RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/232/Add.6
5 November 2001
(01-5415)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Replies from Kuwait to follow-up questions posed by
the European Communities and their member States and Switzerland
Addendum
By means of a communication from the Permanent Mission of Kuwait dated 31 October
2001, the Secretariat has received copies of the fo llowing responses to follow-up questions posed by
the European Communities and their member States and Switzerland, which were circulated indocuments IP/C/W/219/Add.3 and 207/Add.3, respectively.
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EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
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B. C OPYRIGHT AND RELATED RIGHTS
Follow-up to question 8:
Please clarify how, and under what provision, Kuwait legislation grants the retroactive
protection provided pursuant to Article 14.6 of the TRIPS Agreement to works and othersubject-matter that are still under protection in their country of origin.
The Kuwaiti Law No. 46/1999 relating to intellectual property rights contains many articles
that are equivalent to paragraph 6 of Article 14 of the TRIPS Agreement pertaining to the protection
by the Kuwaiti Law No. 64/1999 relating to inventive classifications as well as protection forperformers, producers of phonograms (sound recordings) and broadcasting organizations.  We find
them all protected under the following Articles 5, 15, 17, 43 and 44.
Article 5
The author's right of utilization includes the following:
A. The reproduction of the literary work in whatever form.B. The presentation of the work to the public through public performance, theatrical
performance, radio transmission, TV or cinema shows or by any other means.
                                                     
1 These responses supplement Kuwait's responses to initial and follow-up questions posed by the
European Communities and their member States circ ulated in document IP/C/W/232 and Add.1, 2 and 4.IP/C/W/232/Add.6
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C. The translation of the literary work into any other language or its amendment,
summarization, explanation or modification into any other form.
Article 15
Performing artists such as actors, singers, musicians and others are entitled to have a
performance attributed to them in the form in which they performed it.  They are also entitled
to the financial proceeds from their performance whether through presenting their
performance to the public or by making available to the public the original recordings of the
performance or copies thereof or the rental thereof or by making their public performance
available to the public through radio or computer.  Radio stations are entitled to the financial
right of a license to use their recorded mate rials and to prevent any utilization of their
programs without prior written permission from them.
Article 17
Without prejudice to the provisions of the preceding article the protection of author's
rights of finance utilization shall expire;  First: Upon the lapse of fifty years after the death of
the author.  This period shall be calculated in the case of joint works as of the date of death of
the last surviving author, specifically as of the end of the calendar year in which the death
occurs.
The author is solely entitled to utilize his work financially in any manner and third
parties may not exercise this right unless under prior written permission from him or his
successor.
Article 43
Without prejudice to the provisions of the international conventions effective in the
State of Kuwait, the provisions of this law shall be operative upon the following:
A. The work of authors, citizens of the State of Kuwait, which are published at home or
abroad.
B. Works of Arab authors of member states in the Arab Agreement of protection of
Author's rights, which are published in one of these states.
C. Literary works of foreign authors which are published for the first time in the State of
Kuwait.
D. Literary works of authors, citizens of member states in the agreement of world
organization of intellectual rights, which shall be published for the first time in one of
these countries.
Article 44
The provisions of this law shall be effectiv e as to works referred to in the previous
article existing in the operative date.  Provided that concerning the calculation of the period of
protection of these works, the lapsed period should be included, from the date of incidentspecifying the start of period effectiveness till the date of operating this law.
The provisions of this law shall be effe ctive as to all incidents and the following
contracts of its effective date, once the same is related to works published or shown or
represented before that concerning contracts made before the effectiveness of this law, itsIP/C/W/232/Add.6
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provisions are not effective, rather, the same remain subject to legal provision which were
effective at the time of its completion.
D. G EOGRAPHICAL INDICATIONS
Follow-up to question 14:
Please describe how, and under what provisions of your legislation, the requirements of
Articles 22.3 of the TRIPS Agreement are implemented.
Section 3 of Article 62 of Law No. 1/2001 stated the following :
"A trademark is not valid and therefore cannot be registered as such if:
It leads to the public or commercial sector's confusion, especially as to the geographical origin
of the goods or the concerned services or its nature and characteristics."
SWITZERLAND2
A. P ATENTS
Follow-up to question 1:
(a) In your answer, you mention that according to your legislation patents shall not be granted in
for chemical inventions relating to foodstuff s, medicines and pharmaceutical formula unless
such products are made by special chemical methods or processes.  How does this comply
with Article 27.1 of the TRIPS Agreement requir ing patents to be available for inventions,
whether products or processes, in all fields of technology?
(b) You mention that in your legislation amendments are currently undertaken with regards the
issue of patentability.  Please indicate what the contents of these amendments will be.
The answer previously mentioned was based on the old law.  The new law for patents is
Law No. 3/2001 which stated that a patent may be granted for a product that is used in method of
manufacturing (process).  Which means that the product and the process can be granted a patent
(Article 1 of the law), which stated the following:
"Patents are granted based on this law for any new invention that can be used in
manufacturing, whether it is related to new industrial products or new industrial processes or
new application to known industrial processes."
Follow-up to question 2:
Please confirm whether in your law, in accordance with Article 27.1 of the TRIPS Agreement
in combination with Article 31 of the TR IPS Agreement, importation is considered as
"working/utilising a patent" (and therefore precluding compulsory licensing, if a product is beingimported).
Article 29 addressed the issue of the appropriation of a patent for the benefit of the general
public and the need of the state, while preserving the rights of the patent's owner.
                                                     
2 These responses supplement Kuwait's responses to questions posed by Switzerland circulated in
document IP/C/W/232 and Add.1.IP/C/W/232/Add.6
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Follow-up to question 3:
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.
The Ministry of Commerce & Industry has a specialized department in trademark registration.
Registration does not take place until all the necessary information has been found to be correct, in
case a trademark was registered based on false information, the trademark will be cancelled and if it
was proven that the trademark was used commercially, a case can be submitted by the original
trademark owner to the judicial authorities.
B. PROTECTION OF UNDISCLOSED INFORMATION
Follow-up to question 4:
(a) Referring to the issue of unfair commercial use of data submitted by an applicant to the
responsible authorities in the procedure for market authorization of a pharmaceutical or ofan agricultural chemical product, please explain whether and how your law prevents the
responsible authorities or a second applicant from relying on or from referring to the original
data of the first applicant for the market authorization procedure of the product of the second
applicant.  In particular, has a second applicant to provide to the responsible authorities the
same amount of data on safety and efficacy for such a product as the first applicant?
(b) Does your legislation provide for time-limits before the expiration of which such data cannot
be relied upon or referred to by the authorities or by a second applicant for the market
authorization of such a second product which is equivalent to the original product?
According to Articles 3 and 4 of the Patent Law in the State of Kuwait, an invention is not
considered to be new if it was used publicly in Kuwait in the past 20 years prior to the submission
date of the registration's application for said patent; or that a patent has been issued, part of which, not
to the original inventor or to someone that receiv ed its rights; or someone that has requested that a
patent be issued based on the same invention or part of it during the time period previously
mentioned.
The Ministry of Commerce & Industry has a specialized department called the Department of
Patents & Trademarks that keeps a register of all the patents and the pertinent information.
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