. /.RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/325/Add.3
13 March 2002
(02-1298)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Barbados to follow-up questions posed by Switzerland
Addendum
By means of a communication from the Permanent Mission of Barbados dated 7 March 2002,
the Secretariat has received the following respons es to follow-up questions posed by Switzerland, as
circulated in document IP/C/W/315/Add.1.  These questions follow up Barbados's responses to initial
questions circulated in document IP/C/W/325/Add.1.
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A. PATENTS
Ad response to question 2:
Please explain whether your legislation provides for other exceptions to patent
protection besides the ones mentioned in your answer.
No, as perusal of the Act will confirm, section 11 is the only section in the Patents Act, 2001-
18 which sets out the exceptions to patent protection in Barbados. New plant varieties are not
patentable but are protected by sui generis legislation in the form of the Protection of New Plant
Varieties Act, 2001-17.
Ad response to question 3:
In your answer you mention that importation is not considered as "working" a patent.
Please indicate whether, in Barbados, a compul sory licence on the grounds of non-working can
be issued even if the product is being imported.  If this should be the case, please explain how
this complies with the obligation of Article 27.1, providing that patent rights shall be enjoyable
without discrimination as to whether products are being imported or locally produced.
It should be pointed out that the earlier respon se to question 3 merely answered the specific
question posed by Switzerland regarding whether the Barbados Patents Act, 2001-18 expressly
addressed the issue as to whether importation of a patented product is "working" a patent for
compulsory licensing purposes.  Based on the terminology employed in our Act, importation of a
patented product is not considered to be "working" a patent.  Rather, it is included in the notion of
"exploitation" of a patent.
By way of clarification, attention is drawn to the fact that the Barbados Patents Act, 2001-18
employs the wide term "exploitation" in sections 49 and 50.  The concept "exploitation" is wide
enough to encompass both the notion of the local “working” of the patented process as well as theIP/C/W/325/Add.3
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"importation" of the patented product into Barbados.  See for example section 50(1) of the Patents
Act, 2001-18 which enables an interested person to apply to the High Court for the grant of a non-
voluntary licence under a patent on the ground that the patented invention is not "exploited" or is
"insufficiently exploited" by working the invention locally or by importation in Barbados.
In accordance with Article 31 of TRIPS, section 49 of the Patents Act, 2001-18 permits a
non-voluntary licence to be issued in the public inte rest in the following two (2) situations, either (i)
in cases where the invention is not being "exploited" in Barbados and such "exploitation" is in the
opinion of the Minister necessary in the public interest and (ii) in cases where the manner of
"exploitation" by the patent holder or his licensee has been determined by the High Court to be anti-
competitive.
In these cases, the term "exploitation" covers both the notion of the local "working" of the
patented process as well as the "importation" of the patented product into Barbados and consequently
is in conformity with the obligation of Article 27.1, providing that patent rights shall be enjoyable
without discrimination as to whether products are being imported or not.
Ad response to question 5:
In your answer you mention that your legislation does not provide for the possibility of
the judicial authority to order the reversal of the burden of proof in a process patent litigation.
Please explain how this complies with the ob ligation of Article 34 of the TRIPS Agreement.
It is our understanding that Article 34.1 of the TRIPS Agreement specifies cases in which
contrary to normal evidentiary rules, the judicial authorities may require the alleged infringer to show
that he did not infringe the process patent.  Although the Patents Act does not appear to address the
reversal of the burden of proof explicitly, please  see section 60 of the Patents Act, 2001-18 for  further
assistance regarding the powers of the Hi gh Court in infringement proceedings.
B. PROTECTION OF UNDISCLOSED INFORMATION
Ad response to question 6:
Referring to the issue of unfair commercial use of data submitted by an applicant to the
responsible State Agency in the procedure for market authorization of a pharmaceutical or ofan agricultural chemical product, please speci fy whether the responsible State Agency will
require the same amount of data from a second  applicant requesting market authorization for a
similar or identical product as from the first applicant.
The Barbados Protection Against Unfair Competition Act, 1998-20 does not address this
situation specifically. However, on the principle of equality before the law, it is standard
administrative practice in Barbados for common standards to be applied to the processing of
applications and each successive applicant would be required to produce to the responsible State
Agency the same amount of data or information as was required from the prior applicant.  In other
words, each application will be treated on an equal basis, and successive applicants would be requiredto produce the same amount of data as was required from the first applicant.
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