Copyright © 2018 KENFOX
All other rights are reserved. This document and its contents are made available on an “as is” basis, and all implied warranties are disclaimed. The contents of this document do not constitute, and should not be relied on as, legal advice. You should approach a legal professional if you require legal advice.
I. LEGAL BASIS
- The Law on Patents, Utility Models and Industrial Designs enacted in 2003.
- The Procedure for the Grant of Patents and Utility Model Certificates, dated 29 June 2006.
- The Memorandum of Understanding on the Co-Operation in Industrial Property signed between Ministry of Industry and Handicraft of Cambodia (MIH) and the Intellectual Property of Singapore Office (IPOS) in 2015.
- A Joint Statement of Intent on Cooperation for Facilitating Patent Grant of Cambodia-related Patent Application signed between the MIH with the Japan Patent Office (JPO) on 04 May 2016
- Two new Prakas (Declarations) on 27 July 2016 on the procedures for accelerating, registering and granting the patent in Cambodia.
- Agreement on the Validation of European Patents (“Validation Agreement”) with the European Patent Office (EPO) signed between the MIH and European Patent Office on 23 January 2017.
- A Memorandum of Understanding (MOU) on Intellectual Property Cooperation between the MIH of and the State Intellectual Property Office (SIPO) of China on 21 September 2017.
II. PATENT RELATED MATTERS IN CAMBODIA
What are patentable inventions in Cambodia?
Per Article 3 of the Cambodian Law on Patents, Utility Models and Industrial Designs, “Patent” means the title to be granted to protect an invention.
“Invention” means an idea of an inventor that permits in practice the solution to a specific problem in the field of technology ( Article 3 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
An invention may be, or may relate to, a product or a process ( Article 4 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
An invention is patentable if it is new, involves an inventive step and is industrially applicable ( Article 5 of the Cambodian Law on Patents, Utility Models and Industrial Designs )
What are non-patentable subjects in Cambodia ?
Any invention can be the subject of a patent, except for:
- Discoveries, scientific theories and mathematical models;
- Schemes, rules or methods for doing business, performing purely mental acts or playing games;
- 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 does not apply to products for use in any of these methods;
- Pharmaceutical products;
- Plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals;
- Plant varieties.
Whether computer software is patentable in Cambodia?
Yes, computer software is patentable in Cambodia if it is
- Process invention, which in whole or in part, consists of steps that are performed by computer and are directed by a computer; or
- Product invention consisting of elements of a computer-implemented invention, including in particular: (a) Machine-readable computer program codes stored on a tangible medium such as a floppy disk, computer hard drive or computer memory; and (b) A general-purpose computer whose novelty over the prior art arises primarily due to its combination with a specific computer program.
What are requirements for a patentable invention in Cambodia ?
Novelty : Under Article 6 of the Cambodian Law on Patents, Utility Models and Industrial Designs, the first requirement for an invention to be patent able in Cambodia is that it is a new invention, meaning it is not anticipated by prior art.
Prior art consists 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. Disclosure to the public of the invention shall not be taken into consideration: (i) If it occurred within twelve 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 .
Inventive Step : Under Article 7 of the Cambodian Law on Patents, Utility Models and Industrial Designs, an invention must involve an “inventive step.” An invention involves an inventive step if, having considered the prior art, it would not have been obvious to a person having ordinary skill in the art.
Industrial Applicability : Under Article 8 of the Cambodian Law on Patents, Utility Models and Industrial Designs, an invention must be industrially applicable, meaning it can be made or used in any kind of industry. KENFOX notes, however, that under Article 9, if the commercial exploitation of the invention would be contrary to public order or morality, or would be harmful to human, animal, or plant life or health, or would seriously prejudice the environment, or is prohibited by law, then it cannot be patented.
Who has right to Patent, naming of Inventor in Cambodia?
The right to a patent shall belong to the inventor (Article 10). If two or more persons have jointly made an invention, the right to the patent shall belong to them jointly (Article 11). Unless agreed otherwise, the right to patents of inventions made pursuant to an employment contract belong to the employer.
What is first-to-file principle in patent protection in Cambodia?
Under Article 12 of the Cambodian Law on Patents, Utility Models and Industrial Designs, “ 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 ”.
What are required for an application for a Patent in Cambodia?
