FTAA - Free Trade Area of the Americas
Draft Agreement
Chapter on Intellectual Property Rights
(Continuation)
4) PROTECTION OF FOLKLORE
Article XX. [Protection of Folklore]
[1. The Parties shall ensure effective protection of all expressions of folklore, particularly those forms that are the product of the traditional and folk culture of indigenous, Afro-American and native cultures.]
[1. Each of the Parties shall protect traditional and popular culture manifested in any kind of folklore expression and production, as well as creations of popular art or craftwork.]
[1. Each Party shall protect the literary, artistic, folk art and crafts, as well as all the indigenous expressions in their own languages, and the uses, customs and traditions of pluricultural composition originating from each of the Parties which do not have an identifiable author.
2. Each Party shall protect literary, artistic, folk art and crafts developed and perpetuated in a community or ethnic group originating from or having its roots in each of the Parties against any distortion caused with the intent to damage or affect the reputation or image of the community or ethnic group to which it belongs.
3. Each Party shall stipulate that in any fixation, representation or publication, communication or use in any form of a literary, artistic, folk art and crafts shall mention the community or ethnic group to which it belongs.]
[1. Each Party shall ensure the effective protection of all expressions of folklore and artistic expressions of the traditional and popular culture of indigenous and local communities.]
5) LAYOUT-DESIGNS OF INTEGRATED CIRCUITS
[Article XX. Layout-designs of integrated circuits
Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as “layout-designs”) in accordance with Article 35 TRIPs, and in addition, to comply with the following provisions.
[Article XX.
The Parties agree to provide protection to layout designs (topographies) of integrated circuits (referred to in this Agreement as “layout designs”) in accordance with Article 35 of the TRIPS Agreement.
]
[Article XX. Layout-designs of integrated circuits
Members agree that the protection conferred on topographies of integrated circuits shall be that provided in Section 6 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement,
1994).]
[ Article XX. Scope of the Protection
Subject to the provisions of Article xx, Members shall consider unlawful the following acts if performed without the authorization of the right holder: importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout-design.
]
[ Article XX. Scope of Protection
Without prejudice to what is stipulated in paragraph 1 of the next article, the Parties shall deem the following acts as illicit, if they are produced without the consent of the copyright holder9 : the importation, sale or distribution by a different method for commercial purposes of a protected diagram drawing, an integrated circuit containing a protected diagram drawing or a product with that integrated circuit, only if they continue to contain an illicitly reproduced diagram drawing.
]
[ Article XX. Acts Not Requiring the Authorization of the Right Holder
1. Notwithstanding Article xx, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in respect of such a layout-design.
2. The conditions set out in subparagraphs (a) through (k) of Article xx (Patents) shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.
[ Article XX. Acts Not Requiring the Authorization of the Right Holder
1. Without prejudice to what was stipulated in the previous article, a Party shall consider none of the aforementioned acts as illicit in reference to an integrated circuit containing an illicitly reproduced diagram drawing or with any product having such an integrated circuit, when the person carrying out or ordering those actions is not aware and had no reasonable motive to know that, upon reception of that integrated circuit or product containing such an integrated circuit, it contained an illicitly reproduced diagram drawing. The Parties shall establish that after the person has had sufficient notice that the diagram drawing was illicitly reproduced, that person may complete any activity with the existing product or that was requested prior to that moment. However, he may be asked to pay the copyright holder an amount of money equal to a reasonable royalty that he would have had to pay for a freely negotiated license for such a diagram drawing.
2.
The conditions set out in sections a) to k) in article XX (Other Uses without the Consent of the Copyright Holder) shall apply, mutatis mutandis, whenever a license is granted, unwillingly, for diagram drawings or when they are used by and for government without the consent of the copyright holder.
]
[ Article XX. Term of Protection
1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.
2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than 10 years from the date of the first commercial exploitation wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2, a Member may provide that protection shall lapse 15 years after the creation of the
layout-design.]
[ Article XX. Term of Protection
1. In Parties where registration is required as a condition for protection, the duration of protection of layout designs shall last no less than ten years counted either from the date the registration application was filed, or from the date of its first commercial exploitation in any part of the world.
2. In Parties where registration is not required as a condition for protection, layout designs shall remain protected for a period of no less than 10 years counted from the date of their first commercial exploitation in any part of the world.
3. Notwithstanding paragraphs 1 and 2 above, any Party may establish that protection shall cease fifteeen (15) years after creation of the layout design.
]
[ Article XX. Term of Protection
1. Where each Party requires registration as a condition for protection, the protection of the diagram drawings shall not expire for a period of 10 years, beginning on the date when the registration request submission was made.
]
[Article XX. Definitions
1. The following shall be understood to mean:
a) Integrated circuit: a product, in its final or intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function.
b) Lay-out design: the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture.
