| Title | Law on Patents, Utility Models Certificates and Industrial Designs |
| Type | Law |
| Issuing Agency | Ministry of CommerceMinistry of Commerce |
| Issuing Date | 22/01/2003 |
UNOFFICAL TRANSLATION
Kingdom of Cambodia
Nation Religion King
PREAH REACH KRAM (ROYAL DECREE)
NS/RKM/0103/005 WE
PREAHBAHT SAMDECH PREAH NORODOM SIHANOUK REACH HARIVONG UPHATO SOCHEAT VISOTHIPONG AKAMOHABORASRAT NIKARODOM THAMMIK MOHA REACHEA THIREACH BOROMANEAT BOROMBOPIT PREAH CHAU KRONG KAMPUCHEA THIPDEY
- seen the Constitution of the Kingdom of Cambodia;
- seen the Royal Decree No NS/RKT/1198/72 dated November 30, 1998 on the appointment of the Royal Government of Cambodia;
- seen the Royal Decree No 02/NS/94 dated July 20, 1994 promulgating the Law on the Organization and Functioning the Council of Ministers;
- seen the Royal Decree No NS/ RKM/0196/05 dated January 24, 1996 promulgating the Law on the establishment of the Ministry of Industry, Mines and Energy;
- persuant to the proposals of the Prime Minister of the Royal Government of Cambodia and the Minister of Industry, Mines and Energy;
HEREBY PROMULGATE
the Law on Patents, Utility Model Certificates and Industrial Designs which was
adopted by the National Assembly on November 28, 2002 during the ninth plenary session of its second legislature and ratified by the Senate as to its entire form and legality without any correction on December 31, 2002 during the eight plenary session of its first legislature, the whole meaning of which shall be as follows:
on the Patents,
Utility Model Certificates and Industrial Designs
This Law provides protection for granted patents and utility model certificates and for registered industrial designs in the Kingdom of Cambodia in accordance with this Law and the Patent Cooperation Treaty.
The objective of the Law is:
(i) to encourage innovation and scientific and technological research and development;
(ii) to stimulate and promote increased internal and external commerce and investment;
(iii) to promote the transfer of technology to the Kingdom of Cambodia in order to facilitate industrial activity and the development of the economy; and
(iv) to provide protection for industrial property rights and to combat the infringement thereof, as well as illegal business practices.
CHAPTER 2 PATENTS SECTION 1
Article 3.-
For the purposes of this Law, “patent” means the title granted to protect an invention.
For the purposes of this Law, “invention” means an idea of an inventor which permits in practice the solution to a specific problem in the field of technology.
An invention may be, or may relate to, a product or a process.
The following inventions, shall be excluded from patent protection:
(i) discoveries, scientific theories and mathematical methods;
(ii) schemes, rules or methods for doing business, performing purely mental acts or playing games;
(iii) methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body; this provision shall not apply to products for use in any of those methods;
(iv) pharmaceutical products as provided in Article 136 of this Law;
(v) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals;
(vi) Plants varieties.
An invention is patentable if it :
(i) is new;
(ii) involves an inventive step; and
(iii) is industrially applicable.
An invention is new if it is not anticipated by prior art.
Prior art shall consist of everything disclosed to the public, anywhere in the world, by publication in tangible form or by oral disclosure, by use or in any other way, prior to the filing or, where appropriate, the priority date, of the application claiming the invention.
For the purposes of the 2nd paragraph of this Article, disclosure to the public of the invention shall not be taken into consideration:
(i) if it occurred within twelve (12) months preceding the filing date or, where applicable, the priority date of the application; and
(ii) if it was by reason or in consequence of acts committed by the applicant or his predecessor in title or of an abuse committed by a third party with regard to the applicant or his predecessor in title.
An invention shall be considered as involving an inventive step if, having regard to the prior art relevant to the application claiming the invention and as defined in the 2nd paragraph of Article 6 of this Law, it would not have been obvious to a person having ordinary skill in the art.
An invention shall be considered industrially applicable if it can be made or used in any kind of industry.
The inventions, the commercial exploitation in the Kingdom of Cambodia of which would be contrary to public order or morality, or would not be protected human, animal or plant life or health, or would cause serious prejudice to the environment, or prohibited by law, are excluded from patentability.
Right to Patent; Naming of Inventor
Article 10.-
The right to a patent shall belong to the inventor.
If two or more persons have jointly made an invention, the right to the patent shall belong to them jointly.
If and to the extent to which two or more persons have made the same invention independently of each other, the person whose application has the earliest filing date or, if priority is claimed, the earliest validly claimed priority date shall have the right to the patent, as long as the said application is not withdrawn, abandoned or rejected.
The right to a patent may be assigned, or may be transferred by succession.