Under Article 16 of the Cambodian Law on Patents, Utility Models and Industrial Designs, 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),
- An abstract
- The payment of the prescribed application fee
Per Article 17 of the Cambodian Law on Patents, Utility Models and Industrial Designs, 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.
Per Article 18 of the Cambodian Law on Patents, Utility Models and Industrial Designs, 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 ”.
Per Article 19 of the Cambodian Law on Patents, Utility Models and Industrial Designs, 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.
Per Article 20 of the Cambodian Law on Patents, Utility Models and Industrial Designs, drawings shall be required when they are necessary for the understanding of the invention.
Per Article 21, 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
What is requirement on unity of invention to be eligible for protection in Cambodia?
The application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept ( Article 23 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
Could you advise us on amendment and division of patent application in Cambodia?
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 (Article 24 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
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 (Article 25 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
Could you advise us priority rights for patent request in Cambodia?
KENFOX advises that under Article 4 A (1) of the Paris Convention: [ Any person who has duly filed an application for a patent, or for the registration of a utility model, or of an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed ]. As defined in Article 4 A of the Paris Convention, the right of priority may be enjoyed “during the periods hereinafter fixed” – which periods according to Article 4 C (1) are 12 months for Patents and 6 months for Utility Models, Industrial Designs and Trademarks. According to Article 4 C (2) these 12/6–month “ periods shall start from the date of filing of the first application; the day of filing shall not be included in the period ”. In effect, it means that if one applies for a specific trademark for the first time in Paris Convention signatories, and then, within the next six months, files an application for the same trademark in Cambodia and claims priority, then the second application filed with the DIP in Cambodia will be considered as having been filed on the same date as the first application.
To claim priority for patent applications in Cambodia, the applicant is required to provide us with a copy of the earlier application certified as correct by the Office with which it was filed (Article 28 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
How information on corresponding foreign applications and patents can be provided to the Cambodian Registrar?
The patent applicant shall, at the request of the Registrar furnish it with the date and number of any patent application filed abroad (“foreign application”) relating to the same or essentially the same invention as that claimed in the application filed in Cambodia.
The following documents relating to one or more of the foreign applications may be, at the request of the Cambodian Registrar, provided thereto:
- 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;
- A copy of the patent granted on the basis of the foreign application;
- 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.
Article 26.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.
How are filing dates of patent applications in Cambodia are provided to the applicant?
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:
- an express or implicit indication that the granting of a patent is sought;
- indications allowing the identity of the applicant to be established;
- a part which, on the face of it, appears to be a description of an invention
In case of insufficient required documents, an Office Action will be issued. If no correction/amendment is made, the patent application will be treated as if it had not been filed
If the patent application in Cambodia refers to drawings which in fact are not included in the application, an Office Action will be issued by the Registrar so that the patent applicant furnishes the missing missing drawings. If drawings are submitted, 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 (Article 33 & 34 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
What is the process of examination of patent application in Cambodia?
After according a filing date, the Cambodian Registrar shall examine whether the application complies with the requirements of Articles 16 ( whether it contains a request, a description, one or more claims, one or more drawings (where required), and an abstract ) and Article 17 ( whether it contains 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 foreign applications and patents filed in abroad, the Cambodian Registrar shall further examine whether information requested under Article 30 ( the date and number of any foreign patent application relating to the same or essentially the same invention as that claimed in the application filed in Cambodia ), Article 31 (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; a copy of the patent granted on the basis of the foreign application; a copy of any final decision rejecting the foreign application or refusing the grant requested in the foreign application ).
(Article 35 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
Where the Registrar is of the opinion that the application complies with the statutory requirements, the Cambodian Registrar shall issue appropriate Decisions on the patent applications.
Whether International search report and any international preliminary examination report be useful in patent registration in Cambodia?
The Cambodian Registrar shall take into account, for the purpose of issuing appropriate Decisions on the patent applications , the followings:
- The results of any international search report and any international preliminary examination report established under the PCT in relation to the application; and/or
- A search and examination report submitted 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
- a search and examination report which was carried out upon his request by an external search and examination authority.
(Article 37 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
What steps concerning Grant of Patent in Cambodia?
Where all requirements are met, the Cambodian Registrar shall proceed to grant the patent. Otherwise, a refusal Decision on the patent application will be issued and notified to the applicant.
When granting a patent, the Cambodian Registrar shall:
- publish a reference to the grant of the patent;
- issue to the applicant a certificate of the grant of the patent and a copy of the patent;
- record the patent;
- make available copies of the patent to the public, on payment of the prescribed fee.
