IP/Q/CUB/1/Add.1, IP/Q2/CUB/1/Add.1  
IP/Q3/CUB/1/Add.1, IP/Q4/CUB/1/Add.1  
 
18 February 2013  
(13-0798)  Page: 1/6  
Council for Trade-Related Aspects of 
Intellectual Property Rights  Original: Spanish  
 
 REVIEW OF LEGISLATION 
CUBA 
Addendum 
The present document reproduces the introducto ry overview of Cuba's intellectual property 
legislation and the changes made to it given by th e delegation of Cuba at the Council's meeting of 
6-7 November 20121 in connection with the review of national implementing legislation initiated at 
the Council's meeting of 27-28 November 2001.  
1  INTRODUCTIORY STATEMENT 
1.  In November 2001, Cuba commenced review of the implementing legislation for the 
TRIPS Agreement. At that time, it submitted Decree-Law No. 203 of 24 December 1999 on 
"Trademarks and Other Distinctive Signs" and its implementing regulations, approved by 
Resolution No. 63/2000 of 22 May 2000, together with the legislation supplementing the measures on compliance and the replies to the Checklist of Issues on this topic. 
2.  Subsequently, in 2002, it submitted Decree-Law No. 228 of 20 February 2002 on "Geographical 
Indications" and the replies to the Checklist of Questions pursuant to Article 24.2 of the Agreement. 
3.  This legislation complies fully with the TRIPS Agreement. On this occasion, the 16 international 
agreements to which the Republic of Cuba is party were also presented, underlining Cuba's 
commitment and its understanding that intellectual property contributes towards effective integration into the international system provided that the objectives of government policies and 
socio-economic development interests are not jeopardized. 
4.  Cuba also has a long-standing tradition of respect for the intellectual property rights granted to 
institutions and companies belonging to the international community of nations, without 
discrimination, on the basis of international commitments incorporated into its national legislation. 
5.  After expiry of the term laid down in the TRIPS Agreement, in January 2005, our country was, 
however, unable to continue the review of the legislation that is the subject of today's presentation, i.e. laws on patents, industrial designs, new plant varieties and layout-designs 
of integrated circuits, which are the subj ect of Decree-Laws Nos. 290, 291 and 292 
of 20 November 2011, respectively, and entered into force in April 2012. 
6.  Since November 2001, the process of circulating and adapting this legislation has continued 
and Resolution No. 21/2002 of 28 February 2002 of the Ministry of Science, Technology and the 
Environment was adopted, giving effect to the Na tional Industrial Property System, which is an 
important tool for the organization of Cuba's industrial property responsibilities. 
7.  The System defines the objectives, principles and guidelines that must be applied. Reading and 
examining these highlights, the work carried out at the national level to enable each ministry and entity, starting by promoting the appropriate mi ndset, to have a division, department or group 
                                               
1 The minutes of the meeting have been circulated in document IP/C/M/71. IP/Q/CUB/1/Add.1 • IP/Q2/CUB/1/Add.1 • IP/Q3/CUB/1/Add.1 • IP/Q4/CUB/1/Add.1 
 