Where an invention is made in execution of an employment contract, the right to the patent shall belong, in the absence of contractual provisions to the contrary, to the employer.
The inventor shall be named as such in the patent, unless in a special written declaration signed by him and addressed to the Registrar he indicates that he wishes not to be named. Any promise or undertaking by the inventor made to any person to the effect that he will make such a declaration shall be without legal effect.
Application for a Patent
Article 16.-
The application for a patent shall be filed with the Ministry in charge of industry and shall contain a request, a description, one or more claims, one or more drawings (where required), and an abstract. It shall be subject to the payment of the prescribed application fee, as referred to in Article 130 of this Law.
The request shall contain a petition to the effect that a patent be granted, the name of and other prescribed data concerning the applicant, the inventor and the agent, if any, and the title of the invention.
Where the applicant is not the inventor, the request shall be accompanied by a statement justifying the applicant’s right to the patent.
The description shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person having ordinary skill in the art, and shall, in particular, indicate the best mode known to the applicant for carrying out the invention, at the filing date or, where priority is claimed, at the priority date of the application.
The claim or claims shall define the matter for which protection is sought. The description and the drawings may be used to interpret the claims.
Claims shall be clear and concise. They shall be fully supported by the description.
Drawings shall be required when they are necessary for the understanding of the invention.
The abstract shall merely serve the purpose of technical information; in particular, it shall not be taken into account for the purpose of interpreting the scope of the protection.
The applicant may, up to the time when the application is in order for grant, withdraw the application at any time during its pendency.
Unity of Invention; Amendment and Division of Application
Article 23.-
The application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept.
The applicant may, up to the time when the application is in order for grant, amend the application, provided that the amendment shall not go beyond the disclosure in the initial application.
The applicant may, up to the time when the application is in order for grant, divide the application into two or more applications (“divisional applications”), provided that each divisional application shall not go beyond the disclosure in the initial application.
Each divisional application shall be entitled to the filing date and, where applicable, the priority date of the initial application.
The fact that a patent has been granted on an application that did not comply with the requirement of unity of invention under Article 23 of this Law shall not be a ground for the invalidation of the patent.
Right of Priority
Article 27.-
The application may contain a declaration claiming the priority, as provided for in the Paris Convention, of one or more earlier national, regional or international applications filed by the applicant or his predecessor in title in or for any State party to the said Convention or any Member of the World Trade Organization.
Where the application contains a declaration under Article 27 of this Law, the Registrar may request that the applicant furnish, within the prescribed time limit, a copy of the earlier application certified as correct by the Office with which it was filed.
The effect of the said declaration under Article 27 of this Law shall be as provided in the Paris Convention.
If the Registrar finds that the requirements under Section 5 of Chapter 2 of this Law and the Regulations pertaining thereto have not been fulfilled, the said declaration shall be considered not to have been made.
Information Concerning Corresponding Foreign Applications and Patents
Article 30.-
The applicant shall, at the request of the Registrar, furnish him with the date and number of any application for a patent filed by him abroad (“foreign application”) relating to the same or essentially the same invention as that claimed in the application filed with the Ministry in charge of industry.
The applicant shall, at the request of the Registrar, furnish him with the following documents relating to one or more of the foreign applications referred to in Article 30 of this Law:
(i) a copy of any communication received by the applicant concerning the results of any search or examination carried out in respect of the foreign application;
(ii) a copy of the patent granted on the basis of the foreign application;
(iii) a copy of any final decision rejecting the foreign application or refusing the grant requested in the foreign application.
The applicant shall, at the request of the Registrar, furnish him with a copy of any final decision invalidating the patent granted on the basis of the foreign application referred to in the 1st paragraph of this Article.
Items (i) and (iii) of the 1st paragraph of Article 31 of this Law shall not apply in respect
of information relating to the examination of the same international application in another elected Office where the Registration Department established under Article 117 of this Law, is an elected Office in the meaning of Article 83 of this Law.
Filing Date; Examination
Article 33.-
The Registrar shall accord as the filing date the date of receipt of the application, provided that, at the time of receipt, the application contains:
(i) an express or implicit indication that the granting of a patent is sought;
(ii) indications allowing the identity of the applicant to be established;
(iii) a part which, on the face of it, appears to be a description of an invention.
If the Registrar finds that the application did not, at the time of receipt, fulfill the requirements referred to in the 1st paragraph of this Article, he shall invite the applicant to file the required correction and shall accord as the filing date the date of receipt of the required correction, but if no correction is made, the application shall be treated as if it
had not been filed.
Where the application refers to drawings which in fact are not included in the application, the Registrar shall invite the applicant to furnish the missing drawings. If the applicant complies with the said invitation, the Registrar shall accord as the filing date the date of receipt of the missing drawings. Otherwise, the Registrar shall accord as the filing date the date of receipt of the application and shall treat any reference to the said drawings as non-existent.
