RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/292
13 July 2001
(01-3481)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Papua New Guinea to the questions posed by Canada,
the European Communities and their member States, Japan, Switzerland and the United States
By means of a communication from the delegation of Papua New Guinea dated 18 June 2001,
the Secretariat has received the following responses to the questions posed by Canada, the European
Communities and their member States, Japan, Switzerland and the United States as circulated in
documents IP/C/W/245, 244, 238, 239 and 240, respectively.
_______________
Note:
Although questions relating to patents and industrial designs and copyright and neighbouring
rights have been answered, it should be borne in mind that the legislation covering them is, at this
stage, not yet in  force.  The Patents and Industrial Designs Regulations are presently being finalized,
following WIPO's comments on our draft regulation towards the end of May 2001.
There is a coordinated effort between some state agencies, which include Customs (of the
Internal Revenue Commission), the Police Force and the Attorney-General's Department.  Thus in
many of our answers we have referred to them, particularly on issues of enforcement.  Customsofficials will very much be involved in enforcement of border measures, but are presently awaiting
the gazettal of the TRIPS legislation.
CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement)
have been implemented.
Much of the enforcement provisions under the various IP legislation of Papua New Guinea
are of judicial proceedings.  Both civil and criminal remedies are available under the various
legislation.  The criminal remedies include substantial fines and imprisonment, and seizure ofinfringing goods (particularly for goods infringing copyright) and forfeiture of counterfeit goods (in
trademark infringement).  Civil remedies include injunction, damages, account of profits and
destruction or other reasonable disposition of infringing goods (expressly stated for goods infringing
copyright).
The Courts may also order the impounding of packaging of the implements that could be used
for the making of copies of works or son, d recordings, and the documents, accounts or business
papers relating to such copies.
Owners of patent and industrial designs can also institute proceedings against any person who
performs an act, which makes it likely that his right will be infringed.  An order for inspection ofIP/C/W/292
Page 2
anything in or on any vehicle, vessel, aircraft, building or premise can also be obtained for purposes
of enforcing, his right.
The enforcement in the current IP legislation for Articles 47, 48 and 49, are either not
expressly stated, but are stated in general terms.  The civil procedure instituted in the Courts for theenforcement of IP rights is the same as any other civil procedure, e.g,, the order for the production of
documents and confidential (or privileged) information.
2. What protection does your Copyright legi slation afford to "foreign works"?
The Act does not define "foreign works" neither is there any "discriminatory" provision in the
Act in favor of the nationals of Papua New Guinea.  Under Section 3 (Application) it is stated in
Subsections (4) and (8) that the provisions of the Act shall apply to works (and performers, producersof sound recordings and broadcasting organizations) that are eligible for protection by virtue of, and
in accordance with, any international convention or other international agreement to which Papua
New Guinea is a party.
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. G
ENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health and
nutrition, and to promote the public interest in se ctors of vital importance to your socio-economic and
technological development as mentioned under Arti cle 8 of the TRIPS Agreement.  If yes, please
explain how such measures are consistent with the provisions of the TRIPS Agreement.
There is no such provision for copyright and neighbouring rights.  With regards to industrial
property there is no specific provision in either the Trade Marks Act or the Patents and Industrial
Designs Act 2000.  The Patents and Industrial Designs Act 2000 briefly mentions in Section 12(Patentable Inventions) that an invention that is co ntrary to public order and morality or which would
seriously prejudice the environment, is not patentable.  Where an invention is granted a patent, but
subsequently proves to be not in the best interest of the public under this section, it can be invalidated
through a request under Section 37 of the Act.
Section 32 (Exploitation by Government or Person Authorized by Government), provides that
a patented invention can be exploited by the government or an authorized person even without the
consent of the right holder where public interest, in particular, national security, nutrition, health orthe development of other sectors of the national economy requires, or where the Minister determines
that the nature of the exploitation of the pate nted invention by, the owner or licensee is anti
competitive and that the exploitation of it in accordance with this division would remedy it.
The Minister, however, prior to granting the authorization. must be satisfied that the owner of
the patent had received from the government agency of person requesting the authorization, a requestfor a contractual licence but that that agency or person had been unable to obtain the license on
reasonable commercial terms and conditions and within a reasonable time.
The provision neither describes any particular events or cases to do this (apart from
mentioning "national emergency"), nor does it describe any measures to take to ensure it.
B. C
OPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of authors
in relation to their literary and artistic works, as  specified in Article 9 of the TRIPS Agreement whichIP/C/W/292
Page 3
requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the
Berne Convention (1971)).
Papua New Guinea is yet to accede to the Berne Convention.  However, by virtue of the
TRIPS Agreement it has given effect to Articles 1 - 21 of the Berne Convention.  The basic principles
laid down in the said convention have been generally adopted with little alterations.
Authors' works in books, pamphlets, articl es, computer programs and other writings,
speeches, lectures, addresses, sermons and other oral works are expressly protected under Section 4 of
the Copyright and Neighbouring Rights Act.  Their economic and moral rights are expressly
stipulated and protected under Sections 6 and 7 respectively.
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
See generally discussion in 2 above. The words "computer program" are defined as "a set of
instruction expressed in words, codes, schemes or in any other form, which is capable, when
incorporated in a medium that the computer can r ead of causing a computer to perform or achieve a
particular task or result".
Computer programs are expressly protected u nder Section 4(1)(a)(i).  Derivative works,
including collections of works and databases, whether in machine readable or other forms, are also
protected under the same Section in (1)(b)(ii).
4. Please state whether your legislation provides for a rental right and, if so, the works to which
it applies.
Rental rights are expressed in Section 6 (Economic Rights).  A copyright owner has rental
rights of his original or copy of his work whether it be an audiovisual work, work embodied in a
sound recording, a computer program, a database or a musical work in the form of notation.  Rentaldoes not apply to rental of a computer program where the program itself is not the essential object of
the rental.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
(a) Subject to the express limitations (see part 2 of the response to question 6 below) a performer
has the exclusive right to carry out or authorize any of the following acts:
(i) The broadcasting or other communication to the public of his performance, except
where the broadcasting or other communication is made from the fixation of the
performance (limitations of these are expressed), or is a rebroadcasting made or
authorized by the organization initially broadcasting the performance; and
(ii) The fixation of his unfixed performance; and
(iii) The direct or indirect reproduction of a fixation of his performance in any manner or
form; and
(iv) The first making available to the public of a fixation of his performance, or copies
thereof, through sale or other transfer or ownership; and
(v) The rental to the public or public lending of a fixation of his performance, or copies
thereof, irrespective of the ownership of the copy rented or lent; andIP/C/W/292
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(vi) The making available to the public of his fixed performance, by wire or wireless
means, in such a way that members of the public may access them from a place or at a
time individually chosen by them.
Where the performer has authorized the incorporation of his performance in an audio-visual
fixation, the above has no further application.
A performer has an independent right in respect of his live aural performances and
performances fixed in phonograms to claim to be identified as the performer of the performances and
the right to object to any distortions, mutilation or  other modification of his performances that would
be prejudicial to his reputation.
(b) Subject to the express limitations (see part 2 of the response to question 6, below), a producer
of a sound recording has the exclusive right to carry out or authorize the following acts -
(i) The direct or indirect reproduction of the sound recording in any manner or form; and
(ii) The importation of copies of the sound recording; and
(iii) The making available to the public by sale or other transfer of ownership of original
or copies of the sound recording that has not already been subject to a distribution
authorized. by the producer; and
(iv) The rental to the public or public lending of a copy of the sound recording irrespective
of the owner of the copy, rented or lent; and
(v) The making available to the public of the sound recording by wire or wireless means,
in such a manner that members of the public may access it from a place or at a time
individually chosen by them.
There is an express provision for a single equitable remuneration to be paid to the producer by
the user for the use of sound recording, where it is published for commercial purposes (or copies of it)
and it is directly used for broadcasting or other communication to the public.  This amount is to bedivided as they agree or in the absence of such agreement, by half.
