by the owner of the design.
H. 
UNDISCLOSED INFORMATION
20. Please describe in detail how the laws of Congo provide for the protection of undisclosed
information as required by Article 39.2 of the TRIPS Agreement and provide citations to therelevant provisions of law.
Article 6, Annex VIII, of the revised Bangui Ag reement contains general provisions for the
protection of undisclosed information in the fram ework of unfair competition involving confidential
information, particularly disclosure, acquisition or commercial use by third parties without theconsent of the lawful holder.  The Agreement does not establish a term for the protection of
undisclosed information.
21. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical prod ucts submitted to the government in order to
obtain marketing approval in Congo and ci te to the relevant provisions of law.
Questions 21 and 22 are dealt with in the general framework of protection from unfair
competition.
22. Are other applicants for ma rketing approval for their own versions of a previously
approved pharmaceutical or agricultural chemical products permitted to rely on data submittedby the earlier applicant?  If so, how long a period of exclusivity is given the earlier applicant
before such reliance becomes possible.
Questions 21 and 22 are dealt with in the general framework of protection from unfair
competition.
I. 
ENFORCEMENT – GENERAL OBLIGATIONS , CIVIL AND ADMINISTRATIVE PROCEDURES AND
REMEDIES AND PROVISIONAL MEASURES
23. Please describe in detail the manner in wh ich the laws of Congo provide for effective
action against infringement of intellectual prop erty rights as required by Article 41.1 of the
TRIPS Agreement.IP/C/W/300
Page 10
Annex I, Title V, Article 58 (infringement) of the Bangui Agreement deals with enforcement
of intellectual property rights as required by Article 41 of the TRIPS Agreement.  The offence of
infringement is punishable with a fine of CFAF 1,000,000 to 3,000,000.
Article 64 (infringement seizure) provides for the engagement of a bailiff and an expert to
make a detailed inventory and description, with or wi thout seizure, of the allegedly infringing objects.
With respect to marks, enforcement of rights is  established in Title VII, Article 48, Annex III,
of the Bangui Agreement, which provides for infringement seizure.
Enforcement of rights with respect to industria l designs is also provided for, in Title V,
Article 25, Annex IV, which establishes penalties for infringement, involving fines of CFAF 100,000
to 600,000.
24. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order
production of evidence necessary to substantiate a party’s claims where that party has beenunable to obtain such evidence from the opposi ng party.  Please describe how the laws or
regulations of Congo provide this authorization, citing to the relevant provisions of law or
regulation.
Article 43.1 of the TRIPS Agreement introduces a new provision whereby judges have the
authority to order the production of evidence.  The Bangui Agreement has no equivalent provision.
Our government could consider legislating this aspect in future.
25. Please describe in detail all of the civil remedies that are available to right holders under
the laws of Congo, citing to the relevant provisions of law or regulation.
The civil remedies available to right holders are established in Article 64 concerning
infringement seizure by a bailiff in the presence of an expert.  These two articles relate to patents, but
can also be used for distinctive signs.
26. Please describe in detail the provisional procedures and remedies available to right
holders under the laws of Congo, citing to the relevant provisions of law and regulation, andindicate any condition under which a right holder may avail itself of those procedures and
remedies.
In general, remedies take the form of infringement seizure  and criminal action, which consists
of imprisonment or fines. Holders of licences may also protect their rights by summoning the ownerof the patent to bring the necessary judicial actions for civil or criminal sanctions for any violation of
rights under that patent, as established in Title IV, Article 54, of the Bangui Agreement.
J. 
ENFORCEMENT - SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
27. Please describe in detail the procedures under the laws of Congo that provide for border
enforcement at least for trademark counterfe iting and copyright piracy, identifying the
competent authority and citing to the re levant provisions of law or regulation.
The Bangui Agreement does not provide for border enforcement, although many of its
annexes mention the offence of infringement, which consists of introducing counterfeit products intothe country.IP/C/W/300
Page 11
As for copyright, Articles 62, 63 and 64 of Annex VII describe the powers of customs officers
to enforce industrial property rights at borders.