After according a filing date, the Registrar shall examine whether the application complies with the requirements of Articles 16 and 17 of this Law and other requirements which are designated as needed regulations of this Law. Where the foreign applications and patents filed in abroad, the registrar shall further examine whether information requested under Article 30, 31 and 32 of this Law, has been provided.
Where the Registrar is of the opinion that the application complies with the requirements indicated in the Article 35, the Registrar shall take a decision as to whether the requirements of the 2nd and 3rd paragraph of Article 3, Articles 4 to 9, Articles18 to 20 and Articles 23 to 26 of this Law and the Regulations pertaining thereto are fulfilled.
The Registrar shall take into account, for the purposes of Article 36 of this Law, as following:
(i) the results of any international search report and any international preliminary examination report established under the PCT in relation to the application; and/or
(ii) a search and examination report submitted under item (i) of the 1st paragraph of Article 31 of this Law relating to, or a final decision submitted under item (iii) of the 1st paragraph of Article 31 of this Law
on the refusal to grant a patent on, a corresponding foreign application; and/or
(iii) a search and examination report which was carried out upon his request by an external search and examination authority.
Grant of Patent; Changes in Patents
Article 38.-
Where the Registrar finds that the conditions referred to in Articles 35 and 36 of this Law are fulfilled, he shall proceed to grant the patent. Otherwise, he shall refuse the application and notify the applicant of that decision.
When he grants a patent, the Registrar shall:
(i) publish a reference to the grant of the patent;
(ii) issue to the applicant a certificate of the grant of the patent and a copy of the patent;
(iii) record the patent;
(iv) make available copies of the patent to the public, on payment of the prescribed fee.
The Registrar shall, upon request of the owner of the patent, make changes in the text or drawings of the patent in order to limit the extent of the protection conferred thereby,
provided that the change would not result in the disclosure contained in the patent going beyond the disclosure contained in the initial application on the basis of which the patent was granted.
Rights Conferred by Patent
Article 41.-
The exploitation of the patented invention in the Kingdom of Cambodia by persons other than the owner of the patent shall require the latter’s agreement.
For the purposes of this Law “exploitation” of a patented invention means any of the following acts:
(i) when the patent has been granted in respect of a product:
(a) making, importing, offering for sale, selling and using the product;
(b) stocking such product for the purposes of offering for sale, selling or using;
(ii) when the patent has been granted in respect of a process:
(a) using the process;
(b) doing any of the acts referred to in items (a) and (b) of the subparagraph (i) of this Article in respect of a product obtained
(c) directly by means of the process.
The owner of the patent shall have the right, subject to Article 44 and Articles 47 to 55 of this Law, to institute court proceedings against any person who infringes the patent by performing, without his agreement, any of the acts referred to in Article 42 of this Law or who performs acts which make it likely that infringement will occur.
The rights under the patent shall not extend:
(i) to acts in respect of articles which have been put on the market in the Kingdom of Cambodia or outside the Kingdom of Cambodia by the owner of the patent or with his consent; or
(ii) to the use of articles on aircraft, land vehicles or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of the Kingdom of Cambodia; or
(iv) to acts done only for experimental purposes relating to a patented invention; or
(iv) to acts performed by any person who in good faith, before the filing or, where priority is claimed, the priority date of the application on which the patent is granted and in the Kingdom of Cambodia, was using the invention or was making effective and serious preparations for such use.
The right of prior user referred to in item (iv) of the 1st paragraph of this Article may be transferred or devolve only together with the enterprise or business, or with that part of the enterprise or business, in which the use or preparations for use have been made.
Duration; Annual Fees
Article 45.-
Subject to Article 46, a patent shall expire twenty (20) years after the filing date of the application for the patent.
In order to maintain the patent or patent application, an annual fee shall be paid in advance to the Registrar for each year, starting one (1) year after the filing date of the application for grant of the patent. A period of grace of six (6) months shall be allowed for the late payment of the annual fee on payment of the prescribed surcharge as referred to in Article 130 of this Law. If an annual fee is not paid in accordance with the provisions of this Article, the patent application shall be deemed to have been withdrawn or the patent shall lapse.
Exploitation by Government or Person thereby Authorized
Article 47.-
The Minister may decide that, even without the agreement of the owner of the patent, a Government agency or a third person designated by the Minister may exploit the invention where:
(i) the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy so requires; or
(ii) a judicial body has determined that the manner of exploitation, by the owner of the patent or his licensee, is anti-competitive.
The exploitation of the invention shall be limited to the purpose for which it was authorized and shall be subject to the payment to the said owner of an adequate remuneration therefor, taking into account the economic value of the Minister's authorization, as determined in the said authorization.