(c) Subject to the express limitations (see part 2 of the response to question 6 below),
broadcasting organizations have the exclusive rights to carry out or to authorize the following acts -
(i) The rebroadcasting of the broadcast; and(ii) The communication to the public of the broadcast; and
(iii) The fixation of the broadcast; and
(iv) The reproduction of the fixation of the broadcast.
The rights above are to be protected from the moment when the broadcasting take place until
the end of the fiftieth calendar year following the year in which the broadcast takes place.
6. Please state whether your legislation provides for any limitation or exception in relation to
each of the rights described above in accordance with the relevant provisions of the Berne and Rome
Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.IP/C/W/292
Page 5
(1) Specific actions stated in Sections 8-16 of the Copyright and Neighbouring Rights Act 2000
limit the exclusive right of authorship (i.e. the authors' authorization need not be obtained),
which include:-
(a) Private reproductions for personal purposes;
(b) Temporary reproductions;
(c) Quotations;
(d) Reproductions for teaching;
(e) Reprographic reproductions by public institutions;
(f) Reproductions, broadcasts and other communication to the public for information
purposes;
(g) Reproductions and adaptations of computer programs; (h) Importation of works for personal uses;
(i) Display of works;
Provided that those reproductions are compatible with fair practice and do not exceed the
extent justified by the purpose.  There is no definition of "fair practice", and as to what would be
"justifiable" may be a question of law.
(2) The rights of performers, producers of sound recordings and broadcasting organizations do
not apply where the acts referred to (as stated above in the response to question 5) are related
to:-
(a) the use of short excerpts for reporting curr ent events to the extent justified by the
purpose of providing current information; or
(b) reproductions solely for scientific research; or
(c) reproductions solely for the purpose of face-to-face teaching activities except for
performances and phonograms which have been published for teaching or instructionmaterials; or
(d) cases where, under part 1 of the response to question 6 above, a work can be used
without the authorization of the author or owner of copyright.
7. Please state the terms of protection of each right described above and the work or subject
matter to which it applies.
Copyright
(a) The author's economic and moral rights as steed are protected during the life of the
author and fifty years after his death.
(b) The same applies for works of joint authorship.IP/C/W/292
Page 6
(c) For collective work other than work of applied an, and in the case of an audio-visual
work, the economic and moral rights are protected for a period of fifty years from the
date on which the work was first made, first made to the public or first published,
whichever occurs last.
(d) For works published anonymously or under a pseudonym the economic and moral
rights shall be protected for a period of 50 years from the date on which the work was
first made, first made available to the public or first published, whichever occurs last,
provided that where the author's identity is revealed or is no longer in doubt before
the expiration of the said period then the period stated in parts (a) or (b) of the
response to question 7 apply.  The above rights are protected from the publication of
sound recording until the end of the fiftieth calendar year following the year of
publication, or if not published, from the year of the fixation.
Neighbouring rights
(a) Rights of performers:  Protected until the end of the fiftieth calendar year following
the year in which the performance was fixed in a phonogram. or in the absence of
this, the year in which the performance took place.
(b) Rights of producers of sound recordings:  The protection lasts fifty calendar years
from the year of the publication of the sound recording, or if not published, from the
year of the fixation of the sound recording,
(c) Rights of broadcasting organizations:  The protection begins from the moment the
broadcasting takes place until the end of the fiftieth calendar year following the yearin which the broadcast takes place.
The rights and subject matters have been listed in the preceding paragraphs.
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPSAgreement) and Article 14.6 of the TRIPS Agreement.
Despite there being no express provision granting retroactive protection pursuant to the said
provisions of the Conventions, the Act does recognize and provide for priority dates.  It may be noted
also that under the miscellaneous provisions of the Act (in Section 32), it is expressed that the
provisions of any international treaty in respect of copyright and neighbouring rights to which Papua
New Guinea is a party shall apply to matters dealt with under the Act, and the treaty shall prevail to
the extent of any inconsistency.
C. T
RADEMARKS
9. Please give the definition of a sign under your national legislation and explain under what
conditions it is protectable.
The word "sign" is not defined under the Trade Marks Act, Chapter 385.  Instead the term
"mark" is defined to "include a devise, brand, heading, label, ticket, name, signature, word, letter or
numeral or any combination of them".  Smell and sound marks are not protected.
A mark is registrable in Part A of the Register if it is distinctive.  Evidence must be furnished
to show that a mark is distinctive to be capable of registration in this Part.  Registrable marks in PartA may contain or consist of -IP/C/W/292
Page 7
(a) the name of a person represented in a special or particular manner; or
(b) the signature of the applicant for registration or of some predecessor in his business;
or
(c) an invented word; or
(d) a word;
(i) not having a direct reference to the quality of character of the goods respect
of which registration is sought; and
(ii) not being, according to its ordinary meaning, a geographical name or a
surname; or
(e) any other distinctive mark.
A mark is registrable in Part B if it is distinctive or is capable of becoming distinctive, of
goods in respect of which registration of the trademark is sought and with which the applicant forregistration is or may be connected in the course of trade.
10. Please confirm whether or not services are a protectable subject matter in your trademark
law.  Please confirm if signs, such as trade names, are protectable.  Please describe if elements such
as sound, perfumes and containers are protectable.
Services are a protectable subject matter under the Trade Marks Act.  The definition of
"goods" in Section 1 includes "services".
11. Please explain what the requirements of use are, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a registrationin that respect.
For purposes of applying for the registration of a trademark, the applicant is not obliged to
furnish prior evidence of use of the mark.  The Act allows for the removal of a registered mark in
respect of any goods in respect of which it is registered, only upon an application be an aggrieved
person on the following grounds –
(a) that the mark was registered without an intention in good faith on the part of the
applicant for registration that it should be used in relation to those goods by him or in
cases of a registered user, that there is in fact no use in good faith in relation to the
goods by the registered proprietor or user of the mark for the time being earlier than
one month before the application; or
(b) that up to one month before the application, a continuous period of not less than three
years had elapsed during which the trademark was a registered trademark and during
which there was no use in good faith of the trademark in relation to those goods by
the registered proprietor or a registered user of the trademark for the time being.
12. Please confirm whether or not your legislation permits that the registration of trademarks be
indefinitely renewable.
This is confirmed.  Section 46 provides for this.IP/C/W/292
Page 8
13. Please describe the special requirements, if any, prescribed by your legislation concerning
the use of a trademark.
There are no express special requirements concerning the use of a trademark.
D. GEOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a trademark
application if it contains a geographical indication.
Trademark applications that contain geographical names or other geographical indications are
generally refused registration.  In most cases the applicants are required to submit evidence of
distinctiveness of the mark through extensive use of the mark for at least a period of three (3) years. A
decision is then made on whether the mark may be registered in Part A or Part B of the Register.
15. Please give the definition of a geographical indication in your legislation.
The term is not defined in the Trade Marks Act.
16. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
There is no such provision under the current Trade Marks Act, Chapter 385. Amendments, in
light of the TRIPS Agreement and international practices, are being proposed but yet to be submitted
for passing by the National Parliament.
17. Please describe how additional protection is granted by your legislation to wines and spirits.
Please mention other types of products, if any, covered by this additional protection.
There is no provision for this in the present Tr ade Marks Act. (Please refer to comments in the
response to question 16 above).
18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your
jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of names
considered as generic in your jurisdiction.
This has not been catered for in the present Ac t. (Please refer to comments in the response to
question 16 above).
E. INDUSTRIAL DESIGNS
19. Please explain whether or not your legislation extends to the protection of designs dictated
essentially by technical or functional considerations.  Please explain how textile designs are
protected.
This is not specifically stated.  There is no specific provision on the protection of textile
designs, instead a general provision on industrial designs is made, and considering the definition of an
"industrial design" such are accommodated and can be protected.
20. Please explain how your legislation protects right holders of a design against importing of
articles bearing embodied or copied design.