28. Please indicate if border enforcement is available to owners of other forms of intellectual
property and, if so, please describe the procedures and remedies available in relation to eachform of intellectual property, citing the relevant provisions of law.
The other recognized form of intellectual property is literary and artistic property, copyrights
under Annex VII of the Bangui Agreement, which gives customs officers the authority to act
(Article 62).
29. Article 58 of the TRIPS Agreement specifies procedures to be followed where the
competent authorities can act ex officio.  Plea se explain whether the competent authorities in
Congo are empowered to act ex officio and, if s o, please identify the intellectual property areas
subject to ex officio action.
As required in Article 58 of the TRIPS Agreement, Article 56 of Title IV on patents of the
Bangui Agreement establishes the conditions under which ex officio licences may be obtained by
government authorities for reasons of vital interest  to the economy, public health or national defence,
or where non-working or insufficient working of such licences seriously compromises the satisfaction
of the country's needs.
Article 46 of Title IV on non-voluntary licences also reflects the intent of the lawgivers to
empower the government to act ex officio.
K. 
ENFORCEMENT - CRIMINAL PROCEDURES
30. Please describe in detail how the laws of Congo implement Article 61 of the TRIPS
Agreement that requires Members to have criminal procedures and penalties, including
imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful
trademark counterfeiting and copyright infringement  on a commercial scale.  Please cite to the
relevant provisions of law and regulation.
Criminal procedures and penalties are establis hed in Articles 58, 59 and 67 of Annex I on
patents.  For example, Article 37 of Annex III on trademarks and service marks punishes unlawful useof a registered mark by a fine of CFAF 1,000,000 to 6,000,000 and with imprisonment for a term of
three months to two years.
Mention can also be made of Article 64 on copyright.
31. Article 61 also requires that remedies in a ppropriate cases include the seizure, forfeiture
and destruction of infringing goods and any materials and implements the predominant use of
which has been the commission of the offence.  Please describe the provisions in the laws of
Congo that provide for such remedies, and describe the circumstances in which those remedies
would be imposed, citing to the relevant provisions of law or regulation.
Article 58 of Title V on infringement, legal proceedings and penalties of the Bangui
Agreement defines infringements.  Article 64 on infringement seizure  establishes the conditions
governing operations in the presence of bailiffs or public or ministerial officials, including customs
officials.  Article 64 also establishes that infringement seizure  is carried out in pursuance of an order
from the president of the civil court.IP/C/W/300
Page 12
32. Article 61 also indicates that Members may provide for criminal procedures and
penalties in cases of wilful infringement of oth er forms of intellectual property.  Please describe
any provisions of the laws of Congo that provide for such procedures and remedies, citing to the
relevant provisions of law or regulation.
The other form of intellectual property rights is copyright, whose infringement is dealt with in
Article 64 of Annex VII on criminal penalties.  Unde r the Code of Criminal Procedure, infringements
of protected rights are punished by imprisonment or a sufficiently dissuasive fine, or both.
The courts can double the upper limit of the penalties:- Order the confiscation and destruction of the infringing works and the equipment that
has served to commit the infringement;
- order publication of the sentence at the expense of the person sentenced.
L. 
STATISTICAL QUESTIONS
33. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated circuit lay-out design, and trade secret
enforcement for 2000, including the number of ca ses filed;  injunctions issued;  infringing
products seized;  infringing equipment seized;  cases resolved (including settlement);  and the
amount of damages awarded.
Congo does not have statistical information for 2000 on civil or criminal cases involving
industrial property.
34. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringeme nt for 2000, including the number of raids,
prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines
were paid and whether the jail term was actually served or was suspended) and any other
information establishing that the criminal syst em operates effectively to deter copyright piracy
and trademark counterfeiting.
Congo does not have statistical information for 2000 on civil or criminal cases involving
industrial property.