The Minister shall take his decision after hearing the owner of the patent and any interested person if they wish to be heard.
Upon request of the owner of the patent, of the Government agency or of the third person authorized to exploit the patented invention, the Minister may, after hearing the parties, if either or both wish to be heard, vary the terms of the decision authorizing the exploitation of the patented invention to the extent that changed circumstances justify such variation.
Upon request of the owner of the patent, the Minister shall terminate the authorization if he is satisfied, after hearing the parties, if either or both wish to be heard, that the circumstances of items (i) and (ii) in the 1st paragraph of Article 47 of this Law which led to his decision have ceased to exist and are unlikely to recur or that the Government agency or third person designated by him has failed to comply with the terms of the decision.
Notwithstanding the 1st paragraph of this Article , the Minister shall not terminate the authorization if he is satisfied that the need for adequate protection of the legitimate interests of the Government agency or third person designated by him justifies the maintenance of the decision.
Where a third person has been designated by the Minister, the authorization may only be transferred with the enterprise or business of that person or with the part of the enterprise or business within which the patented invention is being exploited.
The authorization shall not exclude:
(i) the conclusion of license contracts by the owner of the patent or the continued exercise, by the owner of the patent, of his rights under Article 42 of this Law; or
(ii) the issuance of a non-voluntary license under Section 12 of Chapter 2 of this Law.
A request for the Minister’s authorization shall be accompanied by evidence that the owner of the patent has received, from the person seeking the authorization, a request for
a contractual license, but that person has been unable to obtain such a license on reasonable commercial terms and conditions and within a reasonable time.
The 1st paragraph of this Article shall not apply in cases of:
(i) national emergency or other circumstances of extreme urgency provided, however, that in such cases the owner of the patent shall be notified of the Minister’s decision as soon as reasonably practicable;
(ii) public non-commercial use; and
(iii) anti-competitive practices determined as such by a judicial body in accordance with Article 47 of this Law.
The exploitation of the invention by the Government agency or third person designated by the Minister shall be predominantly for the supply of the market in the Kingdom of Cambodia.
The exploitation of a patented invention in the field of semi-conductor technology shall only be authorized for public non-commercial use.
Where a judicial body has determined that the manner of exploitation of the patented invention in the field of semi-conductor by the owner of the patent or his licensee, is anti- competitive, the Minister may issue a non-voluntary license to remedy such practice.
The decisions of the Minister under Section 11 of Chapter 2 of this Law may be the subject of an appeal before the competent Court.
Non-Voluntary Licenses
Article 56.-
On the request, made to the Minister after the expiration of a period of four (4) years from the date of filing of the patent application or three (3) years from the date of the grant of the patent, whichever period expires last, the Minister may issue a non-voluntary license if he is satisfied that the patented invention is not exploited or is insufficiently exploited in the Kingdom of Cambodia.
Notwithstanding the 1st paragraph of this Article, a non-voluntary license shall not be issued if the owner of the patent satisfies the Minister that circumstances exist which justify the non-exploitation or insufficient exploitation of the patented invention.
The decision issuing the non-voluntary license shall fix:
(i) the scope and the function of the license;
(ii) the time limit within which the licensee must begin to exploit the patented invention; and
(iii) the amount of the adequate remuneration to be paid to the owner of the patent and the conditions of payment.
The beneficiary of the non-voluntary license shall have the right to exploit the patented invention in the Kingdom of Cambodia according to the terms set out in the decision issuing the license, shall commence the exploitation of the patented invention within the time limit fixed in the said decision and, thereafter, shall exploit the patented invention sufficiently.
Where the invention claimed in the later patent involves an important technical advance of considerable economic importance in relation to the invention claimed in the earlier patent, the Minister, upon the request of the owner of the later patent, may issue a non- voluntary license to the extent necessary to avoid infringement of the earlier patent.
Where a non-voluntary license is issued under Article 59 of this Law, the Minister, upon the request of the owner of the earlier patent, shall issue a non-voluntary license in respect of the later patent.
In the case of a request for the issuance of non-voluntary license under Articles 59 and 60, Article 57 of this Law shall apply mutatis mutandis with the proviso that no time limit needs to be fixed.
In the case of a non-voluntary license issued under Article 59 of this Law, the transfer may be made only with the later patent, or, in the case of a non-voluntary license issued under Article 60 of this Law, only with the earlier patent.
The request for the issuance of a non-voluntary license shall be subject to payment of the prescribed fee, as referred to in Article 130 of this Law.
The 2nd paragraph of Article 47 to Article 55 of this Law shall apply mutatis mutandis
for Section 12 of Chapter 2 of this Law.