There is no specific provision for this. However, action can be taken by the right holders
under Section 49 of the Patents and Industrial Designs Act 2000 for a remedy.  The provision is inIP/C/W/292
Page 9
wide terms and allows a right holder to take Court action where his right is breached or is likely to be
breached.
21. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
The Patents and Industrial Designs Act 2000 does not provide for this.
22. Please indicate for what period of time your  legislation grants protection for industrial
designs.
Section 50 of the Patents and Industrial Designs Act 2000 provides that the registration of an
industrial design shall expire five (5) years after th e filing date of the application for registration.  The
registration can be renewed for two further consecutive periods of five years.
F. PATENTS
23. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
(a) Under Section 13 of the Patents and Industrial Designs Act 2000, an invention is new "where
it is not anticipated by prior art".
(b) Under Section 14 of the said Act, an invention involves an inventive step where it would not
have been obvious to a person skilled in the relevant act in the light of the common general
knowledge as it existed prior to the filing or, where appropriate, the priority date of the
application claiming the invention.
(c) Under Section 15 of the said Act, an invention is industrially applicable where it can be made
or used any in kind of industry, which includes handicrafts, agriculture, fishery and services.
24. Please explain whether or not in your legislation, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how these
exclusions are applied in legal as well as practical terms.
There are no exclusions to the enjoyment of patent rights by owners.  (Also please refer to the
second paragraph of the response to question 1, on the discussion on Section 32 of the Act).
25. Please explain whether your legislation provides for the exclusion of inventions from
patentability based on ordre public or morality.  If so, please explain the relevant section of your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
Section 12 (2) of the Act makes a general provision in the following terms -
"An invention, the commercial exploitation of which would-(a) be contrary to public order or morality; or
(b) …is not patentable".
The Act is not yet in force.  However, with th e finalization of the Regulations, this should be
enforced within this year.IP/C/W/292
Page 10
26. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded
from patentability in your legislation. If so, please explain the relevant section of your legislation and
explain its formulation.
Yes. Section 2 of the Act expressly states that "invention ..., does not include diagnostic,
therapeutic and surgical methods, but not including any products for use in any such methods, for the
treatment of humans and animals."
27. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation. If so, please explain the relevant section of your
legislation and explain its formulation.
There is no express provision on this under the Act.
28. Please describe how micro-organisms, non-essentially biological processes, microbiological
processes and plant varieties are protected in your legislation. Please explain, in this respect, the
relevant sections of your legislation.
There is no provision for this under the Act.
29. Please explain how your legislation protects patent right holders against the importing and
against the offering for sale of a patented invention.
There is no specific provision for this.  However, Section 29 of the Act (Rights considered by
a Patent) prohibits "the exploitation in Papua New Guinea of a patented invention by persons otherthan the owner of the patent".  Under Section 2 of the Act, the phrase "exploitation of a patented
invention" means any of the following acts-
"(a) where the subject matter of a patent is a product -
(i) making, using, offering for hire, selling and importing  the product; and
(ii) …
(b) Where the subject matter of a patent is a process-
(i) ... and
(ii) using, offering for sale, selling and importing  a product obtained directly by
means of the process."
Empowered by the TRIPS legislation (now awaiting gazettal), Customs agents will be
assisting in the enforcement of the rights.
30. Please state if your legislation provides for patent product protection of pharmaceutical and
agricultural chemical products.  In the affirmative, please indicate the legal reference.
This is not expressly stated under the Act.  The Act, however, makes broad provisions, under
which these, except plant varieties, can be protected (see Section 12 of the Act).
31. Please clarify if the patent protection of a process, as provided for in your legislation, covers
the product obtained directly by that process.IP/C/W/292
Page 11
Yes. Please also refer to part (b) of the response to question 29, above.
32. Please explain the additional conditions, if any, in your legislation other than the sufficient
disclosure of the invention in Article 29 of the TRIPS Agreement (e.g. submission of justification for
access to genetic material or prior inform consent to its use).  If such additional conditions exist,please point out the relevant legislations and describe the additional conditions in detail.
There are no additional conditions stipulated.
33. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
The Act makes certain limitations on the right of owners of patent under Section 29 (4) of the
Act.  Patent owners' rights shall not extend to –
(a) acts in respect of articles which have been put on the market in Papua New Guinea by
the owner of the patent or with his consent; or
(b) the use of articles on, or in the construction or operation of, aircraft, land, vehicles or
vessels of other countries which temporarily or accidentally the air space, territory orwaters of Papua New Guinea; or
(c) acts done only for experimental purposes relating to a patented invention; or
(d) acts done by any person who, in good faith, before the filing of an application for
grant of patent, or where priority is claiming the priority date of the application on
which the patent is granted, was exploiting the invention or was making effective andserious preparation for such exploitation in Papua New Guinea; or
(e) acts performed by any person who proves th at, at the date of any infringement of a
patent, he was not aware, and had no reasonable grounds to believe, that a patent for
the invention existed.
34. Please explain whether or not your legislation provides for compulsory licensing. If so, please
explain in detail the conditions under which a compulsory licence may be granted.  In particular,
please explain how your national le gislation considers individual merits in the authorization of such
use.
The Act does not make provision for this.
35. Please explain how your legislation explicitly ensures that a proposed user has made efforts
to obtain authorization from the right holder on reasonable commercial terms and conditions and that
such efforts have not been successful within a reasonable period of time. In this context, how do you
define "reasonable period of time".  Please also exp lain how your legislation ensures that the use of a
compulsory licence shall be authorised predominantly for the supply to the domestic market of the
Member authorizing such use.
Generally see part (b) of the response to question 1, above. "Reasonable Period of Time" is
not defined anywhere under the Act.
36. Please state if your legislation grants additional protection for innovations after the 20 years
of patent protection has lapsed.IP/C/W/292
Page 12
Under the Act, the duration of a patent is 20 years.  There is no additional protection in the
Act for innovations after the 20 years of the patent protection has lapsed.
37. Please explain how your legislation provides for the enhanced patent protection of patents or
patent applications pending on 1st January 1995.
The Act does not provide for this.
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Under Section 30 of the Act, in infringement of a patent, where the subject matter of the
patent is a process for obtaining a product, the onus of establishing that the product was not made by
the process is on the alleged infringer where the Court is satisfied that -
(a) a substantial likelihood exists that the product was made by the process; and
(b) the owner of the patent has been unable through reasonable efforts to determine the
process actually used.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects Topographies.
Layout-designs of integrated circuits are not provided for in the current legal structure on
intellectual property.  Questions 39 through to 42 will not be answered.
40. Please explain what protection your national legislation grants to right holders against the
unlawful importation, sale or distribution for commercial purposes of topographies including
integrated circuits or other articles in which a topography is incorporated in accordance with
Article 36 of the TRIPS Agreement.
Please refer to the response to question 39.
41. Please explain how your legislation provides for the derogation from Article 36 as specified
in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable grounds to
know when acquiring an integrated circuit or an article incorporating such an integrated circuit that
it contains an unlawful topography.
Please refer to the response to question 39.
42. Please state the term of protection granted by your legislation to topographies.
Please refer to the response to question 39.
H. PROTECTION OF UNDISCLOSED INFORMATION
43. Please explain whether or not your legislation grants a defined period of time for the
protection of undisclosed information. If so, please give the time span.
The current law on Intellectual Property does not provide for a definite period for the
protection of undisclosed information, or define this type of IP.  This type of IP is not legislated for
presently.  Data submitted to governments or gove rnmental agencies is not provided for in the
legislation.IP/C/W/292
Page 13
44. Please explain how your legislation defines "undisclosed information".
Please see the response to question 43.
45. Please explain how your legislation defines da ta submitted to governments or governmental
agencies.
Please see the response to question 43.
I. ENFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Both civil and criminal action can be instigated under the Acts to enforce a right.