JAPAN
A. COPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of  the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
Article 2 of Law 24/82 on copyright and neighbouring rights implicitly raises the principle of
national treatment.  However, Article 3 places a condition on the use of foreign works that do not
benefit from protection under the said law, to the effect that the user must submit a prior declaration to
the professional authors’ association ( Bureau Congolais du Droit d'Auteur - BCDA) and pay royalties
under conditions similar to those that apply to protected works.  This measure can be explained by the
destination of these royalties as stipulated in paragraph 2 of Article 3, but it is also intended to preventusers from finding pretexts for not paying royalties.IP/C/W/300
Page 13
SWITZERLAND
A. PATENTS
1. In your law, are patents available for all categories of products?  In particular, are all
pharmaceutical products patentable?  Are there any exceptions?  If so please explain in detail
what these exceptions are and how they comply with Article 27 of the TRIPS Agreement.
(a) Congolese law (the Bangui Agreement) esta blishes a category of products that are not
patentable.  They are listed in Article 6, Annex I, which stipulates that, in addition to inventions the
exploitation of which is contrary to public policy or morality, patents shall not be granted for:
(i) Discoveries;
(ii) scientific theories and mathematical methods;
(iii) inventions having as their subject-matter plant varieties, animal species and
essentially biological processes for the breeding of plants or animals;
(iv) schemes, rules or methods for doing business, performing purely mental acts or
playing games;
(v) methods for the treatment of the human or animal body by surgery or therapy,
including diagnostic methods, mere presentations of information, computer programs,
works of an exclusively ornamental nature, literary, architectural and artistic works or
any other aesthetic creation.
(b) All pharmaceutical products are patentable, provided the invention meets the three requisites
for patentability mentioned in Title I, Articles 2, 3, 4 and 5, of the Bangui Agreement, i.e. it must be
new, involve an inventive step, and be industrially applicable.
(c) The patentability conditions of the Bangui Agreement conform to Article 27 of the TRIPS
Agreement.
2. Does your law, in accordance with Article 27.1 in combination with Article 31 of the
TRIPS Agreement, consider importation as "working a patent" (and therefore precludecompulsory licensing, if a product is being imported)?
The Bangui Agreement does not contain any provision that considers importation as working
a patent.
3. Does your law make compulsory licences s ubject to all the conditions enumerated in
Article 31 of the TRIPS Agreement?  Please cite the relevant provisions of law.
With respect to compulsory licences, the Bangui Agreement provides for:
- Non-voluntary licences for non-working (Article 46);
- non-voluntary licences for dependent patents (Article 47);- ex officio  licences (Article 56, Annex I, of the Bangui Agreement).
Non-voluntary licences for a patent that it is not worked in the territory of a member State can
be granted four years after the filing date of the patent application.IP/C/W/300
Page 14
Non-voluntary licences can be granted for dependent patents when part of the protected
invention infringes the rights under an earlier pa tent whose owner refuses to authorize its use on
reasonable commercial terms and procedures.
Ex officio licences are granted where the patent is of vital interest to the country’s economy,
public health or national defence or where the non-working or insufficient working of such patents
seriously compromises the satisfaction of the country's needs.
4. Does your legislation provide for the principle of the reversal of burden of proof in a process
patent litigation? Please cite the relevant provisions of law.
Article 66, Annex I, of the Bangui Agreement provides for the reversal of the burden of proof,
stipulating that: "... if the subject-matter of the patent is a process for making a product, the judicial
authority shall be authorized to order the defendant to prove that the process used to make an identical
product is different from the patented process in one of the following situations:
(a) The product made by the process is new;(b) there is a strong probability of the identical product having been made by means of
the process and of the owner of the patent having been unable, in spite of reasonable
effort, to establish what process was actually used".
B.
PROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market
authorisation of a pharmaceutical or of an agricultural chemical product is protected against
disclosure and against unfair commercial use by a competitor, for example by prohibiting asecond applicant from relying on, or from referring to the original data of the first applicant,
when applying subsequently for market authorization for his own product.  Does your
legislation provide for exceptions to this?  If yes, under what conditions would such exceptions
apply?  Does your legislation set a specific term of protection for undisclosed test or other data
of the first applicant?
Article 6, Annex VIII, of the revised Bangui Agreement protects undisclosed information in
the framework of unfair competition involving confidential information, particularly against
disclosure, acquisition or commercial use by third parties without the consent of the lawful holder.
The agreement does not establish a specific term of protection.
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