Invalidation
Article 65.-
Any interested person may request the competent Court to invalidate a patent.
The competent Court shall invalidate the patent if the person requesting the invalidation proves that any of the requirements of the 2nd and 3rd paragraph of Article 3, Articles 4 to
9 and Articles 18 to 20 of this Law is not fulfilled or if the owner of the patent is not the inventor or his successor in title.
Any invalidated patent, or claim or part of a claim, shall be regarded as null and void from the date of the grant of the patent.
The final decision of the competent Court shall be notified to the Registrar who shall record it and publish a reference thereto as soon as possible.
UTILITY MODEL CERTIFICATES
Protectable Utility Model Certificate
Article 69.-
For the purposes of this Law, a utility model certificate means a certificate which is granted for the protection of a utility model. Utility model means any invention which is new and industrially applicable and may be, or may relate to, a product or process.
SECTION 2
Applicability of Provisions Relating to Patents
With the exclusion of Articles 71 to 74 of this Law, the provisions of Chapter 2 of this Law shall apply, mutatis mutandis, to utility model certificates or applications therefor, as the case may be.
Where the right to a patent conflicts with the right to a utility model certificate in the case referred to in Section 2 of Chapter 2 of this Law, the said provision shall apply as if the word “patent” were replaced by the words “patent or utility model certificate”.
Special Provisions Relating to Utility Model Certificates
Article 71.-
Articles 5 and 7 of this Law shall not apply in the case of inventions for which utility model certificates are requested.
Articles 36 and 45 of this Law shall not apply in the case of applications for utility model certificates.
A utility model certificate shall expire, without any possibility of renewal, at the end of the seventh (7th) year after the date of the filing of the application.
In proceedings under the Articles 65 to 67 of this Law, the competent Court shall invalidate the utility model certificate on any the following grounds:
(i) that the claimed invention did not qualify for a utility model certificate, having regard to Articles 6, 8, 9 and 69 of this Law;
(ii) that the description and the claim do not comply with requirements prescribed by Articles 18 and 19 of this Law and the Regulations pertaining thereto;
(iii) that any drawing which is necessary for the understanding of the invention has not been furnished;
(iv) that the owner of the utility model certificate is not the inventor or his successor in title.
Conversion of Patent Applications or Applications for Utility Model Certificates
Article 75.-
At any time before the grant or refusal of a patent, an applicant for a patent may, upon payment of the prescribed fee, as referred to in Article 130 of this Law, convert his application into an application for a utility model certificate, which shall be accorded the filing date of the initial application.
At any time before the grant or refusal of utility model certificate, an applicant for a utility model certificate may, upon payment of the prescribed fee, as referred to in Article 130 of this Law, convert his application into a patent application, which shall be accorded the filing date of the initial application.
An application may not be converted under Article 75 of this Law more than once.
Interpretation of Terms Concerning the PCT
Article 77 .-
For the purposes of this Law:
(i) “Patent Cooperation Treaty” means the Patent Cooperation Treaty done at Washington on June 19, 1970;
(ii) “designate,” “designated Office,” “elect,” “elected Office,” “international application,” “international filing date,” “international preliminary examination” and “receiving Office” have the same meanings as in the Patent Cooperation Treaty.
Filing Date and Effects of International Application Designating the Kingdom of Cambodia
Article 78.-
An international application designating the Kingdom of Cambodia shall, subject to this Chapter, be treated as an application for a patent or utility model certificate filed under this Law having as its filing date the international filing date accorded under
the Patent Cooperation Treaty.
Registration Department as Receiving Office
Article 79.-
The Registration Department shall act as a receiving Office in respect of any international application filed with it by a resident or national of the Kingdom of Cambodia.
The Minister may make an agreement of the kind referred to in Rule 19.1(b) of the Regulations under the Patent Cooperation Treaty whereby an intergovernmental organization or the national Office of another Contracting State of the Patent Cooperation Treaty shall act instead of the Registration Department as receiving Office for applicants who are residents or nationals of the Kingdom of Cambodia.
Filing of International Applications with the Registration Department
Article 81.-
An international application filed with the Registration Department as receiving Office shall be filed in a prescribed language and the prescribed transmittal fee, as referred to in Article 130 of this Law, shall be paid to the Registration Department.
Registration Department as Designated Office
Article 82.-
The Registration Department shall act as a designated Office in respect of international application in which the Kingdom of Cambodia is designated as provided under Chapter I
of the Patent Cooperation Treaty for the purposes of obtaining a national patent or utility model certificate under this Law.
Registration Department as Elected Office
Article 83.-
The Registration Department shall act as an elected Office in respect of an international application in which the Kingdom of Cambodia is designated as referred to in Article 82 of this Law if the applicant elects the Kingdom of Cambodia as provided under Chapter II of the Patent Cooperation Treaty for the purposes of obtaining a national patent or utility model certificate under this Law.