Patents and Industrial Designs:
- Civil Remedies:
Right owners or any other interested person can take no civil proceeding under the Act, and if
the other party is found to be infringing their rights or is doing an action that which makes it
likely that the patent or industrial design will be infringed, the Court –
(a) may grant an injunction; or
(b) make an order for the inspection of anything in or on any vessel, vehicle, aircraft,
building or premises; or
(c) award damages; or
(d) order an account of profits.
- Criminal Remedies:
(a) A person convicted on false representations about a patent or industrial design faces a
fine not exceeding PNGK10 000.00, and a default penalty not exceeding
PNGK1000.00
(b) The same maximum fines apply to persons guilty of disobedience to summons to
either appear as a witness before the Registrar, or produce a document required by the
Registrar (if there is no lawful excuse).
(c) On conviction on any, general offence under the Act, the penalty of which is not
specified, a fine hot exceeding PNGK5000.00 applies.
(d) The Registrar has power under the Act to prosecute any offence under the Act.  Any
other person can do so after obtaining the written consent of the Registrar.
Copyright:
The Court has powers to order conservatory and provisional measures under the Copyright
and Neighbouring Rights Act 2000.  Under this power, the regular Courts may –IP/C/W/292
Page 14
(a) grant injunctions, whether interlocutory or perpetual, to prohibit the committing or
continuation of committing of any infringement of copyright; or
(b) order the impounding of copies of work or sound recordings suspected of being made
or imported without the authorization of the right owner where the making, orimportation of copies is subject to authorization by the right owner;
(c) order the impounding of packaging of implements that could be used for the making
of copies of works and sound recordings, and the documents, accounts or business
papers relating to such copies.
- Civil Remedies:
(a) The right owner is entitled to payment of damages where is right is infringed,
including the expenses caused by the infringement.  The amount of damages is
determinate upon the importance of the material, the moral prejudice suffered by the
right owner and importance of the infringer's profits attributable to the infringement.
Where the infringer did not or had no justifiable reason to know he was engaged in an
infringing activity, the damages may be reduced.
(b) Copies of infringing goods may be destroyed unless the right owner requests
otherwise.  This does not apply to third parties where the copies were obtained in
good faith.
(c) Where it appears to the Courts that there is a likelihood of an act of infringement
continuing, the Court may order that such an act of infringement be ceased.  Failureto comply with this order carries a maximum fine (on conviction) of
PNGK100 000.00.
- Criminal Remedies:
(a) A person who infringes any right protected under the Act wilfully or by gross
negligence and for profit making purposes is guilty of an offence and may be liable to
either imprisonment for a term not exceeding 10 years, or a fine not exceeding
PNGK100 000.00 or both.
(b) The provisions of the Criminal Code dealing with search and seizure also applies in
proceedings under this Act; and
(c) The provisions of the Customs Act dealing with illegal goods also applies to articles
and implements used in relation to infringement of rights under this Act.
Trademarks
The Court may grant an injunction against th e committing, or continuation of committing of
an infringing activity, and, at the option of the plaintiff either  damages or an account of profits.
Forgery of trademarks, or falsely applying a trademark to goods or producing dies, blocks,
machines or instruments for purposes of forcing a trademark are offences that attract a maximum of
three years imprisonment or fine not exceeding PNGK2000.00. (Note that the fines under the Trade
Marks Act are presently under review).IP/C/W/292
Page 15
Selling or importing goods with false marks attracts a maximum fine of PNGK500.00.  The
same maximum fine applies to anyone aiding or abetting, counselling or procuring directly or
indirectly any person in the commission of an offence under the Act.
Infringing goods shall be forfeited to the state upon conviction of the person involved in the
infringing activity.
Enforcement agencies include Customs officers and the police, under the various provisions
of the Customs Act and the Criminal Code Act.
47. Please explain whether or not your legislation provides for a mechanism to appeal to judicial
bodies of final administrative decisions.
Yes.  Aggrieved persons in the Registrar's decisions can appeal to the Courts.  Once a case
comes before the Courts, the normal appeal process can be followed to the highest Court.  No time-
period is mentioned within which to appeal the decisions of the registrar, except for patents, which is
for one month from the date of notification of the decision of the registrar.
48. Please describe how your legislation authorizes judges to order production of evidence by the
opposing party.  Please give precise information on what measures are taken to ensure the protection
of confidential information.
The Registrar has express powers to order persons to appear to civil evidence or to produce
documents. Judges have the power to do so under the norw21 civil action proceedings as stipulatedunder the National Court Rules on pleadings.  Any privileged information or manufacturing or
business secrets (confidential information) may not be disclosed.  The person against whom the order
to produce documents is nude should indicate the nature of the documents and claim privilege over
them.  The judge will have to decide whether or not the information is indeed privileged and should
not be disclosed.
49. Please quote provisions of your legislati on that authorize judges to order a defendant to
desist from an infringement.
Patents
Section 29 (3) of the Patents and Industr ial Designs Act 2000 reads (for Patents) -
"Where the Court finds that a patent has been infringed or is likely to be infringed, it may, on
the application of the owner of the patent or any other interested person, and in respect of any
person:-
(a) grant an injunction, subject to such terms, if any, as the Court thinks fit; or
(b) make an order for the inspection of anything in or on any vehicle, vessel, aircraft,
building or premises and may impose such terms and give such directions, if any, in
relation to the inspection, as the Court thinks fit."
Section 49 (3) of the Patents and Industrial Designs Act 2000 reads (for Industrial Designs) -
"Where the Court finds that a registered industrial design has been infringed or is
likely to be infringed, it may, on the application of the owner of the patent or any other
interested person, and in respect of any person,
(a) grant an injunction, subject to such terms, if any, as the Court thinks fit, orIP/C/W/292
Page 16
(b) make an order for the inspection of anything in or on any vehicle, vessel, aircraft,
building or premises and may impose such terms and give such directions, if any, in
relation to the inspection, as the Court thinks fit."
Copyright and Neighbouring Rights Act
Under Section 26 (1) of the Copyright and Neighbouring Rights Act 2000, it is stated:-
"The Court shall have the authority, under its civil and criminal jurisdiction, and oil such
terms as it may deem reasonable -
(a) to grant injunctions to prohibit the committing or continuation of committing, of an
infringement of any right protected under this Act; or
(b) to order the impounding of copies of works or sound recordings suspected of being
made or imported without the authorization of the right owner where the making or
importation of copies is subject to such authorization-,
(c) order the impounding of packaging of implements that could be used for the making
of copies of works and sound recordings, and the documents, accounts or businesspapers relating to such copies.
Under Section 27 (7) of the said Act, the following is stated:-
"Where it appears to the Court that there is lik elihood of an act of infringement continuing,
the Court may order that such act of infringement shall cease to be continued."
Trademarks Section 56 of the Trade Marks Act lays down a general provision in the following
terms -
"The relief which a Court may grant in an action or proceeding for infringement of a
registered trademark includes an injunction, subjec t to such terms (if any) as the Court thinks
fit and, at the option of the plaintiff, either damages or an account of profits."
(Please refer generally to the response to question 46, above).
50. Please quote what provisions of your legislation authorize judges to order the payment to the
right holder of adequate damages to compensate the injury he suffered.
Patents and Industrial Designs
Sections 29 (3)(c) and (d) and 49 (3)(c) and (d) provide for damages for infringement of
Patents and Industrial Designs.
Copyright
Section 27 of the Copyright and Neighbouring Rights Act provide for damages in copyright.
infringement
Trademarks
Section 56 of the Trade Marks Act provides for the award of damages to the trademark owner
in cases of infringement of his registered trademark.IP/C/W/292
Page 17
51. Please quote what provisions of your legislation authorize judges to order the payment of the
right holder's expenses by the infringer.
There is no express provision in the Acts for Patents, Industrial Designs and Trademarks.  The
Trade Marks Act, in this regard, only empowers a party to pay costs to another party, but this seems to
indicate expenses for legal proceedings.