(Article 38 & 39 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
Could you advise us on Patent terms/during in Cambodia?
A patent shall expire twenty (20) years after the filing date of the application for the patent (Article 45 of the Cambodian Law on Patents, Utility Models and Industrial Designs )
How to maintain a patented invention in Cambodia?
Annual Fees
To maintain the patent or patent application, an annual fee shall be paid in advance to the Cambodian 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. If an annual fee is not paid, the patent application shall be deemed to have been withdrawn or the patent shall lapse (Article 46 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
AUTHORIZED TO EXPLOIT PATENTED INVENTIONS IN CAMBODIA
What are required documents for being authorized to exploit the patented inventions in Cambodia?
KENFOX advises that required documents for being authorized to exploit the patented inventions in Cambodia are as follows:
- A request to be submitted to the Minister
- Accompanying documents (namely, 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 ).
In the following case, the accompanying documents may not be required:
- 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;
- public non-commercial use; and
- anti-competitive practices determined as such by a judicial body.
(Article 52 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
Who is competent to authorize others to exploit the patented inventions in Cambodia?
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 in the following cases:
- the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy so requires; or
- 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.
(Article 47 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
Whether it is possible to change the terms of the decision authorizing the exploitation of the patented invention in Cambodia?
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 ( Article 48 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
In what conditions the authorization of exploiting patented inventions in Cambodia will be terminated?
Upon request of the patent owner, 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 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 ( Article 49 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
Could you advises us scope of exploitation of patented invention in semi-conductor technology after being authorized for exploitation in 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 (Article 54 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
Appealing the Minister’s Decision on authorizing others to exploit patented inventions in Cambodia?
The Minister’s Decision on authorizing others to exploit patented inventions in Cambodia may be the subject of an appeal before the competent Court in Cambodia (Article 55 of the Cambodian Law on Patents, Utility Models and Industrial Designs ).
NON-VOLUNTARY LICENSES OF PATENTED INVENTIONS IN CAMBODIA
When to issue Non-Voluntary Licenses in Cambodia?
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.
What to be included in the Decision on Non-Voluntary Licenses in Cambodia?
Under Article 57 of the Cambodian Law on Patents, Utility Models and Industrial Designs, 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 .
What other conditions for Non-Voluntary Licenses in Cambodia?
Under Article 59 of the Cambodian Law on Patents, Utility Models and Industrial Designs, if 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.
Per Article 60, where a non-voluntary license is issued, 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, 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
INVALIDATIN OF PATENTED INVENTIONS IN CAMBODIA
Where can we file a request for invalidation of patented invention in Cambodia?
Per Article 65, a request for invalidation of patented invention in Cambodia must be filed with a Cambodian competent court.
In case a finding of illegible for patentable is established, the Court will invalidate the patent (Article 66).
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 (Article 67 ). 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 (Article 68).
UTILITY MODEL CERTIFICATES IN CAMBODIA
A utility model certificate in Cambodia is a special form of patent, with a lower standard of registerability and shorter duration term. While a patent must meet 03 requires (i) to be new, (ii) to involve an inventive step, and (iii) to be industrially applicable, a utility model needs only be new and industrially applicable. Whereas a patent expires twenty years after filing, a utility model certificate expires after seven years, with no possibility of renewal (Article 73: 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 ). Applicants may, prior to grant or refusal, apply for their patent application to be converted into a utility model application, and vice versa. The conversion may only be done once.
Can the patent applicant convert patent application into an application for a utility model certificate or vice versa in Cambodia?
Yes, he can. Per Article 75 of the Cambodian Law on Patents, Utility Models and Industrial Designs, at any time before the grant or refusal of a patent, an applicant for a patent may 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 convert his application into a patent application, which shall be accorded the filing date of the initial application.
A patent/utility model application may not be converted more than once in Cambodia.
FILING DATE AND EFFECTS OF INTERNATIONAL APPLICATION DESIGNATING CAMBODIA
An international application designating the Kingdom of Cambodia shall 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.
ACCELERATING GRANT OF JAPANESE PATENTS AND DESIGNS
On May 4, 2016, the Japan Patent Office (JPO) and the Ministry of Industry and Handicrafts (MIH), Cambodia, held a meeting and signed a Joint Statement of Intent aiming to launch cooperation for facilitating patent granting in Cambodia (Cooperation for facilitating Patent Grant (CPG)). The CPG which came into effect on 01 July 2016, aims at accelerating patent granting for applications filed in Cambodia without conducting an examination in effect when the applications correspond to those that have already been examined and granted in Japan.