National Processing
Article 84.-
The Registration Department as designated Office or elected Office shall not commence processing of an international application designating the Kingdom of Cambodia before the expiration of the time limit referred to in Article 85 of this Law, except if the applicant complies with the requirements of that Article and files with the Registration Department an express (urgent) request for early commencement of such processing.
Entering National Phase
Article 85.-
The applicant in respect of international application designating the Kingdom of Cambodia shall, before the expiration of the time limit applicable under Article 22 or 39 of the Patent Cooperation Treaty or of such later time limit as may be prescribed in the Regulations of this Law:
(i) pay the prescribed fee, as referred to in the Article 130 of this Law, to the Registration Department; and
(ii) if the international application was not filed in, or has not been published under the Patent Cooperation Treaty as a translation into the prescribed language, file with the Registration Department a translation of the international application, containing the prescribed contents, into that language.
Failure to Enter National Phase
Article 86.-
If the applicant does not comply with the requirements of Article 85 of this Law within the time limit referred to that Article, the international application shall be considered withdrawn for the purposes of this Law.
Processing International Applications in Accordance with Treaty
Article 87.-
The Registration Department shall process international applications in accordance with the provisions of the Patent Cooperation Treaty, and with the provisions of this Law. In the event of conflict, the provisions of the Patent Cooperation Treaty shall apply. The Regulations under this Law may provide for the processing of international applications in such a case.
Further details concerning the processing of international applications by, and other functions of, the Registration Department in connection with the Patent Cooperation Treaty, including fees payable, time limits and other requirements in relation to international applications, may be included in the Regulations and shall be fulfilled the Article 130 of this Law.
Protectable Industrial Designs
Article 89.-
For the purposes of this Law, any composition of lines or colours or any three- dimensional form, or any material, whether or not associated with lines or colors, is deemed to be an industrial design, provided that such composition, form or material gives a special appearance to a product of industry or handicraft and can serve as a pattern for a product of industry or handicraft, and appeals to and is judged by the eye.
The protection under this Law does not extend to anything in an industrial design which serves solely to obtain a technical result and to the extent that it leaves no freedom as regards arbitrary features of appearance.
Registrable Industrial Designs
Article 91.-
An industrial design is registrable if it is new.
An industrial design shall be considered as new if it has not been disclosed to the public, anywhere in the world, by publication in tangible form or by use or in any other way,
prior to the filing date or, where applicable, the priority date of the application for registration.
For the purpose of the 1st paragraph of this Article, disclosure to the public of the industrial design shall not be taken into consideration:
(i) if it occurred within twelve (12) months preceding the filling date or, where applicable, the priority date of the application;
(ii) if it was by reason or in consequence of acts committed by the applicant or his predecessor in title or of an abuse committed by a third party with regard to the applicant or his predecessor in title.
Industrial designs that are contrary to public order or morality shall not be registrable.
Right to Registration
of Industrial Design; Naming of Creator
Article 94.-
The Articles 10 to 15 of this Law shall apply mutatis mutandis to Section 3 of Chapter 5 of this Law.
Application for Registration of an Industrial Design
Article 95.-
The application for registration of an industrial design shall be filed with the Ministry in charge of industry and shall contain a request, drawings, photographs or other adequate graphic representations of the article embodying the industrial design and an indication of the kind of products for which the industrial design is to be used. It may be accompanied by a specimen of the article embodying the industrial design, where the industrial design is two-dimensional. The application shall be subject to the payment of the prescribed application fee, as referred to in Article 130 of this Law.
Where the applicant is not the creator, the request shall be accompanied by a statement justifying the applicant’s right to the registration of the industrial design.
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.
The application, at the time of filing, may contain a request that the publication of the industrial design, upon registration, be deferred for a period not exceeding twelve (12) months from the date of filing or, if priority is claimed, from the date of priority, of the application.
The applicant may withdraw the application at any time during its pendency.
Right of Priority
Article 100.-
The Articles 27 to 29 of this Law shall apply mutatis mutandis to Section 5 of Chapter 5 of this Law.
Examination; Registration
and Publication of Industrial Design
Article 101.-
The Registrar shall accord as the filing date the date of receipt of the application, provided that, at the time of receipt, the application contains indications allowing the identity of the applicant to be established and the required graphic representation of the article embodying the industrial design.
If the Registrar finds that the application did not, at the time of receipt, fulfill he requirements referred to in the 1st paragraph of this Article, he shall invite the applicant to file the required correction and shall accord as the filing date the date of receipt of the required correction, but if no correction is made, the application shall be treated as if it had not been filed.