The Copyright and Neighbouring rights Act does make such express provision under
Section 27.
52. Please explain if and how judges have the authority to order that infringing goods are placed
outside channels of commerce or destroyed.
The Acts do not express how, where and the means of placing infringing goods outside
channels of commerce to be destroyed. General provisions, however, mention that such goods be
either forfeited to the state (trademarks) or (for copyright), simply destroyed unless requested
otherwise by the right owner.  There is no expr ess provision for patents and industrial designs.
53. Please quote what provisions of your legislation authorize judges to indemnify a defendant in
the event of abuse by the plaintiff.
Indemnification of defendants has not been expressly provided for in the present intellectual
property Acts.
54. Please explain how your legislation im plements Article 50 the TRIPS Agreement.
The general provisions under the IP Acts reasonably enforce this provision of the TRIPS
Agreement.  Provision is made for right owners to seek remedy against actions performed that may
likely  lead to an infringement of their rights .  Further an order to inspect any thing , in or on any
vehicle, vessel, aircraft, building or premise will ensure that any such acts may be identified and dealt
with.  Lastly, provision is made that any person in possession of an article, instrument, machine ordevise for the production of infringing goods (trademark infringement) is guilty of an offence.  For
copyright, provision is made to order impounding or packaging of implements that could be used to
produce copies or works and sound recordings.
There is no express provision on preservation of relevant evidence in regard to the alleged
infringement.  Apart from customs checks on illegal goods under the Customs Act, there is no specific
provision for the prevention of the entry in channels of commerce the infringing goods.
55. Please identify the competent authorities in your jurisdiction who receive requests from right
holders for an application to suspend the release of counterfeit goods by the customs authorities.
The Act does not specify this.  However, there is a coordinated effort between the Intellectual
Property Office  of Papua New Guinea, the Customs (Internal Revenue Commission), the Police and
the Attorney General, to share responsibilities in the enforcement of IP laws in Papua New Guinea.
The Customs officials are  directly responsible for border measures enforcement and would be the
competent authority in this matter.  Such matters  have been provided for in the gazetted TRIPS
legislation.
56. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.IP/C/W/292
Page 18
There are no stipulated procedures under the body of IP legislation.  However, it is understood
that the rules of unlawful exports and exporting under the Customs Acts and procedures would apply.
(Note the response to question 55, above).
57. Please quote what provisions of your legislation authorize the competent authorities to order
the destruction or disposal of infringing goods.
Only the Copyright and Neighbouring Rights Act has this expressly stated in Section 27 (4) of
the Act.  The Trade Marks Act only mentions "forfeiture" to the state. The Patents and Industrial
Designs Act is silent on this matter.
58. Please indicate whether or not your legislation provides for a de minimis imports exception.
There is no express  mention of this in the IP legislation.  However, the Customs Act and
regulations. does address this issue.
59. Please explain how your legislation impl ements Article 61 of the TRIPS Agreement.
This is adequately implemented under both the Copyright and Neighbouring Rights Act 2000
(under Part IV) and the Patents and Industrial Designs Act 2000.  (Please refer to the  discussions in
the response to question 46, above).  The part on seizure, forfeiture and destruction of infringing
goods is not adequately covered under the Patents and Industrial Designs Act.
The Trade Marks Act does make wilful trademark counterfeiting an offence.  Again, however,
the current amount of fine is outdated.  The Act does state that infringing goods be forfeited to thestate.
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 Articles3
and 4 of the TRIPS Agreement.
There is no express exception in the Copyright and Neighbouring Rights Act 2000.
SWITZERLAND
A.P ATENTS
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.
The provision on "patentable inventions" is in very broad and in general terms.  Further,
according to the meaning of "invention", any prod uct for use in diagnostic, therapeutic and surgical
methods are patentable, but not the method themselves.
The Act does not specifically and expressly mention the categories of patentable products,
e.g., pharmaceutical products, plant varieties and micro-organisms.  As it is, it covers a wide range of
products.IP/C/W/292
Page 19
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 preclude compulsory
licensing, if a product is being imported)?
Yes.  According to the definition of "exploiting an invention", importation of a patented
product constitutes an exploitation or working of a patent.
3. Does your law make compulsory licenses subject to all the conditions enumerated in
Article 31 of the TRIPS Agreement? Please cite the relevant provisions of law.
Yes, under Section 32 of the Act, (except clause (e) has not been clearly expressed, and the
Act makes no difference to clause (1)).
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.
Yes.  This is provided for under Section 30.
B.P ROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed and confidential test data
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 a second
applicant from relying on, or from referring to the original data of the first applicant, when applyingsubsequently for market authorisation for his own product.  Does your legislation provide for
exceptions to this? If yes, under what conditions would such exceptions apply? Does your legislation
provide for a defined period of protection for undisclosed information / for such test data of the first
applicant?
The current IP legislation does not provide for the protection of undisclosed information,
including confidential test data or other data submitted by an applicant to the state in the procedure for
market authorization.
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 nation treatment and most-
favoured-nation treatment are provided to nationals of other WTO Members.
Plant variety protection is not provided for in the current IP legislation. There is no express
mention of the most-favoured-nation or national treatment principles.
Generally, however, the principles of the WN and National Treatment are recognized, thus
the absence of any discriminatory provisions in any of the existing IP legislation for any form of
intellectual property presently legislated for.
The Copyright and Neighbouring Rights Act specifically mention in Section 3 (7) that "the
provisions of this Act shall apply to performers, producers of sound recordings and broadcasting
organizations that are eligible for protection by virtue of, and in accordance with, any internationalIP/C/W/292
Page 20
convention or other international agreement to which Papua New Guinea is a party".  The Act also
provides that in case of inconsistency with any su ch agreements, the provisions of the international
convention or agreement prevails to the extent of the inconsistency.
B. COPYRIGHT AND RELATED RIGHTS
2. Please explain whether and how the copyright law of Papua New Guinea complies with
Article 9 of the TRIPS Agreement requiring that Members comply with all Articles 1 through 21 of the
Berne Convention (1971), except Article 6bis, since Members do not have rights or obligations relating
to the latter Article under the TRIPS Agreement.
The copyright law does comply, to a great extent, with Articles 1 through 21 of the Berne
Convention.  Most of the provisions have been adapted in very similar wordings, in particular the
following Articles -
(i) 1; and
(ii) 2; and
(iii) 5; and
(iv) 7; and
(v) 7bis; and
(vi) 8; and
(vii) 9; and
(viii) 10; and
(ix) 10bis; and
(x) 11, and
(xi) 11bis; and
(xii) 13; and
(xiii) 14ter; and
(xiv) 15; and
(xv) 16.
There are no conflicting sections in the Act relating to the other provisions of the Berne
Convention not mentioned above.
3. Please explain how the copyright law of P apua New Guinea protects computer programs as
literary works  and complications of data as required by Article 10 of the TRIPS Agreement.IP/C/W/292
Page 21
The words "computer program" are defined as "a set of instruction expressed in words, codes,
schemes or in any other form, which is capable, when  incorporated in a medium that the computer can
read, of causing a computer to perform or  achieve a particular task or result.
Computer programs are expressly protected under Section 4(1)(a)(i). Derivative works,
including collections of works and databases, whether in machine readable or other forms, are also
protected under the same Section in (1)(b)(ii).
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 Papua New Guinea.
Rental rights for copyrighted works are expressed in Section 6 (Economic Rights).  A
copyright owner has rental rights of his original or copy of his work whether it be an audiovisual
work, work embodied in a sound recording, a computer program, a database or a musical work in the
form of notation.  Rental does not apply to rental of a computer program where the program itself is
not the essential object of the rental.
5. Please state the length and terms of protection the copyright law of Papua New Guinea
provides  for a work other than a photographic work or a work of applied art and cite to the relevant
provision of law.
Under Section 17 of the Copyright and Neighbour ing Rights Act 2000, it is provided that -
(a) The author's economic and moral rights are protected during the life of the author and
fifty years after his death.