2. A lay-out design shall be protected when original.
3. A lay-out design shall be considered to be original when it is the result of an intellectual effort by its creator and is not common in the industrial sector of integrated circuits.
4. When a lay-out design is made up of one or more elements that are common in the industrial sector of integrated circuits, it shall be considered to be original if the combination of such elements, as a whole, meet that condition.]
[Article XX. Definitions
1. Integrated circuit: a product, in final or intermediate form, whose elements, of which at least one is an active element, or one or all of its interconnections, form an integral part of the body or surface of a piece of material, which is designed to perform an electronic function.
2. Layout design: a three-dimensional design, in any medium, of the elements, of which at least one is active, and the interconnections, of an integrated circuit; as well as a three-dimensional arrangement prepared for an integrated circuit destined for manufacture. ]
[ Article XX. Condition for protection
1. A layout design shall be protected if it is original. A layout design shall be considered original if it is the result of its designer’s own intellectual effort, and was not current in the integrated circuits industry sector.
2. If a layout design consists of one or more elements that are current in the integrated circuits industry sector, it shall be considered original if the combination of such elements, as a whole, comply with the above condition. ]
[Article XX. Layout-designs of integrated circuits
1. Each Party shall protect the lay-out designs (topographies) of integrated circuits (lay-out designs) in accordance with Articles 2 through 7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits, adopted on 26 May 1989.
2. Each Party shall consider it unlawful for any person to import, sell, or otherwise distribute for commercial purposes without the authorization of the right holder:
a) a protected lay-out design;
b) an integrated circuit in which a protected layout-design is incorporated;
c) an article incorporating such an integrated circuit only in so far as it contains an unlawfully reproduced layout-design.
3. No Party shall consider unlawful the performance of any of the acts in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design.
4. Each Party shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated license in respect of such a layout-design.
5. No Party shall permit obligatory licenses of lay-out designs of integrated circuits.
6. Parties requiring registration as a condition of protection of lay-out designs, shall stipulate that the term of protection shall not end before the expiration of a period of 10 years counted from the date:
a) of filing an application for registration; or
b)
from the first commercial exploitation wherever in the world it occurs.
7. When a Party does not require registration as a condition for protection, the Party shall provide that layout-designs be protected for a term of no less than 10 years from the date of the first commercial exploitation of the lay-out design, wherever in the world it occurs.
8. Parties shall provide that protection shall lapse 15 years after the creation of the
layout-design.]
6) PATENTS
[Article XX. Patents
1. Article 27bis of the TRIPs agreement , mutatis mutandis, shall apply in regards to patents. The provisions of this paragraph shall be reviewed 5 years after the date of entry of the FTAA agreement
]
[Article XX. Patentable Material
Without prejudice to what is set out in paragraphs 2 and 3, patents shall be granted for inventions, in all technological fields, for products or procedures, as long as they are novel, are the result of an inventive activity and may have an industrial application.
Subject to the provisions of paragraph 3, there shall be no discrimination in the granting of patents, or in benefiting from the corresponding rights, on the basis of technological field, territory of the Party which the invention was made, or whether the products were imported or produced locally.
Each Party may refuse to grant patents on inventions whose commercial use should be prevented in their territory to protect public order or morals, or to protect human, animal or plant health or life, or to avoid serious damage to nature or the environment, provided that exclusion is not made merely because its exploitation is prohibited by the legislation of the Party.
In addition, each Party may refuse to grant patents on plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Parties shall provide for the protection of plant varieties either by patents or by an effective
sui generis system or by any combination
thereof.]
[ Article XX. Concept of invention
Each of the Parties shall consider as an invention any human creation that makes it possible to transform material or energy existing in nature, for exploitation in the immediate satisfaction of a concrete need.
Article XX. The following shall not be considered inventions
a) Material that does not satisfy the definition of invention;
b) Theoretical or scientific principles;
c) Discoveries that consist of making known or revealing something already existing in nature, although previously unknown to man;
d) Biological material existing in nature;
e) Schemes, plans, rules and methods for performing mental acts, games or businesses;
f) Individual computer programs;
g) Modes of presentation of information;
h) Aesthetic creations and artistic or literary works
i) Diagnostic, therapeutic and surgical methods for the treatment of the human body and animals;
J) The juxtaposition of previously known inventions or mixtures of known products, variations in their form, dimensions or materials, except when in reality such combination or fusion does not function separately, or where the qualities or functions characteristic thereof are modified to obtain an industrial result that is non-obvious to a technical specialist in the respective field.