Of note, the CPG request and the MIH’s patent application are separated. To benefit from the accelerated granting procedure, the applicant who has duly filed Cambodian patent application with the MIH shall submit a Request form for CPG procedure. The acceptance of the request is subject to the following requirements:
- the Japanese and the Cambodian patent applications shall have the same earliest filing date
- the corresponding Japanese patent application has been granted by the JPO
- one or more claims in the patent application filed with the MIH shall be the same as the claim(s) in the corresponding JPO patent application.
Up to now, no limitation is set on the number of patent applications to be filed in each year under the CPG. Any person of any nationality who possesses a Japanese patent granted by the JPO and who has duly filed the corresponding patent application with the MIH can make a request for accelerated granting procedure provided under CPG.
In practice, where all requirements have been met, it takes roughly 2-3 months for an MIH patent application to be granted.
What are required documents for GPG patent application in Cambodia?
KENFOX advises that to file a GPG patent application in Cambodia, the applicant is required to furnish the following documents:
- A request for acceleration of patent decision based on the CPG submitted to the Department of Industrial Property of the Ministry of Industry and Handicraft
- A certified copy of the patent gazette in the corresponding JPO patent application and its English translation,
- A translation of claims and specifications in English and Khmer,
- A claims correspondence table.
Of note, the applicant must submit a translation in Khmer to the Department of Industrial Property within six months of the date on which the request was filed for the CPG.
REGISTRATION AND RE-REGISTRATION OF SINGAPOREAN PATENTS & DESIGNS
The Memorandum of Understanding (MoU) on the Cooperation in Industrial Property was signed on 20 January 2015 between the Cambodian Ministry of Industry and Handicraft (MIH). With this instrument, the Registration and Re-registration of Singapore patent are now possible in Cambodia. The Memorandum of Understanding is valid for five years from January 20, 2015 and can be renewed upon the mutual consent of both parties. Accordingly, the right holder of patent duly registered with the IPOS is able to obtain his patent registration as such and its protection in Cambodia within a much shorter timeframe.
For Singapore patents to be eligible for re-registration in Cambodia, the following requirements are met:
- Having a filing date after 11 February 2003;
- Duly registered with the IPOS and are in force at the time of filing request for re-registration at the MIH; and
- Be patentable in Cambodia, as provided under Articles 4 and 9 of he Cambodian Law on Patents, Utility Models and Industrial Designs.
What are required documents for patent applications to be registered under IPOS/MIH MoU?
- The request for registration of a Singaporean patent submitted to the Department of Industrial Property of the Ministry of Industry and Handicraft
- A payment of the filing fee (Note: The registration fee and annual fee must be paid within three months from date of Registrar’s notification).
- A certified copy certificate of grant of the Singaporean patent,
- A certified copy of final specifications,
- A copy of abstract and a copy of original notarized POA if a local patent agent is appointed.
Protecting patent in Cambodia under the PCT
On 8 September 2016, Cambodia became the 151st member of the Patent Cooperation Treaty (PCT). As such, from 8 December 2016, Cambodia became bound by the PCT system. Any international application filed on or after 8 December 2016 will automatically include the designation of Cambodia and International applicants will be able to enter the national phase in Cambodia within 30 months from the priority date on international applications filed on or after 8 December 2016.
PATENT INFRINGEMENT IN CAMBODIA
Rights Conferred by Patent in Cambodia
- Right to exploit inventions after being patented in Cambodia
- Right to permit others to use the invention
- Right to institute court proceedings against any infringer
What is right to exploit inventions after being patented in Cambodia?
Under Article 42, the terms “exploitation” of a patented invention means any of the following acts:
- when the patent has been granted in respect of a product: “exploitation” of a patented invention means (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;
- when the patent has been granted in respect of a process: “exploitation” of a patented invention means (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.
Limitation of exercise/enforcement of patent rights in Cambodia
The rights under the patent of the patent holder shall not extend:
- 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
- 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
- to acts done only for experimental purposes relating to a patented invention; or
- 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.
Who is under burden proof in a patent infringement case in Cambodia?
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. For an infringement concerning a patented product, the burden of proof must be taken by the plaintiff.
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