(b) The same applies for works of joint authorship.
(c) For collective work (other than work of applied art), and in the case of an audio-
visual work, the economic and moral rights are protected for a period of fifty yearsfrom the date on which the work was first made, firs', made to the public or first
published, whichever occurs last.
(d) For works published anonymously or under a pseudonym - the economic and moral
rights shall be protected for a period of 50 years from the date on which the work was
first made, first made available to the public or first published, whichever occurs last,
provided that where the author's identity is revealed or is no longer in doubt before
the expiration of the said period then the period stated in (a) or (b) above apply.
Neighbouring rights
(a) Rights of performers: Protected until the end of the fiftieth calendar year following
the year in which the performance was fixed in a phonogram, or in the absence of
this. the year in which the performance took place;
(b) Rights of producers of sound recordings: The protection lasts fifty calendar years
from the year of the publication of the sound recording, or if not published, from the
year of the fixation of the sound recording
(c) Rights of broadcasting organizations: The protection begins from the moment the
broadcasting takes place until the end of the fiftieth calendar year following the yearin which the broadcast takes place.IP/C/W/292
Page 22
6. Please describe the protection the copyright law of Papua New Guinea provides for
performers, and the term of the protection.
See part (a) in the response to question 5, above, under Neighbouring Rights .
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 14.2requires 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 Papua New Guinea implements these oblig ations and indicate the term of protection.
Section 22 of the Act provides for this in these terms -
"Subject to the express limitations (see (b) below), a producer of a sound recording has the
exclusive right to carry out or authorize the following acts -
(i) The direct or indirect reproduction of the sound recording in any manner or
form; and
(ii) The importation of copies of the sound recording; and
(iii) The making , available to the public by sale or other transfer of ownership of
original or copies of the sound recording that has not already been subject toa distribution authorized by the producer; and
(iv) The rental to the public or public lending of a copy of the sound recording
irrespective of the owner of the copy rented or lent; and
(v) The making available to the public of the sound recording by wire or wireless
means, in such a manner that members of the public may access it from aplace or at a time individually chosen by them
The exceptions referred to above are -
(a) the use of short excerpts for reporting cu rrent events to the extent justified by the
purpose of providing current information; or
(b) reproductions solely for scientific research; or
(c) reproductions solely for the purpose of face-to-face teaching activities except for
performances and phonograms which have been published for teaching or instruction
materials; or
(d) cases where, under part 1 of the response to question 6 above, a work can be used
without the authorization of the author or owner of copyright.
C. TRADEMARKS
8. Please describe the subject matter that can comprise a trademark under the trademark law ofPapua New Guinea.
Any mark that is distinctive or is capable of becoming distinctive is a registrable trademark
and includes a device, brand, heading, label, ticket,  name, signature, word, le tter or numeral, or any
combination of them.IP/C/W/292
Page 23
9. Please describe the procedure that must be followed to register a trademark in Papua New
Guinea, citing the relevant provisions of the law, and describe the rights that the owner of a
registered mark can exercise.
Part V of the Trade Marks Act Chapter 385 and Part IV of the Trade Marks Regulations
provide for the procedure of making an application for trademark registration and the requirements
involved.  In general -
(a) The proprietor of a mark may apply (in person or through his agent) to the Registrar
in the prescribed manner, i.e. by filing and submitting a form 4 (Application for
registration of a trademark).
(b) The application must specify which part of the Register he wishes to register his mark
under and must specify the goods in respect of which the registration of the mark is
sought.
(c) An application can only be made in respect of goods comprised in one class; i.e.
separate applications must be made for different classes of goods.
(d) The application must be submitted with 8 representations of the trademark each
measuring, unless otherwise allowed, 80mm x 60mm.  One copy of the  representation
must be fixed in the space provided for in the form and the rest to be attached to the
form.
(e) The application(s) must be submitted together with the prescribed fee(s).
10. Please provide the length and terms of prot ection that the trademark law of Papua New
Guinea provides for a trademark.
A trademark, once registered, is protected for a term of 10 years.  Renewals of the registration
can be made for further terms of 10 years from time to time.
D. GEOGRAPHICAL INDICATIONS
11. Please describe in detail how the laws of Papua New Guinea 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 geographical indications so
protected.
The current Trade Marks Act does not provide for the protection of geographical indications.
A review of the Act is presently being done and proposed amendments, including this matter, arebeing prepared.
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 Ag reement is implemented, citing to the relevant
provisions of law or regulation, and provide examples of geographical indications for such products.
The present Act does not provide for this .IP/C/W/292
Page 24
E. INDUSTRIAL DESIGNS
13. Please describe the procedure that must be followed to obtain protection for industrialdesigns, citing to the provisions of the law of  Papua New Guinea, and describe the nature of the
protection provided.
(1) Section 43 of the Patents and Industrial Designs Act 2000 provides for application to register
industrial designs.  The application must be filed with the Registrar.
The application must contain -(a) A request in the prescribed form and
(b) Drawings, photographs or other adequate graphic representations of the article
embodying the industrial design; and
(c) An indication of the kind of products for which the industrial design is to be used;
and
(d) Shall be accompanied by the prescribed fee.
(2) Where the applicant is not the creator a statemen t justifying  the right of the applicant to the
registration of the industrial design shall accompany the request.
(3) Two or more industrial designs may be the subject of the same application, provided they
relate to the same class of the international classification or to the same set or composition of
articles.
Protection of industrial designs is mainly judicial.  Infringement of a registered industrial
design carries with it both criminal and civil sanctions.  Penalties include imprisonment for a term of
years, or fines or both.
The Registrar may intervene in infringement cases after being granted leave by the Court.
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.
Textile designs are not expressly stated under the present Act.  The definition of "industrial
designs" is a general definition.  There is no specific or express procedure to obtain protection of
textile designs.
F. PATENTS
15. Please describe in detail the way in which the patent law of Papua New Guinea implements
Article 27 of the TRIPS Agreement, indicating any exceptions provided for, and including details
regarding the protection for micro-organisms and no n-biological and microbiological processes and
plant varieties.  Please cite to the relevant provisions of the law.
Under Section 12 of the Patents and Industrial Designs Act 2000, an invention is patentable if
it:
(a) Is new, i.e. it is not anticipated by prior art, which consists of everything, disclosed to
the public, anywhere in the world, by tangible form, or oral disclosure, or use, or anyother way.IP/C/W/292
Page 25
(b) Involves an inventive step, and
(c) Is industrially applicable. "Industry" in this sense must be construed in its broadest
sense and include handicraft, agriculture, fishery and services.
The Act's provision on "patentable inventions" plus the meaning of "invention" are broad.
However, micro-organisms and non-bi ological and microbiological processes and plant varieties are
not expressly stated in the Act.
16. Please describe in detail the rights provided patent holders under the patent law of Papua
New Guinea and cite to the relevant provisions of law.
Section 29 of the Patents and Industrial Designs Act stipulates the rights conferred by a
patent.  The relevant provisions are as quoted -
(1) The exploitation in Papua New Guinea of a patent invention by persons other than the
owner of the patent is not permitted without the owner of the patent.
(2) The owner of the patent shall, in addition to any other rights, remedies or actions
available to him have the right, subject to Subsection (4) and to Section 32(Exploitation by Government or Persons Authorized by Government), to institute
proceedings in the Court against any person who -
(a) infringes the patent by performing, without the agreement of the owner, any
of the acts which amount to exploi tation of a patented invention; or
(b) performs an act, which makes it likely that the patent will be infringed.
(3) Where the Court finds that a patent has been infringed, or is likely to be infringed, it
may, on the application of the owner of the patent or any other interested person, and
in respect of any person -
(a) grant an injunction, subject to such terms, if any, as the Court thinks fit; or(b) make an order for the inspection of anything in or on any vehicle, vessel,
aircraft, building or premises, and may impose such terms  and give such
directions, if any, in relation to the inspection, as the Court thinks fit, or
(c) award damages; or
(d) order an account of profits.
