PLEEEZ GAWD can i be the last guy that posts in this ridiculous thread???
the next guy better be posting hard cold facts right outta the law books cuz if anyone else starts talking about thier personal "feeeeeellllingzzzz" on this topic again..... I think I'm gonna puke
I guess... looking at it another way... the problem is mine .... I keep clicking on this thead LOL
Here is something from the NAFTA Aggreement
Section 5 of the Patent Section provides a clear answer on this
PART SIX
INTELLECTUAL PROPERTY
Chapter Seventeen
Intellectual Property
Article 1701: Nature and Scope of Obligations
1. Each Party shall provide in its territory to the nationals
of another Party adequate and effective protection and
enforcement of intellectual property rights, while ensuring that
measures to enforce intellectual property rights do not
themselves become barriers to legitimate trade.
2. To provide adequate and effective protection and enforcement
of intellectual property rights, each Party shall, at a minimum,
give effect to this Chapter and to the substantive provisions of:
(a) the Geneva Convention for the Protection of Producers
of Phonograms Against Unauthorized Duplication of their
Phonograms, 1971 (Geneva Convention);
(b) the Berne Convention for the Protection of Literary and
Artistic Works, 1971 (Berne Convention);
(c) the Paris Convention for the Protection of Industrial
Property, 1967 (Paris Convention); and
(d) the International Convention for the Protection of New
Varieties of Plants, 1978 (UPOV Convention), or the
International Convention for the Protection of New
Varieties of Plants, 1991 (UPOV Convention).
If a Party has not acceded to the specified text of any such
Conventions on or before the date of entry into force of this
Agreement, it shall make every effort to accede.
3. Paragraph 2 shall apply, except as provided in Annex 1701.3.
Article 1702: More Extensive Protection
A Party may implement in its domestic law more extensive
protection of intellectual property rights than is required under
this Agreement, provided that such protection is not inconsistent
with this Agreement.
Article 1703: National Treatment
1. Each Party shall accord to nationals of another Party
treatment no less favorable than that it accords to its own
nationals with regard to the protection and enforcement of all
intellectual property rights. In respect of sound recordings,
each Party shall provide such treatment to producers and
performers of another Party, except that a Party may limit rights
of performers of another Party in respect of secondary uses of
sound recordings to those rights its nationals are accorded in
the territory of such other Party.
2. No Party may, as a condition of according national treatment
under this Article, require right holders to comply with any
formalities or conditions in order to acquire rights in respect
of copyright and related rights.
3. A Party may derogate from paragraph 1 in relation to its
judicial and administrative procedures for the protection or
enforcement of intellectual property rights, including any
procedure requiring a national of another Party to designate for
service of process an address in the Party's territory or to
appoint an agent in the Party's territory, if the derogation is
consistent with the relevant Convention listed in Article
1701(2), provided that such derogation:
(a) is necessary to secure compliance with measures that
are not inconsistent with this Chapter; and
(b) is not applied in a manner that would constitute a
disguised restriction on trade.
4. No Party shall have any obligation under this Article with
respect to procedures provided in multilateral agreements
concluded under the auspices of the World Intellectual Property
Organization relating to the acquisition or maintenance of
intellectual property rights.
PART SIX
INTELLECTUAL PROPERTY
Chapter Seventeen
Article 1709: Patents
1. Subject to paragraphs 2 and 3, 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. For the purposes of this Article, a Party may deem
the terms "inventive step" and "capable of industrial
application" to be synonymous with the terms "non-obvious" and
"useful", respectively.
2. A Party may exclude from patentability inventions if
preventing in its territory the commercial exploitation of the
inventions is necessary to protect ordre public 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. 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.
Notwithstanding subparagraph (b), each Party shall provide for
the protection of plant varieties through patents, an effective
scheme of sui generis protection, or both.
4. If a Party has not made available product patent protection
for pharmaceutical or agricultural chemicals commensurate with
paragraph 1:
(a) as of January 1, 1992, for subject matter that relates
to naturally occurring substances prepared or produced
by, or significantly derived from, microbiological
processes and intended for food or medicine; and
(b) as of July 1, 1991, for any other subject matter,
that Party shall provide to the inventor of any such product or
its assignee the means to obtain product patent protection for
such product for the unexpired term of the patent for such
product granted in another Party, as long as the product has not
been marketed in the Party providing protection under this
paragraph and the person seeking such protection makes a timely
request.
5. Each Party shall provide that:
(a) where the subject matter of a patent is a product, the
patent shall confer on the patent owner the right to
prevent other persons from making, using or selling the
subject matter of the patent, without the patent
owner's consent; and
(b) where the subject matter of a patent is a process, the
patent shall confer on the patent owner the right to
prevent other persons from using that process and from
using, selling, or importing at least the product
obtained directly by that process, without the patent
owner's consent.
6. A Party may provide limited exceptions to the exclusive
rights conferred by a patent, provided that such exceptions do
not unreasonably conflict with a normal exploitation of the
patent and do not unreasonably prejudice the legitimate interests
of the patent owner, taking into account the legitimate interests
of other persons.
7. Subject to paragraphs 2 and 3, patents shall be available
and patent rights enjoyable without discrimination as to the
field of technology, the territory of the Party where the
invention was made and whether products are imported or locally
produced.
8. A Party may revoke a patent only when:
(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.
9. Each Party shall permit patent owners to assign and transfer
by succession their patents, and to conclude licensing contracts.
10. Where the law of a Party allows for use of the subject
matter of a patent, other than that use allowed under paragraph
6, without the authorization of the right holder, including use
by the government or other persons authorized by the government,
the Party shall respect the following provisions:
(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;
(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.
11. Where the subject matter of a patent is a process for
obtaining a product, each Party shall, in any infringement
proceeding, place on the defendant the burden of establishing
that the allegedly infringing product was made by a process other
than the patented process in one of the following situations:
(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 or 17 years from the
date of grant. A Party may extend the term of patent protection,
in appropriate cases, to compensate for delays caused by
regulatory approval processes.
Honestly I wouldn't mind if a few more mods resigned their commissions here...
