1. Subject to paragraphs 2 and 5, each Party shall make patents available for any inventions, whether products or processes, in all fields of technology, provided that such inventions are new, result from an inventive step and are capable of industrial application.

2. A Party may exclude from patentability inventions if preventing in its territory the commercial exploitation of the inventions is necessary to protect public order or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to nature or the environment, provided that the exclusion is not based solely on the ground that the Party prohibits commercial exploitation in its territory of the subject matter of the patent.

3. Subject to paragraphs 2 and 5, there shall be no discrimination in the granting of patents, nor in the enjoyment of the respective rights, with respect to the field of technology, in the territory of the country in which the invention was made or whether the products are imported or manufactured locally. 

4. Each Party shall provide for the protection of plant varieties through patents, an effective scheme of sui generis protection, or both.Each Party shall undertake, insofar as their systems are compatible, to respect the substantive provisions presently in force in the UPOV Convention. 

5. A Party may also exclude from patentability:

a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;

b) plants and animals other than microorganisms; and

c) essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes for such production.

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.

a) grounds exist that would have justified a refusal to grant the patent; or

b) the grant of a compulsory license has not remedied the lack of exploitation of the patent.

a) authorization of such use shall be considered on its individual merits;

b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and such efforts have not been successful within a reasonable period of time. The requirement to make such efforts may be waived by a Party in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;

c) the scope and duration of such use shall be limited to the purpose for which it was authorized;

d) such use shall be non-exclusive;

e) such use shall be non-assignable, except with that part of the enterprise or goodwill that enjoys such use;

f) any such use shall be authorized predominantly for the supply of the Party's domestic market;

g) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances that led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances;

h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;

i) the legal validity of any decision relating to the authorization shall be subject to judicial or other independent review by a distinct higher authority;

j) any decision relating to the remuneration provided in respect of such use shall be subject to judicial or other independent review by a distinct higher authority;

k) the Party shall not be obliged to apply the conditions set out in subparagraphs (b) and (f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anticompetitive. The need to correct anticompetitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions that led to such authorization are likely to recur; and 

l) the Party shall not authorize the use of the subject matter of a patent to permit the exploitation of another patent except as a remedy for an adjudicated violation of domestic laws regarding anticompetitive practices.

a) the product obtained by the patented process is new; or

b) a substantial likelihood exists that the allegedly infringing product was made by the process and the patent owner has been unable through reasonable efforts to determine the process actually used.

In the gathering and evaluation of evidence, the legitimate interests of the defendant in protecting its trade secrets shall be taken into account.

12. Each Party shall provide a term of protection for patents of at least 20 years from the date of filing. ]

2. Each Party shall confer on a patent 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.

4. A Party may revoke a patent only when grounds exist that would have justified a refusal to grant the patent. Administrative proceedings provided by a Party that permit a third party to challenge a finding that a patent complies with requirements of the patent law of the Party shall be limited to grounds that would have justified a refusal of the grant of the patent. Where such proceedings include opposition proceedings, opposition proceedings shall not be made available prior to the grant of the patent.

5. Where a Party permits the use of a patented invention to generate information required by a regulatory authority to obtain approval to market a product, such Party shall limit such use to acts reasonably performed to generate information to demonstrate that a product is scientifically equivalent to a previously approved product, provided, however, that:

i) where the grant of the patent precedes the approval for marketing of the product subject to the patent, the Party shall extend the term of the patent by a period sufficient to confer a reasonable term of exclusivity;

ii) any product produced under this authority shall not be commercially used, sold or offered for sale in the Party or exported outside the territory of the Party except as reasonably performed for obtaining marketing approval; and

iii) the patent owner shall be provided notice of the identity of any entity that includes data generated under this authority in an application for marketing approval based on the previously approved product that seeks the authority to market the product prior to expiration of the patent.

a) The authorization shall be granted only for public non-commercial purposes or in situations of a declared national emergency or other situations of extreme urgency. 

b) The authorization shall be limited to the making, using or importing of the patented invention solely to satisfy the requirements of the Government use, and shall not entitle a private party acting on behalf of the Government to sell products produced pursuant to such authorization to a party other than the Government, or to export the product outside the territory of the Party.

c) The patent owner shall be provided with reasonable and entire compensation for such use and manufacture.

d) Parties shall not require the patent owner to transfer undisclosed information or technical "know how" related to a patented invention that has been subjected to involuntary use authorization.

8. Each Party, at the request of the patent owner, shall extend the term of a patent to compensate for unreasonable delays that occur in granting the patent. For the purposes of this paragraph, an unreasonable delay shall at least include a delay in the issuance of the patent of more than four years from the date of filing of the application in the Party, or two years after a request for examination of the application has been made, whichever is later, provided that periods of time attributable to actions of the patent applicant need not be included in the determination of such delays. 