(4) The rights of an owner of patent shall not extend to-
(a) acts in respect of articles which have been put on the market in Papua New
Guinea by the owner of the patent or with his consent; or
(b) the use of articles on, or in the construction or operation of aircraft, land,
vehicles or vessels of other countries which temporarily or accidentally the
air space, territory or waters of Papua New Guinea; or
(c) acts done only for experimental purposes relating to a patented invention; orIP/C/W/292
Page 26
(d) acts done by any person who, in good faith, before the filing of an application
for grant of patent, or where priority is claimed. the priority date of the
application on which the patent is granted, was exploiting the invention or
was making effective and serious preparation for such exploitation in Papua
New Guinea; or
(e) acts performed by any person who proves that, at the date of any
infringement of a patent, he was not aware, and had no reasonable grounds to
believe, that a patent for the invention existed.
17. Please describe in detail any provisions in the laws of Papua New Guinea 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.
There is no express provision in the Act on this. (However, see generally part 4 of the
response to question 16, above. There is no need to obtain the consent of the owner of a patent where
the Government or an authorized person by the Gove rnment decides to exploit the patented invention
in cases of national emergency, subject to the express conditions in the Act,  which are parallel to
Article 31 of the TRIPS Agreement.
18. What term of protection does the patent law of Papua New Guinea provide for patents?
Please describe any provisions for extension of the term of protection and cite to the relevant
provisions of the law
Section 31(1) provides that subject to the payment of annual patent fees, a patent shall expire
20 years after the filing date of the application for the patent.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
19. Please describe in detail the protection for layout-designs of integrated circuits provided
under the laws of Papua New Guinea, including the term of protection, and cite to the relevant
provisions of law.
This area of IP is not covered by legislation presently.
H.P ROTECTION OF UNDISCLOSED INFORMATION
20. Please describe in detail how the laws of Papua New Guinea provide for the protection of
undisclosed information as required by Article 39.2 of the TRIPS Agreement and provide citations to
the relevant provisions of law.
This is not covered by legislation presently.  However, under Section 30 of the Patents and
Industrial Designs Act 2000, it is provided that in proceeding, where the subject matter of the patent is
a process for obtaining a product, in trying to establish whether a product was obtained by means of
the process, the Court must take into account the in terest of the alleged infringer in not disclosing a
his manufacturing and business secrets, and may make such orders and give such directions as it
thinks fit in order to give effect to that.
21. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical products submitted to the government in order to obtain
marketing approval in Papua New Guinea and ci te to the relevant provisions of law.
There is no specific provision for this under the legislation. (See the response to question 20,
above).IP/C/W/292
Page 27
22. Are other applicants for marketing approval for their own versions of a previously approved
pharmaceutical or agricultural chemical products pe rmitted to rely on data submitted by the earlier
applicant?  If so, how long a period of exclusivity is given the earlier applicant before such reliance
becomes possible.
This is not provided for in any of the present IP legislation.
I. ENFORCEMENT – GENERAL OBLIGATIONS , CIVIL AND ADMINISTRATIVE PROCEDURES AND
REMEDIES AND PROVISIONAL MEASURES
23. Please describe in detail the manner in which the laws of Papua New Guinea provide for
effective action against infringement of intellectual property rights as required by Article 41.1 of the
TRIPS Agreement.
Both civil and criminal action can be instigated under the Acts to enforce a right.
Patents and Industrial Designs
- Civil Procedures (Judicial):
Right owners or any other interested person can take no proceedings under the Act, and if the
other party is found to be infringing their rights or is doing an action that which makes it
likely that the patent or industrial design will be infringed, the Court-
(a) may grant an injunction; or
(b) make an order for the inspection of anything in or on any vessel, vehicle, aircraft,
building, or premises; or
(c) award damages; or
(d) order an account of profits.
- Criminal Procedures (Judicial)
(a) A person convicted on false representations about a patent or industrial design faces a
fine not exceeding PNGK10 000.00, and a default penalty not exceeding
PNGK1000.00
(b) The same maximum fines apply to persons guilty of disobedience to summons to
either appear as a witness before the Registrar, or produce a document required by theRegistrar (if there is no lawful excuse).
(c) On conviction on any general offence under the Act, the penalty of which is not
specified, a fine not exceeding PNGK5000.00 applies.
(d) The Registrar has power under the Act to prosecute any offence under the Act.  Any
other person can do so after obtaining, the written consent of the Registrar.
Copyright
The Court has power to order conservatory and provisional measures under the Copyright and
Neighbouring Rights Act 2000.  Under this power, the regular Courts may -IP/C/W/292
Page 28
(a) grant injunctions, whether interlocutory or perpetual, to prohibit the committing or
continuation of committing of any infringement of copyright; or
(b) order the impounding of copies of work or sound recordings suspected of being made
or imported without the authorization of the right owner where the making orimportation of copies is subject to authorization by the right owner;
(c) order the impounding, of packaging of implements that could be used for the making
of copies of works and sound recordings, and the documents, accounts or business
papers relating to such copies.
- Civil Remedies (Judicial)
(a) The right owner is entitled to payment of damages where his right is infringed,
including the expenses caused by the infringement.  The amount g the importance of
the material, of damages is to be determined considering, the moral prejudice suffered
by the right owner and importance of the infringer's profits attributable to the
infringement.  Where the infringer did not or had no justifiable reason to know he
was engaged in an infringing activity, the damages may be reduced.
(b) Copies of infringing goods may be destroyed unless the right owner requests
otherwise.  This does not apply to third parties where the copies were obtained in
good faith.
(c) Where it appears to the Courts that there is a likelihood of an act of infringement.
continuing, the Court may order that such an act of infringement be ceased.  Failureto comply with this order carries a maximum fine (on conviction) of
PNGK100 000.00.
- Criminal Remedies (Judicial)
(a) A person who infringes any light protected under the Act wilfully or by gross
negligence and for profit making purposes is guilty of an offence and may be liable to
either imprisonment for a term not exceeding 10 years, or a fine not exceeding
PNGK100 000.00 or both;
(b) The provisions of the Criminal Code dealing with search and seizure also applies in
proceedings under this Act; and
(c) The provisions of the Customs Act dealing with illegal goods also applies to articles
and implements used in relation to infringement of rights under this Act.
Trademarks
The Court may grant an injunction against the committing or continuation of committing of
an infringing activity, and, at the option of the plaintiff, either  damages or an account of profits.
Forgery of trademarks, or falsely applying a trademark to goods or producing dies, blocks,
machines or instruments for purposes of forging, a trademark are offences  that attract a maximum of
three years imprisonment or fine not exceeding PNGK2000.00 (Note that the fines under the Trade
Marks Act are presently under review).IP/C/W/292
Page 29
Selling or importing, goods with false marks attracts a maximum fine of PNGK500.00.  The
same maximum fine applies to anyone aiding oral betting, counselling or procuring directly or
indirectly any person in the commission of offence under the Act.
Infringing goods shall be forfeited to the state upon conviction of the person involved in the
infringing activity.
Enforcement agencies include Customs officers and the police, under the various provisions
of the Customs Act and the Criminal Code Act.
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 been unable to obtainsuch evidence from the opposing party.  Please describe how the laws or regulations of Papua New
Guinea provide this authorization, citing to the relevant provisions of law or regulation.
This is not expressly provided for in the current IP legislation. However, it is worth noting
that as soon as any civil proceeding is institute d in Court, the normal Court Rules (National Court
Rules) apply.  The plaintiff can seek an order for discovery or production of documents in thepleadings stage.
25. Please describe in detail the all of the civil remedies that are available to right holders under
the laws of Papua New Guinea, citing to the relevant provisions of law or regulation.
