Wednesday, 15 October 2014

Seychelles Industrial Property Act inching closer to mattering

Seychelles enacted a new Industrial Property Act about 6 months ago and it is now available for your perusal.  It is not yet in effect, though, so don’t start relying on it yet.  The new Act is available here in a delightfully nostalgic looking pdf. Not great for searching, but excellent for reminiscing about long hours in the library.  For those more interested in usability than nostalgia, the version submitted to WIPO is searchable.

The Act covers Patents, Utility Models, Industrial Designs, Integrated Circuits, Trademarks and Geographical Indications (combined in the same part), and Unfair Competition.  The Act includes enforcement provisions for both civil and criminal enforcement.  According to Inventa International, the new legislation is in preparation for Seychelles to join the WTO.  The purpose of the act certainly seems in line with the purpose of IP purported by TRIPS:

AN ACT to provide for the adequate protection and enforcement of industrial property rights in order to encourage local inventive and innovative activities, stimulate transfer of technology, promote foreign direct investment, create competitive business environment, discourage unfair practices, enhance free and fair practice and thereby foster socio economic development and for matters connected therewith or incidental thereto.

Here’s a great opportunity.  Many of the goals listed above are measureable.  Since the Act is not yet in effect, we could get some baseline numbers for current foreign direct investment amounts and number of existing technology transfer projects and compare those down the road at the 5, 10, 20, etc. -year points after the 2014 Act goes into effect.  Then we can analyze whether TRIPS-level IP laws really do increase all these things.

In the meantime, we’ll settle for covering some aspects of the new Act worth mentioning. 

Patents

Plants, micro-organisms and natural substances are not patentable; neither are business methods. The Act follows the first to file rule, however applicants who have already applied for a patent in a WTO member country can receive right of priority (See Sect. 13).  Patent terms are 20 years from date of filing and annual fees are due (yes, every year) to keep the patent valid.

The Act provides for compulsory patent licenses in the cases of public interest, non-practice (“insufficiently exploited in Seychelles…after a period of 4 years”), anti-competitive practices, abusive licensing, and needs of a subsequent patent. (Chapter 5.)

Industrial Designs

Industrial Design registrations are valid for 5 years with the possibility of 2 additional 5-year renewal terms.  The same compulsory licensing provisions for patents apply to Industrial Designs.  Changes in ownership must be registered in ordered to be enforced against third parties.

Trademarks

The Act provides for right of priority for trademark registrations, as with patents.  Three-dimensional marks can be registered, and there’s provisions for what to do when the mark cannot be visually perceived, which suggests that sound and scent marks may be registerable.  Trademark registrations are valid for an initial term of 10 years with renewals available at 7 year intervals.

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