Article XX. The following shall not be patentable
The Parties shall not grant patents to:
a) Essentially biological processes for obtaining or reproducing plants, animals or varieties thereof, including genetic processes or those relating to material capable of self-duplication, alone or by any other indirect means, when they consist of selecting or isolating available biological material and allowing it to act under natural conditions; and,
b) Plant varieties and species and animal species and races. ]
[Article XX. Patentable Subject Matter and Exceptions to Patentability
1. Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.
a) An invention shall be considered novel when it is not included in the prior art. Prior art means the body of technical knowledge made public before the filing date of the patent application, or where applicable, the priority date granted; by means of an oral or written description, by exploitation or any other means of dissemination or information anywhere in the world.
b) Inventive step shall exist when the creative process of the results thereof cannot be deduced from the prior art in an obvious manner by a person skilled in the relevant art.
c) Industrial application shall exist when the object of the invention is conducive to achievement of a result or a product that can be used or produced in any type of industry.
2. The following, inter alia, shall not be considered as inventions:
a) discoveries;
b) all biological and genetic material existing in nature or a replica thereof, in the biological processes implicit in animal, plant and human reproduction, including genetic processes involving material of such a nature as to produce a replica of itself under normal and free conditions as in nature.
3. Subject to the exceptions in this Agreement, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether the products are imported or locally produced.
4. Members may exclude from patentability inventions, the prevention within their territory of
the commercial exploitation of which is necessary to protect ordre
public, safety, morality, and decency, including to protect human, animal or plant life, domestic nutrition, or to avoid serious prejudice to the environment, provided that such exclusion is not applied merely because the exploitation is prohibited by their law.
5. Members may also exclude from patentability:
a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
b) plants and animals other than micro-organisms, and essentially biological processes
for the production of plants or animals other than non-biological and microbiological
processes.
6. However, Members shall provide for the protection of plant varieties either by patents or by an effective
sui generis system.. For the purposes of the previous paragraph, the system of rights of breeders set forth in the International Convention for the Protection of New Varieties of Plants (UPOV) shall be considered an effective sui generis
system.]
[Article XX. Patentable material and exceptions to patentability
1. Parties shall grant patents for inventions, whether goods or processes, in all areas of technology, provided these are new, involve an inventive step, and are industrially applicable.
a) An invention shall be deemed new when not included in the state of the art. The state of the art comprises everything that has been made available to the public by written or oral description, use, marketing, or any other means prior to the patent application filing date or, where appropriate, the validly claimed priority date.
b) An invention shall be regarded as involving an inventive step if, for a person in the trade with average skills in the technical field concerned, the said invention is neither obvious nor obviously derived from the state of the art.
c) An invention shall be regarded as industrially applicable when its subject matter may be produced or used in any type of industry; industry being understood as that involving any productive activity, including services.
2. The following shall not be considered inventions:
a) discoveries, scientific theories, and mathematical methods;
b) any living thing, either complete or partial, as found in nature, natural biological processes, and biological material, as existing in nature, or able to be separated, including the genome or germ plasm of any living thing;
c) literary and artistic works or any other aesthetic creation protected by copyright;
d) plans, rules, and methods for the pursuit of intellectual activities, playing of games, or economic and business activities;
e) computer programs and software, as such; and,
f) methods for presenting information.
3. The following shall not be patentable:
a) inventions, the commercial exploitation of which in the territory of the respective Party has to be prevented in order to protect public order or morality, provided that such exclusion is not merely because the exploitation is prohibited or regulated by a legal or administrative provision;
b) inventions, the commercial exploitation of which in the territory of the respective Party has to be prevented in order to protect human or animal life or health, or to avoid serious injury to plant life and the environment, provided that such exclusion is not made merely because the exploitation is prohibited or regulated by a legal or administrative provision;
c) plants, animals, and essentially biological processes for the production of plants or animals other than non-biological or microbiological processes;
d) diagnostic, therapeutic, and surgical methods for the treatment of humans or animals.
4. Microorganisms shall be paid in double until such time as different measures are adopted as a result of the examination envisaged in subsection (b) article 27, No 3 of the TRIPS Agreement. For this purpose, account shall be taken of the commitments assumed by the Parties under the Convention on Biological Diversity. ]
[Article XX. Patentable Material
1. Without prejudice to what is set out in this article, patents may be granted for all inventions, in all technological fields, for products or procedures, as long as they are novel, bring innovation and may have an industrial application.
a) An invention is considered novel when it is does not exist in current technology. Current technology covers all that has been disclosed or published, anywhere in the world and in whatever form, prior to the submission date for a patent application, or alternatively, when it is claimed before the official priority date. Solely for the purpose of assessing innovation, the application must also include the content of another patent being processed within the current state of technology, as well as its application or priority date, or alternatively, that preceded the patent application in question, but only if its content were part of the priority date application when it was published.
b) An invention is deemed to be innovative, if it is not self-evident or clearly derived from current technology for a person trained in that technical field.
c) An invention may be considered to have industrial applications when its purpose may be re-produced or utilized in any type of industry or productive activity.