Patents and Industrial Designs
Sections 29 (3) and 49 (3) of the Patents and Industrial Designs Act 2000:
The Court may, in proceedings instituted by the right owner:-
(a) grant an injunction; or
(b) make an order for the inspection of an3nhine, in or on any vessel. vehicle, aircraft,
building or premises; or
(c) award damages; or
(d) order an account of profits.
Copyright
Section 27 of the Copyright and Neighbouring Rights Act 2000:  
(a) The right owner is entitled to payment of damages where is right is infringed,
including the expenses caused by the infringement.  The amount of damages is
determinate upon the importance of the material, the moral prejudice suffered by theright owner and importance of the infringer's profits attributable to the infringement.
Where the infringer did not or had no justifiable reason to know he was engaged in an
infringing activity, the damages may be reduced.
(b) Copies of infringing goods may be destroyed unless the right owner requests
otherwise.  This does not apply to third parties where the copies were obtained ingood faith.IP/C/W/292
Page 30
(c) Where it appears to the Courts that there is a likelihood of an act of infringement
continuing, the Court may order that such an act of infringement be ceased.  Failure
to comply with this order carries a maximum fine (on conviction) of
PNGK100 000.00.
Trademarks
Section 56 of the Trade Marks Act, Chapter 385:  the Court may grant an injunction against
the committing or continuation of committing of an infringing activity, and, at the option of the
plaintiff, either  damages or  an account of profits.
26. Please describe in detail the provisional procedures and remedies available to right holders
under the laws of Papua New Guinea, 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.
Except for the legislation on Copyright, the other body of IP legislation do not expressly
provide for this.  For copyrights, it is stated in Section 26 of the Act as follows -
Conservatory and provisional measures
"(1) The Court shall have the authority, under its civil and criminal jurisdiction, and on
such terms as it may deem reasonable -
(a) to grant injunctions to prohibit the committing or continuance of committing,
of an infringement of any right protected under this Act; or
(b) to order the impounding of copies of works or sound recordings suspected of
being made or imported without the authorization of the owner of any right
protected under this Act where the making or importation of copies is subject
to such authorization; or
(c) to order the impounding or packaging of the implements that could be used
for the making of copies of works and sound recordings, and the documents,
accounts or business papers relating to such copies."
The remedies have been generally explained above.  There is no provision on conditions
under which right holders can avail themselves of the procedures and remedies, except the express
limitations on right owners, as has also being explained.
J. ENFORCEMENT - SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
27. Please describe in detail the procedures under the laws of Papua New Guinea that provide
for border enforcement at least for trademark counterfeiting and copyright piracy, identifying the
competent authority and citing to the relevant provisions of law or regulation.
National Intellectual Property Rights Committee has been set up, and comprises members
from line agencies responsible for the various aspects of enforcement of intellectual property.  A
coordinated effort is in place to ensure the enforcement of border measures, with Customs as the
competent authority. Under this arrangement, it is understood that the rules and procedures applicable
to illegal or prohibited goods will apply.  The Customs agents will be operating under the "TRIPS
Legislation" presently before Parliament, awaiting gazettal.IP/C/W/292
Page 31
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 each form of
intellectual property, citing the relevant provisions of law.
The Acts expressly state this only for infringing goods in copyright and trademarks.
29. Article 58 of the TRIPS Agreement specifies procedures to be followed where the competent
authorities can act ex officio.  Please explain whether the competent authorities in Papua New
Guinea are empowered to act ex officio and, if so, please identify the intellectual property areas
subject to ex officio action.
(Please refer to the response to question 28, above). It is understood that this would be the
case if the goods or aspect of enforcement falls within the ambit of the competent authority.
K. ENFORCEMENT - CRIMINAL PROCEDURES
30. Please describe in detail how the laws of Papua New Guinea 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 therelevant provisions of law and regulation.
This is adequately implemented under both the Copyright and Neighbouring Rights Act 2000
(under Part IV) and the Patents and Industrial Designs Act 2000.
Patents and Industrial Designs
The following is expressed in the legislation -(a) A person convicted on false representations about a patent or industrial design faces a
fine not exceeding PNGK10 000.00, and a default penalty not exceedingPNGK1000.00.
(b) The same maximum fines apply to persons guilty of disobedience to summons to
either appear as a witness before the Registrar, or produce a document required by the
Registrar (if there is no lawful excuse).
(c) On conviction on any general offence under the Act, the penalty of which is not
specified, a fine not exceeding PNGK5000.00 applies,
(d) The Registrar has power under the Act to prosecute any offence under the Act.  Any
other person can do so after obtaining the written consent of the Registrar.
Copyright
(a) A person who infringes any right protected under the Act wilfully or by gross
negligence and for profit making purposes is guilty of an offence and may be liable toeither imprisonment for a term not exceeding 10 years, or a fine not exceeding
PNGK100 000.00 or both.
(b) The provisions of the Criminal Code dealing with search and seizure also applies in
proceedings under this Act; andIP/C/W/292
Page 32
(c) The provisions of the Customs Act dealing with illegal goods also applies to articles
and implements used in relation to infringement of rights under this Act.
Trademarks
The Trade Marks Act makes wilful trademark counterfeiting an offence. Forgery of
trademarks, or falsely applying a trademark to  goods or producing dies, blocks, machines or
instruments for purposes of forging a trademark are offences that attract a maximum of three years
imprisonment or fine not exceeding PNGK2000.00. (N ote that the fines under the Trade Marks Act
are presently under review).
Selling or importing goods with false marks attracts a maximum fine of PNGK500.00.  The
same maximum fine applies to anyone aiding or abetting, counselling or procuring directly orindirectly any person in the commission of an offence under the Act.
Infringing goods shall be forfeited to the state upon conviction of the person involved in the
infringing activity.
31. Article 61 also requires that remedies in appropriate 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 Papua New Guinea
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.
There is an express provision for this under the Trade Marks Act and the Copyright and
Neighbouring Rights Act 2000, under Sections 78 and 27 (4), respectively.  This is not expressly
stated for infringing goods for patents and industrial designs.
32. Article 61 also indicates that Members may provide for criminal procedures and penalties in
cases of wilful infringement of other forms of intellectual property.  Please describe any provisions of
the laws of Papua New Guinea that provide for such procedures and remedies, citing to the relevant
provisions of law or regulation.
Other forms of IP are not expressly stated in any current IP legislation.
L. STATISTICAL QUESTIONS
33. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement
for 2000, including the number of cases filed; injunctions issued; infringing products seized;
infringing equipment seized; cases resolved (i ncluding settlement); and the amount of damages
awarded.
The Patents and Industrial Designs Act 2000 d the Copyright and Neighbouring Rights Act
2000 have been certified but are not yet gazetted for enforcement.  Therefore there are no recorded
statistics for the matters said.  With the regulations presently being finalized, the coming into force of
the Act should be done soon.
Papua New Guinea does not have legislation presently in place for geographical indications.
integrated circuit layout-design and trade secrets.
The Intellectual Property Office of Papua New Guinea, although is the primary Government
IP administrative agency, is not directly involved in issuance of injunctions (a matter for the Courts)IP/C/W/292
Page 33
and seizure of infringing or goods (which is a matter under the responsibility of the Customs agents
and the Police Force).
Most cases of trademark infringement have been settled through civil proceedings in Court.
Thus the amount of damages awarded and the number of cases involved is unknown.  Quite a numberof trademark oppositions have been dealt with in the normal registration process, however, we
understand this question to mean the civil procedures in Court and the subsequent settlements therein.
Our office does not keep a record of these.
34. Please provide statistical information related to  criminal enforcement in the area of copyright
piracy and trademark infringement for 2000, including the number of raids, prosecutions,
convictions, and the amount of fines and/or jail terms (including whether the fines were paid andwhether the jail term was actually served or was suspended) and any other information establishing
that the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
Certain provisions of the Criminal Code are stated to apply for the enforcement of IP laws,
thus the involvement of the Police.  However, see generally, the response to question 33, above, for
copyrights.  For trademarks, this is unknown, for similar reasons as the above.
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