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  whose daily tasks include observance and respect fo r the rights conferred by the various forms of 
industrial property to Cuban citizens and foreigners when managing, developing, legally protecting, marketing or transferring to third parties the results of national technological innovation, including the acquisition of foreign technology. 
8.  Before commenting on the legislation on pate nts, industrial designs, new plant varieties and 
layout-designs of integrated circuits, we consider it necessary to reiterate certain considerations, some of which were expressed when review of the implementing legislation commenced. 
 The regulatory framework for the new legi slation required a process of analysis 
and maturation involving the various national au thorities, making it possible for the system 
for the granting of intellectual property rights, both to Cuban citizens and foreigners, to be a credible method of development, even th ough the TRIPS Agreement poses substantial 
problems for less developed economies, despite its obvious flexibility, which is essentially 
based on foreign standards used as a re ference for implanting alien realities. 
 For Cuba, intellectual property rights are not an end in themselves but rather a conduit for 
its own development strategies and its government policies so, despite the use of the 
flexibility, when drawing up legislation it is a challenge to strike a balance between the rights and obligations of rights holders vis-à-vis  the public interests of society, Cuba's technological 
development and private profit. These princi ples have governed the drafting of the 
legislation under review, which is wholly consistent with the rules in the TRIPS Agreement. 
 It does not, however, suffice to repeat that the rules in the TRIPS Agreement, although they 
are supposedly based on non-discrimination, do not in themselves by any means guarantee 
equity because they do not take into account the important differences in the levels of 
development of the countries wh ich have to apply the rules. 
 To this conclusion must be added the special situation of Cuba, which cannot be ignored 
during this review. It is a country that for over 60 years has stoically and valiantly borne 
with an arbitrary and unjustifiable blockade in the form of a web of laws, regulations and provisions that make up the policy of blockading Cuba. Despite the rhetoric and the fiery 
discourse by which it is sought to justify before international public opinion what is 
unjustifiable, the truth is that the free development of trade with companies in third countries interested in trade and investment in Cuba remains hampered. They are systematically threatened, sanctioned and/or placed on black lists. Naturally, trade with 
subsidiaries of North American companies in third countries is also impossible. 
 These various discriminatory regulations on the blockade have relatively recently been 
extended to the intellectual property sphere with Section 211 of the 1998 United States 
Omnibus Appropriations Act, well known to Memb ers. I do not think it necessary to repeat 
what Cuba has already tirelessly denounced and complained of in the Dispute Settlement Body and in other forums, but it must be explai ned that this has also been the backdrop to 
the drafting of legislation, notably becaus e this WTO Member, which has to respect the 
commitments of which it has been the arch itect and protagonist, by means of an 
unprecedented blatant manoeuvre fails to comply with its own legislation and "resuscitates" abandoned, and therefore non-existent, rights in trademarks with the clear objective of 
depriving a Cuban company of its trademark, Havana Club, lawfully registered in conformity 
with the law and in force in Cuba for many years. This contempt and this manoeuvre constitute a warning which my country cannot ignore. 
9.  This inescapably leads to another consideration, the use of intellectual property rights resulting 
from application of the TRIPS Agreement combined with the regulations on a blockade becomes yet another measure to prevent access to medicines,  food and other vital goods of various types in 
order to pursue the intent to asphyxiate and subjugate, displaying open contempt, for example, 
for the deaths of children, among other patients , because they were denied access to vital 
medicines, just to mention this sad fact. 
10.  Bearing in mind this situation in which Cuba had to draw up the legislation presented today, 
below there is a summary describing the bases for this legislation and the major amendments, 
whose objective is to combine apparently irreconcilable public and private interests and rights, in IP/Q/CUB/1/Add.1 • IP/Q2/CUB/1/Add.1 • IP/Q3/CUB/1/Add.1 • IP/Q4/CUB/1/Add.1 
 
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  compliance with the TRIPS Agreement. The Decree-Law on Inventions and Industrial Designs 
regulates the rights of owners of these forms of rights in a manner consistent with the provisions in the TRIPS Agreement, as regards both patents for products and for processes so the inventors' certificate has been abolished as protection for such rights. 
11.  The state of the art is defined and includes indigenous or local knowledge made available to 
the public. Protection is given for inventions that constitute solutions of a technical nature and meet the requirements of novelty and an inventive step and are capable of industrial application, 
distinguishing the categories of objects that do not constitute inventions from those that are not 
patentable, making use of the flexibility in the Agreement and, in particular, the difference between discoveries and technical solutions derived from creative activity. 
12.  It provides that protection is only given for micro-organisms transformed through direct 
human intervention in their genetic composition using exogenous genetic material and which 
express a characteristic that the species does not normally show under natural conditions. All or parts of plants or animals are excepted. 
13.  Biological material must be deposited with an authorized institution, meaning one officially 
recognized by depositary authorities and classifi ed as such in accordance with the Budapest 
Treaty, to which the Republic of Cuba has been party since 1994. 
14.  A copy of the prior express authorization i ssued by the competent authority is required for 
access to the biological material if the subject-matter of a patent application is based on biological material, including genetic material and parts or byproducts thereof where Cuba is the country of origin or which are present in domesticated or cultivated species in Cuba. 
15.  If this is not the case, a declaration stating that the biological material has not been obtained 
in the territory of the Republic of Cuba must be provided, indicating the country of origin and source of the biological material and the associat ed traditional knowledge, together with the prior 
informed consent if this is available to the applicant. 
16.  Resolution No. 111/96 of 14 October 1996 on "Regulations on Biological Diversity" of the 
Ministry of Science, Technology and the Environm ent lays down the aforementioned requirements. 
17.  Industrial designs are defined according to their aesthetic or ornamental characteristics 
and the designs excluded from protection are identified, notably those based on technical or functional considerations. 
18.  The term of the rights conferred by patent s, subject to payment of the annual fees, is 20 
years as of the date of filing the application, and fo r industrial designs it is ten years, also from the 
same date and subject to payment of the annual fees. 
19.  Limits to the exercise of rights are determined. These include the usual restrictions and 
exceptions, as well as those concerning international exhaustion of rights and experimental acts 
intended for the purpose of registration with the health authorities. Compulsory licences are fully 
regulated in the Decree-Law. These are granted for reasons of public interest or to prevent abuse 
resulting from the exercise of an exclusive right. Th e situations constituting abuse of exercise of an 
exclusive right are specified. 
20.  Exploitation in these provisions means both  the import of products and their production 
in Cuba. 
21.  Compulsory licences may be granted in exceptional situations, as well as in cases of 
non-commercial public use, and it is provided that if there are serious public health problems or other extreme emergency situations, either in the Republic of Cuba or in another country, and if 
the pharmaceutical industry has no or insufficient capacity, compulsory import or export licences 
may be granted, in accordance with the Republic of Cuba's international commitments embodied in 
supplementary legislation, not yet enacted, an d up until now they have been based on the 
Decision referring to the TRIPS Agreement and compulsory licences. IP/Q/CUB/1/Add.1 • IP/Q2/CUB/1/Add.1 • IP/Q3/CUB/1/Add.1 • IP/Q4/CUB/1/Add.1 
 