9. Where a Party provides for the grant of a patent on the basis of an examination of the invention conducted in another country, that Party, at the request of the patent owner, shall extend the term of a patent granted under such procedure by a period equal to the period of the extension, if any, provided in respect of the patent granted by such other country. 

10. Each Party shall exclude information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure was made or authorized by, or derived from, the patent applicant and occurs within 12 months prior of the date of filing of the application in the Party. 

Article XX. Measures Related to Certain Regulated Products

1. If a Party requires the submission of information concerning the safety and efficacy of a pharmaceutical or agricultural chemical product prior to permitting the marketing of such product, such Party shall not permit third parties not having the consent of the party providing the information to market the same or a similar product on the basis of the approval granted to the party submitting such information for a period of at least five years from the date of approval. 

Proposed footnote to Article XX.1

Where a Party, on the date of its implementation of the TRIPS Agreement, had in place a system for protecting pharmaceutical or agricultural products not involving new chemical entities from unfair commercial use which conferred a period of protection shorter than that specified in paragraph 12.1, that Party may retain such system notwithstanding the obligations of said paragraph. 

2. If a Party provides a means of granting approval to market products specified in paragraph (1) on the basis of the grant of an approval for marketing of the same or similar product in another Party, the Party shall defer the date of any such approval to third parties not having the consent of the party providing the information in the other Party for a period of at least five years from the date of approval in the Party or the date of approval in the other Party, whichever is later. 

3. Where a product is subject to a system of marketing approval pursuant to paragraphs (1) or (2) and is also subject to a patent in the Party:

a) the Party shall not approve an application to market a product on the basis of information in an earlier marketing approval for the same product where that application has been filed by a party other than the recipient of the original marketing approval or with his consent, and shall not otherwise authorize a third party to market the same product, prior to the expiration of the patent; and

b) the Party shall not alter the term of protection specified in paragraphs (1) and (2) in the event that the patent expires on a date earlier than the end of the term of such protection.

c) In addition, if the product is subject to a patent in the Party and the other Party, the Party shall extend the term of the patent in the Party to expire no earlier than the date of expiration of the patent in the other Party.]

[Article XX. Relationship Between the Protection of Traditional Knowledge and Intellectual Property

Each Party shall protect the collective intellectual property and traditional knowledge rights of indigenous peoples to their creations, when these can be used for commercial purposes, through a special system for registration, promotion and marketing of their rights, in order to highlight the social and cultural values of indigenous peoples and local communities and treat them equitably. 

Article XX.

Each Party shall recognize that the customs, traditions, beliefs, spirituality, religiosity, worldview, expressions of folklore, artistic expressions, traditional knowledge and any other form of traditional expression of indigenous peoples and local communities are part of their cultural patrimony. 

Article XX.

Cultural patrimony may not be subject to any form of exclusivity on the part of third parties not authorized through the intellectual property rights system, unless application is made by the indigenous peoples and local communities or by third parties authorized by them. 

Article XX.

Each Party shall provide that any fixation, representation, publication, communication or use in any form of expressions of folklore or traditional knowledge will mention the community and indigenous people associated therewith. 

Relationship Between Access to Genetic Resources and Intellectual Property

Article XX.

Each Party shall protect access to its genetic resources, and traditional knowledge developed by indigenous peoples and local communities on the use of biological resources contained in such genetic resources, against the indiscriminate use of biological diversity, as well as ensuring that the country will participate in benefits derived from the use of its genetic resources. 


Article XX

Each Party shall provide for just and equitable participation in the benefits deriving from access to its genetic resources and from use of traditional knowledge and expressions of folklore. 

Article XX.

Each Party shall ensure that the protection given to industrial property is granted to safeguard its biological and genetic patrimony. For such purpose, the granting of patents on inventions developed based on material obtained from such traditional knowledge or patrimony shall be subject to such material having been acquired pursuant to national and international law. ]

[ Relation between the protection of traditional knowledge and intellectual property, and between access to genetic resources and intellectual property

Article XX

Parties shall ensure that the protection granted to intellectual property elements shall be accorded while safeguarding and respecting their biological and genetic heritage, together with the traditional knowledge of their indigenous, African American, or local communities.

Article XX

The granting of patents on inventions that have been developed on the basis of material obtained from the biological and genetic heritage, or from the traditional knowledge of indigenous, African American, or local communities of the Parties, shall be subordinated to the acquisition of that material in accordance with international, regional, subregional and national law.

Article XX

Parties recognize the right and the authority of indigenous, African American, and local communities in respect of their collective knowledge.