After according a filing date, the Registrar shall examine whether:
(i) the application complies with the requirements of Articles 95 and 96 of this Law and the Regulations pertaining thereto;
(ii) the application fee has been paid, as referred to in Article 130 of this Law;
(iii) the industrial design complies with the requirements of Articles 89 to 90, Article 93 of this Law and the Regulations pertaining thereto.
Where the Registrar finds that the conditions referred to in Article 102 of this Law are fulfilled, he shall register the industrial design, publish a reference to the registration and shall proceed to issue to the applicant a certificate of registration of the industrial design; otherwise, he shall refuse the application.
Where a request has been made under Article 98 of this Law for deferment of publication, upon registration of the industrial design, neither the representation of the design nor any file relating to the application shall be open to public inspection. In this case, the Registrar shall publish a mention of the deferment of the publication of the industrial design and information identifying the registered owner, and indicating the filing date of the application, the length of the period for which deferment has been requested and any other prescribed particulars.
At the expiry of the period of deferment, the Registrar shall publish the registered industrial design.
The institution of legal proceedings on the basis of a registered industrial design during the period of deferment of publication shall be subject to the condition that the information contained in the Register and in the file relating to the application has been communicated to the person against whom the action is brought.
Rights Conferred by Registration; Duration; Renewal
Article 105.-
The exploitation of a registered industrial design in the Kingdom of Cambodia by persons other than the registered owner shall require the agreement of the latter.
For the purposes of this Law, “exploitation” of a registered industrial design means the making, selling or importation of articles incorporating the industrial design.
The rights under the registration of industrial design shall not extended to acts in respect of articles which have been put on the market in the Kingdom of Cambodia or outside the Kingdom of Cambodia by the owner of the industrial design or with his consent.
The registered owner of an industrial design shall have the right to institute Court proceedings against any person who infringes the industrial design by performing, without his agreement, any of the acts referred to in Article 106 of this Law or who performs acts which make it likely that infringement will occur.
The registration of an industrial design shall be for a period of five (5) years from the filing date of the application for registration. The registration may be renewed for two further consecutive periods of five (5) years through the payment of the prescribed fee, as referred to in Article 130 of this Law. A period of grace of six (6) months shall be allowed for the late payment of the renewal fee on payment of the prescribed surcharge, as referred to in Article 130 of this Law.
Invalidation
Article 110.-
Any interested person may request the competent Court to invalidate the registration of an industrial design.
The competent Court shall invalidate the registration if the person requesting the invalidation proves that any of the requirements of Section 1 and Section 2 of this Chapter is not fulfilled or if the registered owner of the industrial design is not the creator or his successor in title.
Any industrial design invalidated by the competent Court shall be regarded as null and void from the date of the registration of the industrial design.
The final decision of the competent Court shall be notified to the Registrar who shall record it and publish a reference thereto as soon as possible.
Changes in Ownership; License Contracts
Article 114.-
Any change in the ownership of a patent or utility model certificate or the registration of an industrial design, or in the ownership of an application therefor, shall be in writing and shall, at the request of any interested party, to the Registrar, be recorded and, except in the case of an application, published by the Registrar. Such change shall have no effect against third parties until such recording is effected.
Any license contract concerning a patent or utility model certificate or a registered industrial design, or an application therefor, shall be submitted to the Registrar who shall keep its contents confidential but shall record it and publish a reference thereto. The license contract shall have no effect against third parties until such recording is effected.
Agents
Article 116.-
Where an applicant’s ordinary residence or principal place of business is outside the Kingdom of Cambodia, he shall be represented by an agent residing and practicing in the Kingdom of Cambodia and fulfilled the prescribed requirements.
Organization of the Registration Department
Article 117.-
The Registration Department shall be established within the Ministry in charge of industry, and shall be entrusted with all functions relating to the procedure for:
(i) the grant of patents and utility model certificates and the registration of industrial designs;
(ii) the administration of granted patents and utility model certificates and registered industrial designs as specified in this Law and the Regulations.
Registers; Official Bulletin
Article 118.-
The Ministry in charge of industry shall maintain two separate Registers: one for patents and utility model certificates and another for industrial designs. All the recordings provided for in this Law shall be effected in the said Registers.
The Registers may be consulted by any person, and any person may obtain extracts therefrom, under the conditions prescribed in the Regulations.
The Ministry in charge of industry shall publish in the Official Bulletin all the publications provided for in this Law.
Corrections of Errors; Extension of Time
Article 120.-
The Registrar may, subject to any provision in the Regulations, correct any error of translation, clerical error or mistake in any application or document filed with the Registration Department or in any recording effected pursuant to this Law or the Regulations.
If the Registrar is satisfied that the circumstances justify it, he may, upon receiving a written request, extend the time for doing any act or taking any proceeding under this Law and the Regulations, upon notice to the parties concerned and upon such terms as he may direct. The extension may be granted though the time for doing the act or taking the proceeding has expired.
