./.RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/248/Add.3
1 March 2002
(02-1020)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Namibia to follow-up questions posed by Switzerland
Addendum
By means of a communication from the delegation of Namibia, dated 28 February 2002, the
Secretariat has received the following responses  to follow-up questions posed by Switzerland,
circulated in document IP/C/W/239/Add.1.  These questions follow up Namibia's responses circulated
in document IP/C/W/248/Add.1.
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A.P ATENTS
Ad response to question 2:
Please confirm whether your law (the current law and the proposed Bill), in accordance
with Article 27.1 of the TRIPS Agreement in  combination with Article 31 of the TRIPS
Agreement, considers importation as "working/utilising“ a patent (and therefore precludes
compulsory licensing, if a product is being imported).
Current legislation (Patents, Designs, Trade Mark and Copyright Act, 1916 and the Patents,
Designs, Trade Mark and Copyright Proclamati on No. 17 of 1923) provide for grounds on which
compulsory licences are granted or patent revoked (Patents, Designs, Trade Mark and Copyright ActNo. 9 of 1916 Part IV Sections 59 and 60; Patents, Designs, Trade Marks and Copyright Proclamation
No. 17 of 1923 section 5; and Patents, Design s, Trade Mark and Copyright Act No. 37 of 1952
Sections 48, 49 and 50).
The proposed Bill provides for the "working/utilizing" a patent (and therefore precludes
compulsory licensing, if a product is being imported) in Part II Section 17 which provide for rightsconferred by patent and the ARIPO Protocol Pate nts in Sections 19 and 20 which provide for
exploitation by Government or person thereby authorized as well as non-voluntary licences.
Ad response to question 4:
You mention that your legislation (the current law and the proposed Bill) does not
specifically provide for process patent protection. Please explain in detail how your legislation
complies / will comply with the obligation of  Article 34.3 TRIPS Agreement which indicates that
Members shall provide the principle for the reversal of burden of proof in a process patent
litigation, in at least one of the circumst ances mentioned in Article 34.1 of the TRIPS
Agreement.IP/C/W/248/Add.3
Page 2
The earlier response could have created an erroneous impression that process patents are not
provided for, and that is sincerely regretted.
Both the current legislation and the proposed Bill provide for process patents.  However, they
both do not provide for process patents by way of sp ecific substantive provisions.  In both legislation
the definition of an invention and or a patent relates to both product and process patents.  Provisionsfor application, grant, maintenance, infringement action, etc. in both legislations provide in a general
manner for procedures pertaining to both product and process patents (Patents, Designs, Trade Mark
and Copyright Act, 1916, Act No. 9 of 1916 Part I Secti on 6, Part II, Part III, Patents, Designs, Trade
Mark and Copyright Proclamation No. 17 of 1923 section 1(2), Act No. 37 of 1952 sections 56 and
57, the Proposed Bill sections 7(3), 9, 11, 17(5)(b)).
Ad response to question 5:
You mention that in your legislation (the current law and the proposed Bill) there is
not/will not be any specific provision for the protection of undisclosed information.  Please
explain how this complies with the obligations of Article 39.3 of the TRIPS Agreement. Is/will
be Article 39.3 of the TRIPS Agreement di rectly applicable in your legislation?
In discussions between the Office of the Registrar and the Ministry of Justice (Legal Drafting)
it has now been agreed that not providing for specific provisions for the protection of undisclosed
information was a glaring omission in the proposed legislation.  Specific provisions providing for
undisclosed information are being developed and inserted in the proposed Bill in compliance with the
obligations of Article 39.3 of the TRIPS Agreement.
In fact Article 39.3 of the TRIPS Agreement will become directly applicable in the Namibian
legislation.
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