Article XX
Parties shall provide protection to genetic resources and traditional knowledge, either jointly or separately, through a sui generis system, guaranteeing fair and equitable payment from the benefits derived from access to resources or the use of such knowledge. ]


8) UTILITY MODELS

[Article XX. Protection of Utility Models

Each Party shall protect utility models in accordance with their legislation, for a period of at least 10 years, counted from the filing date. ]

[Article XX. Utility Models

Each Party shall protect utility models of any form, configuration or arrangement of elements of any artifact, tool, instrument, mechanism or other object, or any part thereof, that allows improved or different functioning, use or manufacture of the object that embodies it, or endows it with some utility, advantage or technical effect which it did not previously have.

Utility models shall be protected by granting patents

Article XX. Term of protection

The protection conferred by a patent on a utility model shall begin from the date when the application was filed, and, when granted, shall cease fifteen (15) years after that date.

Article XX. Exceptions

The following shall not be eligible for a utility model patent:

a) Procedures;

b) Chemical, metallurgical or any other type of substance or composition; and, material excluded from protection by the patent on the invention. ]

[Article XX. Utility Models]

[Article XX. Utility Models

1. Each Party shall protect utility models, these being understood as objects, utensils, machines and tools which, as a result of a change in their assembly, configuration, structure or form, perform a different function with respect to the parts which compose them or the advantages of their utility. 

2. The registration of utility models shall be in force for a period of 10 years, which cannot be extended. ]

[ Utility models

Article XX

Any new shape, configuration, or arrangement of components of any device, tool, implement, mechanism or other object, or any part thereof, that permits improved or different operation, use, or manufacture of the object incorporating it, or that endows it with any utility, advantage, or technical effect that it did not have previously shall be considered a utility model.
Utility models shall be protected by patents.

Article XX

The following shall not be considered utility models: sculptures, architectural works, or objects that are purely aesthetic in nature.
Processes and materials excluded from patent protection may not be the subject matter of utility model patents.

Article XX

The duration of the utility model shall be ten years, counted from the filing date of the respective application in the Party concerned

Article XX

The provisions on invention patents contained in this Agreement shall be applicable to utility model patents, as pertinent. ]



9) INDUSTRIAL DESIGNS

[Article XX. Industrial Designs

1. Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not differ significantly from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.

2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law. ]

[Article XX. Conditions and duration of protection

Parties shall provide for the protection of independently created industrial designs that are new or original. Parties may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Parties may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.

Parties shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Parties shall be free to meet this obligation through industrial design law or through copyright law.

Each Party shall provide a period of protection for industrial designs of, at least, 10 years counted from the filing date.]

[Article XX. Rights conferred

The owner of a protected industrial design shall have the right to prevent third parties not having the owner's consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.

Parties may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties. ]

[Article XX. Industrial designs

Each Party shall provide for the protection of independently created industrial designs that are new or original. Registrable designs shall be those that are original and susceptible to industrial application; “original design” means one that is not the same as another design already in the public domain, or so similar as to be confused with it.

Article XX. Duration of protection

The patent on an industrial design shall cease ten (10) years from the date on which the corresponding application was filed.

[Article XX. Industrial designs shall include

a) Industrial drawings, including any combination of figures, lines or colors incorporated into an industrial product for ornamentation purposes, which give it a special and distinctive appearance; and,

b) Industrial models consisting of any two- or three-dimensional shape that serves as a model or pattern for the manufacture of an industrial product, that gives it a special appearance not involving technical effects, and which have not been dictated solely by technical criteria or requirements.]

1. Such acts shall not be rendered lawful by the mere fact that the design reproduced or embodied is applied to a type or category of products other than those indicated in the registration of the protected design.

2. Parties may not extend the protection conferred on an industrial design to elements or characteristics of the design dictated wholly by technical criteria or for the purpose of carrying out a technical function, without any arbitrary contribution by the designer.

3. The protection conferred on an industrial design shall not include elements or characteristics of the design, whose exact reproduction was necessary to enable the product embodying the design to be assembled mechanically or connected to another product of which it forms part. This provision shall not be applicable to products in which the design involves a particular shape intended to allow assembly or multiple connection of products, or their connection within a modular system.

4. An industrial design shall not be registered whose appearance was dictated entirely by technical criteria or in order to carry out a technical function without incorporating any arbitrary contribution by the designer.

5. An industrial design shall not be registered that consists of a shape whose exact reproduction was necessary to enable the product embodying the design to be assembled mechanically or connected to another product of which it forms part. This provision shall not be applicable to products in which the design involves a particular shape intended to allow assembly or multiple connection of products or their connection within a modular system. ]

[ Article XX. Requirements for Protection

Parties shall provide for the protection of independently created industrial designs that are new or original. Parties may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Parties may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.

[ Article XX. Protection

1. The owner of a protected industrial design shall have the right to prevent third parties not having the owner's consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.