RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/171
25 April 2000
(00-1672)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal: English
REVIEW OF LEGISLATION
Questions Posed by Switzerland
By means of communications from the Permanent Mission of Switzerland dated
17 April 2000, the Secretariat has received copies of the following questions addressed to El Salvador,Indonesia and Poland respectively.
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EL SALVADOR
Articles 27 and 33 of the TRIPS Agreement (Patentable Subject Matter and Term of Protection)1. The Law on the Promotion and Protection of Intellectual Property  of El Salvador provides in
Article 109 that the term of protection for patents for inventions in the field of pharmaceuticals shall
be 15 years only, contrary to a 20-year term of protection for patents for all other inventions.  Please
explain how this provision complies with Article 27.1 of the TRIPS Agreement providing for patent
rights to be enjoyable without discrimination as to the field of technology and with Article 33 of the
TRIPS Agreement requiring a minimal term of protection of 20 years?
Article 39 of the TRIPS Agreement (Pro tection of Undisclosed Information)
2. Does your legislation ensure that undisclosed and confidential test data or other data
submitted by an applicant to the responsible state ag ency in the procedure for market authorization of
a pharmaceutical product is protected against disclosure and against unfair commercial use by a
competitor, for example by prohibiting a second appl icant from relying on, or from referring to the
original data of the first applicant, when applying  subsequently for market authorization for his own
product?
3. Does your legislation provide for exceptions to this?  If yes, under what conditions would
such exceptions apply?
INDONESIA
Article 27 of the TRIPS Agreement (Patentable Subject Matter)
1. Does the Indonesian legislation protect plant varieties by patents, an effective sui generis
system or by a combination of the two? If one of the two latter cases applies, please describe your
system.IP/C/W/171
Page 2
Article 31 of the TRIPS Agreement (Other Use Without Authorization of the Right Holder)
2. Does your law, in accordance with Article 27.1 in combination with Article 31 TRIPS
Agreement, recognize importation as "working a patent" (and therefore preclude a compulsory
licence)?
3. Does your law provide for the possibility of a compulsory licence in case a second patent
cannot be exploited without infringing another patent ("the first patent")?  If yes, under what
conditions will such a compulsory licence be granted?
4. How does your law protect process patents and the products deriving from such a patented
process?  Is the protection of either of them subject to the products being locally produced?
Article 39 of the TRIPS Agreement (Pro tection of Undisclosed Information)
5. Does your legislation ensure that undisclosed and confidential test data or other data
submitted by an applicant to the responsible state ag ency in the procedure for market authorization of
a pharmaceutical product is protected against disclosure and against unfair commercial use by a
competitor, for example by prohibiting a second appl icant from relying on, or from referring to the
original data of the first applicant, when applying  subsequently for market authorization for his own
product?
6. Does your legislation provide for exceptions to this?  If yes, under what conditions would
such exceptions apply?
POLAND
A. GEOGRAPHICAL INDICATIONS
Article 22 of the TRIPS Agreement (Protection of Geographical Indications)
1. How does Polish law define "geographical indications"?  Does this definition cover visual and
symbolic signs?
B. PATENTS AND PROTECTION OF UNDISCLOSED INFORMATION1
Article 31 of the TRIPS Agreement (Other Use Without Authorization of the Right Holder)
1. Does your law make compulsory licences subject to the conditions enumerated in Article 31
TRIPS Agreement?
2. What does Polish law consider as:
(a) "reasonable commercial terms", and
(b) "reasonable period of time"
under Article 31(b) TRIPS Agreement?
                                                     
1 In consideration of reservations made by Poland during the 1997 review with regard to certain areas
of its intellectual property legislation at that time in force and under review as well as of the announcement byPoland in 1997 of new legislation being drafted and to enter into force soon, Switzerland would like to posethese follow-up questions to Poland in respect of its new legislation.IP/C/W/171
Page 3
3. Does Polish law, in accordance with Article 27.1 in combination with Article 31 of the TRIPS
Agreement, recognize importation as "working a patent" (and therefore preclude a compulsory
licence)?
4. Does Polish law prohibit the transfer of a compulsory licence, except its transfer together with
the part of the enterprise or its assets that enjoys such use as required in Article 31(e) of the TRIPSAgreement?
Article 34 of the TRIPS Agreement (Process Patents: Burden of Proof)
5. Does Polish patent law or procedural law provide for the principal of the reversal of burden of
proof in process patent litigation?
Article 39 of the TRIPS Agreement (Pro tection of Undisclosed Information)
6. Does the Polish legislation ensure that undisclosed and confidential test data or other data
submitted by an applicant to the responsible state ag ency in the procedure for market authorization of
a pharmaceutical product is protected against disclosure and against unfair commercial use by a
competitor, for example by prohibiting a second appl icant from relying on, or from referring to the
original data of the first applicant, when applying  subsequently for market authorization for his own
product?
7. Does the Polish legislation provide for exceptions to this?  If yes, under what conditions
would such exceptions apply?
C. E
NFORCEMENT2
Article 50 of the TRIPS Agreement (Provisional Measures)
1. Do the judicial authorities in Poland have the authority to adopt, on the request of a right
holder, a provisional measure inaudita altera parte  before an action leading to a decision on the
merits of the case has been lodged?
2. Under Polish patent or procedural law, are there any restrictions for obtaining provisional
measures?  If so, what are these restrictions?
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2 In consideration of reservations made by Poland during the 1997 review with regard to certain areas
of its intellectual property legislation at that time in force and under review as well as of the announcement byPoland in 1997 of new legislation being drafted and to enter into force soon, Switzerland would like to posethese follow-up questions to Poland in respect of its new legislation.