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  22.  Other provisions of the TRIPS Agreement on  compulsory licences not mentioned are also 
included. 
23.  Compulsory licences may not be granted for industrial designs. 24.  A remedy of appeal is included in the substantive examination procedure, both for patents 
and for industrial designs. An appeal may be lo dged either by the applicant or by the person 
opposing the application, allowing for a new examination or an agreement between the parties, and when this is concluded a final resolution is i ssued and may be the subject of an appeal to the 
courts. 
25.  The legislation includes provisions on proceedings before the courts and measures to prevent 
infringement of rights. The applicant may request a court to order immediate preventive measures. These may also be requested before draw ing up the application, together with it, or 
subsequently. The preventive measures that may be imposed are specified, together with other 
provisions on such measures, and matters relating to definitive substantive measures are regulated. 
26.  It is determined, in particular, that when the subject-matter of a patent is a process for the 
purpose of obtaining a product, unless proved othe rwise, it is assumed that any identical product 
has been obtained using the patented procedure, provided that the product obtained is new. The 
defendant must prove the foregoing and the court must adopt the necessary measures to ensure 
protection of the confidential information concerning the process. 
27.  The legislation includes measures on complianc e at the border that are the responsibility of 
the General Customs of the Republic, which may be taken ex officio or following an order by the 
competent provincial people's court. 
28.  It is also provided that the judicial proceedings regulated by Decree-Law No. 290 are 
governed supplementarily by the provisions in the current legislation on judicial proceedings. 
29.  Utility models can be protected on the basis of the same protection requirements as patents, 
but this form of protection only applies to inventions that consist of a shape, structure or arrangement of a product or parts thereof resulting in a functional improvement in its utilization. 
The term is ten years and the examination period is shorter. Provision is made for applications to 
convert the form of protection. Taking 1 January  2005 as the starting point, the Transitional 
Provisions determine the rights and obligations of applicants and holders of rights conferred by Inventors' Certificates and Industrial Designers' Certificates submitted before or after this date. 
30.  Also with 1 January 2005 as the starting point, the rights and obligations of applicants and 
holders of Patent Certificates and Industrial Design  Certificates submitted before or after this date 
are determined. 
31.  These Transitional Provisions take account  of the commitments pursuant to paragraphs 2 
and 7 of Article 70 on existing subject-matter and pending applications at the time of entry into 
force of the Agreement, notably as regards the righ t to claim greater protection provided that new 
subject-matter is not included. 
32.  Lastly, taking into account the introductory elements described, based on facts and 
considerations, this legislation includes a Final Provision allowing for the possibility of adopting measures requested by the Government of the Repub lic of Cuba in order to protect its security and 
in situations in which it has to confront unilateral, discriminatory, arbitrary and unjustified 
measures taken by any other State that fails to comply with the reciprocal treatment determined in international agreements, leading to nullification or impairment of the rights of Cuban natural or 
legal persons in Cuba or elsewhere. 
33.  This Final Provision also applies to the matters regulated in Decree-Laws Nos. 291 and 292 
which refer, respectively, to new plant varieties and layout-designs of integrated circuits. 
34.  The implementing regulations for this Decree-Law have not been finalized. A period 
of 12 months as of the date of entry into force of the Decree-Law has been given for their drafting IP/Q/CUB/1/Add.1 • IP/Q2/CUB/1/Add.1 • IP/Q3/CUB/1/Add.1 • IP/Q4/CUB/1/Add.1 
 