2. The Parties may refuse to grant patents for inventions whose commercial exploitation must be banned on its territory to safeguard public order, morality, as well as protect the health and life of people, animals or plants, or to avoid serious harm to the environment, provided that that exclusion is not to ban, limit or restrain it through any legal or administrative provision.
3. The Parties may also refuse to grant patents for other reasons, such as:
a) Diagnostic, therapeutic and surgical methods used for the care of people or animals;
b) Fauna and flora, except for microorganisms, and the biological procedures as they exist in nature and that do not suggest human interference to produce plants and animals, save for microbiological procedures;
4. The Parties shall grant protection to obtaining plants through an efficient sui generis system, which is the legal obtainer system set out in the International Convention on Plant Breeders Rights (UPOV) and in the national legislation of each Party.
]
[Article XX. Rights Conferred
1. A patent shall confer on its owner the following exclusive rights:
a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of: making, using, offering for sale, selling, or importing for these purposes that product;
b) where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.
]
[Article XX. Rights Conferred
A patent shall confer on its holder the following exclusive rights:
a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of: making, using, offering for sale, selling, or importing for these purposes the patented product; or
b) where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
Patent owners shall also have the right to assign, or transfer by any medium, the patent, and to conclude licensing contracts.
]
[ Article XX. Rights conferred
The patent shall confer on its owner the right to prevent third parties from making use of the patented invention. It shall also confer the right to take action against any person who performs any of the following acts without the owner’s consent:
1. If the patent has been granted for a product:
a) Manufacture the product; and
b) Offer for sale, sell or use the product, or import or store it for any of these purposes.
2. If the patent has been granted for a procedure:
a) Make use of the procedure; and
b)
Perform any of the acts indicated in 1b above, with respect to a product that is the direct result of using the procedure.
]
[Article XX. Rights Conferred
1. The patent shall confer the following rights to its holder:
a) When the patent covers a product, it will prevent third parties from carrying out, without the holder’s consent, the following: manufacture, use, offer to sell, the sale or importation of the patented product.
b) When the patent covers a procedure, it will prevent third parties from using the procedure and carrying out, without the holder’s consent, the following: use, offer to sell, sale or importation, at the very least, of the product directly obtained by said procedure;
2. When the patent protects a biological product that claims to have specific characteristics, the protection shall also cover any biological material derived through multiplication or propagation of the patented product and having the same characteristics.
3. When the patent protects a biological product procedure that claims to have specific characteristics, the protection shall also cover all biological material derived through multiplication or propagation of the material directly obtained from the procedure and having the same characteristics.
4. When the patent protects a specific genetic sequence or biological material containing that sequence, the protection shall also cover any product that includes that sequence or material expressing that genetic information.
5. The invention patent protection will have a life of twenty years (20), commencing on the patent application date.
]
[Article XX. Rights Conferred and Limitations to Rights
1. A patent shall confer on its owner the right to prevent third parties not having the owner’s consent from carrying out the following acts:
a) where the subject matter is a product: making, using, offering for sale, selling, or importing for these purposes that product;
b) where the subject matter of the patent is a process: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.
3. The term of protection available shall not end before the expiration of a period of 20 years counted from the filing date.]
[ Article XX. Rights conferred and limitations
1. Patents shall have a term of twenty years counted from the filing date of the corresponding application.
2. The scope of the protection conferred by a patent shall be determined by the wording of the claims. The description and drawings, or the deposit of biological material, where applicable, shall be used in the interpretation of the claims.
3. A patent shall confer on its owner the right to prevent third parties, not having the owner’s consent, from performing the following acts:
a) where the subject matter of a patent is a product:
i) making the product;
ii) offering for sale, selling, or using the product; or importing it for these purposes; and,
b) where the subject matter of a patent is a process:
i) using the process; or,
ii) performing any of the acts that are specified under paragraph (a) above, with respect to a product obtained directly by that process.
4. The patent owner may not exercise the right referred to in the previous article with respect to acts carried out:
a) in a private circle and for non-commercial purposes;
b) exclusively to experiment with the subject matter of the patented invention;
c) exclusively for the purposes of teaching or scientific or academic research;
d) the acts referred to in Article 5bis of the Paris Convention on the Protection of Industrial Property;
e) where the patent protects biological material that is capable of being reproduced, except for plants, using that material as a basis for obtaining a viable new material, except where the patented material must be used repeatedly to obtain the new material.
]
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“Copyright holder”, in this section, has the same meaning as “Holder” in the IPIC Treaty. |
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countries