Exercise of Discretionary Powers
Article 122.-
The Registrar shall give any party to a proceeding before him an opportunity of being heard before exercising adversely to that party any discretionary power vested in him by this Law or the Regulations.
Competence of Court; Appeals
Article 123.-
The competent Court shall have jurisdiction in cases of dispute relating to the application of this Law and the Regulations are to be referred to the competent Court.
Any decision of the Ministry in charge of industry under this Law, in particular the grant of a patent or the grant of a utility model certificate or the registration of an industrial design, or the refusal of an application for such a grant or registration, may be the subject of an appeal by any interested party before the competent Court and such appeal shall be filed within three (3) months of the date of the decision.
Infringement; Unlawful Acts
Article 125.-
An infringement shall consist of the performance of any act referred to in Section 9 of Chapter 2 and Section 7 of Chapter 5 of this Law in the Kingdom of Cambodia by the person other than the owner of the title of protection and without agreement of the latter.
On the request of the owner of the title of protection, or of a licensee if he has requested the owner to institute Court proceedings for a specific relief and the owner has refused or failed to do so, the competent Court may grant an injunction to prevent infringement or an imminent infringement, award damages and grant any other remedy provided for in the general law.
Where the subject matter of the patent or of the utility model certificate is a process for obtaining a product, the burden of establishing that a product was not made by the process shall be on the alleged infringes if the product is new, and the alleged infringer proves that the process to obtain an identical product is different from that process.
In requiring the production of evidence, the competent Court before which the proceedings referred to in Article 127 of this Law take place shall take into account the legitimate interests of the alleged infringer in not disclosing his manufacturing and business secrets.
Application of International Treaties
Article 129.-
The provisions of any international treaties in respect of industrial property to which the Kingdom of Cambodia is a party shall apply to matters dealt with by this Law and, in case of conflict with provisions of this Law, shall prevail over the latter.
Regulations; Administrative Instructions
Article 130.-
The Minister shall issue necessary Regulations prescribing details for the implementation of this Law.
The payment of fees in connection with applications for the grant of patents or utility model certificates and for the registration of industrial designs and matters related thereto shall be prescribed in the joint declaration of the Ministry in charge of industry and the Ministry in charge of finance.
Interpretation
Article 131.-
In this Law:
“International Classification” means the classification according to the Locarno Agreement Establishing an International Classification for Industrial Designs, as last revised;
“Minister” means the Minister in charge of industry;
“Paris Convention” means the Paris Convention for the Protection of Industrial Property of March 20, 1883 as last revised;
“Priority date” means the date of the earlier application that serves as the basis for the right of priority provided for in the Paris Convention;
“Registrar” means the Director of the Registration Department;
“Registration Department” means the Department of Industrial Property, which will be established within the Ministry in charge of industry;
Whoever makes a false statement in any document filed to the Registrar, shall be guilty of an offense punishable by a fine from one million (1,000,000) Riels to five million (5,000,000) Riels or by imprisonment from one (1) month to six (6) months, or by both. The maximum penalty for a repeated offense committed within five (5) years from the date of previous conviction, shall be doubled in both of fine and imprisonment.
Any person who knowingly performs an act which constitutes an infringement as defined in Article 125 of this Law hereof shall be guilty of an offence punishable by a fine from five million (5,000,000) Riels to twenty million (20,000,000) Riels or by imprisonment from one (1 ) year to five (5) years, or by both. The maximum penalty for a repeated offense committed within five (5) years from the date of previous conviction, shall be doubled in both of fine and imprisonment.
Where a person is found guilty of an offense under this Law, the competent Court may order the seizure of which is deemed as state asset and destruction of the infringing goods and of any materials and implement the predominant use of which has been in the commission of the crime.
The competent official, who committed guilty in implementation of own ’s duty provided by this Law, shall be punished in according with administrative offences, which are not considering yet to the others criminal offences.
The pharmaceutical products mentioned in the Article 4 of this Law shall be excluded from patent protection until January 01, 2016, according to the Declaration on Agreement on Trade-Related Aspects of Intellectual Property Rights and Public Health of the
Ministerial Conference of World Trade Organization dated November 14, 2001 in Doha of Qatar.
CHAPTER 9 FINAL PROVISION
Any provisions that contradict to this Law shall be considered as null and void.
Has informed to
Done at the Royal Palace, Phnom Penh Municipality on January 22, 2003
Royal Signature NORODOM SIHANOUK
His Majesty the King for Royal Signature Prime Minister
Signature HUN SEN
Has informed to Samdech Prime Minister
Minister of Industry, Mines and Energy Signature
SUY SEM
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