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  and approval by the competent authority. They ar e being drawn up and should enter into force as 
soon as the competent government authority has approved them, at the latest by July 2013. 
35.  Decree-Law No. 291 on the protection of new plant varieties governs the protection of this 
form of creation. 
36.  There was no previous legislation regulating the protection of new varieties of plants, 
which were protected under the patent legislation now repealed and on the basis of its provisions. 
37.  The legislation includes provisions from the UPOV regime, some of which essentially 
correspond to the 1978 Act even though Cuba is not a member of this organization. Other 
provisions in the regime are not compatible with sustainable development objectives for the population's food and nutrition needs or with public and agricultural policy requirements. 
38.  All new varieties of plant genera and species are protected, including hybrids, but it is 
provided that this protection is to be impl emented gradually for those genera and species 
specifically determined. New plant varieties are determined consistently with the UPOV regime and their protection is regulated through breeders' ri ghts granted to natural persons who create a new 
plant variety; plant varieties that are discovered are excluded. 
39.  Breeders' rights are valid for 15 years as of the date of filing the application and for 18 years 
for other genera (vines, forest trees, fruit trees and ornamental trees). 
40.  The rights of holders of breeders' certificates are regulated as regards vegetative reproduction 
or propagation of the new variety as such. 
41.  There are limits on breeders' rights and their international exhaustion is covered. 42.  There are regulations on compulsory licence s, which may be granted for reasons of public 
interest, for non-commercial public use, in special situations or to remedy acts or conduct that 
constitute abuse of rights on the part of the ow ner, or acts that cause or may cause unjustified 
economic harm to the national economy, withou t prejudice to the holder's right to receive 
adequate remuneration according to the circumstances of each case and the economic value of the 
authorization. 
43.  Farmers are given the right to use the prod uct of the crop obtained using the protected 
variety for the purposes of reproduction or propagation on their own farms. 
44.  The novelty, distinctiveness, homogeneity and stability requirements are defined according 
to the UPOV regime and the new variety seeking protection must be given a name and meet other requirements. 
45.  The procedure for examining the new plant variety seeking protection is regulated and 
involves the Cuban Industrial Property Office an d the Ministry of Agriculture, which each have 
specific responsibilities, including determination of the form of the examination, for which there 
are various options (to be conducted by a Cuban specialized institution or by a similar foreign 
institution or on the basis of the results of a technical examination carried out by a similar foreign authority or on the basis of the results of the comparative tests of cultivars by the breeder). 
46.  It is the responsibility of the Ministry of Agriculture to determine the rules applicable to the 
technical examination for each species or group of species. 
47.  The appeal remedy applicable to the proc edure for examining and granting of patents and 
industrial designs also applies to the procedure for examining and granting breeders' rights. 
48.  Transitional Provisions have been introduced  because of the existence of pending applications 
for inventors' certificates for the protection of new plant varieties under the patent legislation now repealed. IP/Q/CUB/1/Add.1 • IP/Q2/CUB/1/Add.1 • IP/Q3/CUB/1/Add.1 • IP/Q4/CUB/1/Add.1 
 
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  49.  There is a Final Provision under which, inasmuch as it is applicable and not regulated in the 
Decree-Law on the protection of new plant varieties, Decree-Law No. 290 on inventions and industrial designs and the relevant civil law apply supplementarily. 
50.  Resolution No. 1651/2012 of 17 August 2012 specifically determines the genera and species, 
including hybrids, to which protection applies. 
51.  Decree-Law No. 292 on layout-designs of integrated circuits regulates the protection of this 
form of creation and incorporates the TRIPS Agreem ent's provisions, as well as those of the Treaty 
on Intellectual Property in respect of Integrated Circuits. 
52.  The protection given is based on exclusive rights and can only be invoked if an application for 
registration is made. 
53.  The requirements which a layout-design has to meet in order to be eligible for protection 
are regulated: originality and no commercial exploitation prior to the date of filing the application 
for protection. An exception is made for a layout-design that has been commercially exploited. 
54.  The term of the right is ten years as of th e filing of the application or the first commercial 
exploitation of the layout-design, either separate ly or incorporated into an integrated circuit, 
whichever is earlier, and is subject to payment of the annual fees. 
55.  Holders' rights are regulated and limits to the exercise of exclusive rights are defined, 
including international exhaustion. 
56.  It is provided that, inasmuch as it is applicable and not regulated in these legislative texts, 
the regulations in Decree-Law No. 290 on inventions and industrial designs and the relevant civil law apply supplementarily. 
57.  Lastly, it should be pointed out that, of the 69 questions put to Cuba, without prejudice to 
the 28 to which replies were given at the beginning of the review of the implementing legislation, 
on this occasion replies have been given to 27 questions that were pending concerning the issues 
covered and were put by the European Community and its Member States, by Japan, Switzerland, 
Australia and Canada. 
58.  Nevertheless, 14 questions, some of them repeat questions, have still not been answered and 
concern the regulations on copyright and related rights, not yet approved, and the regulations on 
unfair industrial and trade practices. This topic is  the subject of a draft Decree-Law that includes 
regulations on undisclosed information and is being circulated among and discussed by Cuba's competent authorities. Without prejudice to the foregoing, for the review of trademarks 
and other distinctive signs, the previous legislation already provides that those which may or do 
give rise to acts of unfair competition may not be registered. 
59.  Lastly, Cuba welcomes the interest shown by Members through the questions posed and is 
ready to respond rapidly to any additional ques tions they may put on the legislation presented 
today or on that presented previously. 
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