Pursuant
to my authority as Administrator of the Coalition
Provisional Authority (CPA) and under the laws and usages of war, and consistent
with relevant U.N. Security Council resolutions, including Resolution 1483 and
1511 (2003),
Having
worked closely with the Governing Council to ensure
that economic change as necessary to benefit the people of Iraq occurs in a
manner acceptable to the people of Iraq,
Acknowledging
the Governing Council’s desire to bring
about significant change to the Iraqi intellectual property system as necessary
to improve the economic condition of the people of Iraq,
Determined
to improve the conditions of life, technical
skills, and opportunities for all Iraqis and to fight unemployment with its
associated deleterious effect on public security,
Recognizing
that companies, lenders and entrepreneurs
require a fair, efficient, and predictable environment for protection of their
intellectual property,
Noting
that several provisions of the current Iraqi Patent
and Industrial Design Law and related legislation does not meet current
internationally-recognized standards of protection,
Recognizing
the demonstrated interest of the Iraqi Governing
Council for Iraq to become a full member in the international trading system,
known as the World Trade Organization, and the desirability of adopting modern
intellectual property standards,
Acting
in a manner consistent with the Report of the
Secretary General to the Security Council of July 17, 2003, concerning the need
for the development of Iraq and its transition from a non-transparent centrally
planned economy to a free market economy characterized by sustainable economic
growth through the establishment of a dynamic private sector, and the need to
enact institutional and legal reforms to give it effect,
In close consultation with and acting in coordination with the
Governing Council, I hereby promulgate the following:
CPA/ORD/26 April 04/81
Section 1
Amendments to the Patents, Industrial Design, Undisclosed Information,
Integrated
Circuits and Plant Variety Law
The Patent and Industrial Designs Laws and Regulations (No. 65 of 1970) is
hereby renamed the Patents, Industrial Design, Undisclosed Information,
Integrated Circuits and Plant Variety Law (the "Law").
Article 1.1 is amended to read as follows: "Minister—Minister of
Industry."
Article 1.4 is amended to read as follows: "Invention—Any innovative
idea, in any of the fields of technology, which relates to a product or a
manufacturing process, or both, and practically solves a specific problem in
any of those fields."
Article 1.6 is amended to read as follows: "Patentee—The natural or
legal person to whom the patent is granted."
Article 2 is amended to read as follows: "Patents of invention shall be
granted pursuant to the provisions of this Law for each invention that is
industrially applicable, novel and involves an inventive step, either
concerning new industrial products, new industrial methods, or new application
of known industrial methods"
Article 3.2 is suspended.
Article 4 is amended to read as follows: "An invention shall not be
considered as new in the following three cases:
If, the invention has been publicly worked out in or outside Iraq, or if
the description or drawing of the invention has been publicized in
periodicals within Iraq or outside it in such a clear way that enables
experts to exploit;
If, letters patent had been granted to the invention or part thereof to a
person other than the inventor or to whom the rights of the invention have
been assigned, or that others had already applied for the same patent, or
part thereof; or
Notwithstanding subparagraphs (a) and (b), the disclosure of the invention
to the public shall not be taken into account if it occurred twelve months
before the filing date of the application or its priority date, if any, and
it occurred by actions taken by the applicant or applicant’s predecessor
or due to an abuse by third parties against the applicant or predecessor.
CPA/ORD/26 April 2004/81
2
8) Article 5 is amended to read as follows: "Notwithstanding the grant
of the patent, a person who, in good faith, manufactures, uses an industrial
manufacturing process of a product, or makes serious preparations therefore,
before the filing date of an application by another person, or before the
priority date of the application pertaining to the same product or process,
shall have the right to continue such use or to use the invention as
envisioned in such preparations. Assignment or transfer of the said right is
only permitted together with the establishment or with that part of the
establishment in which the use or preparations for use have been made."
9) Article 7.3 is amended to read as follows: "Nationals of States
Party to a relevant international agreement to which Iraq is a member."
10) Article 7.5 is amended to read as follows: "Companies, societies
and establishments formed in Iraq or in countries that are members of a
relevant international agreement to which Iraq is a member, and enjoying
juridical personality, industrialists, manufacturers, merchants or laborers,
provided that the invention shall be primarily registered in the name of the
inventor, unless when the invention had already been patented outside Iraq, in
which case such invention may be registered in the name of the company,
establishment or society that owns it."
11) Article 12 is amended to read as follows: "A patent shall grant
its owner the following rights:
Where the subject of the patent is a product, the right to prevent any
person who has not obtained the owner's authorization from making,
exploiting, using, offering for sale, selling or importing that product.
Where the subject of the patent is an industrial process, the rights to
prevent any person who has not obtained the owner's authorization from using
the process or the product directly made by the process, offering for sale,
selling or importing the product."
12) Article 13.1 is amended to read as follows: "The term of duration
of the patent shall not end before the expiration of a period of twenty years
for registration under the provisions of this Law as from the date of the
filing of the application for registration under the provisions of this
Law."
13) Article 13.2 is suspended.
14) Article 16.2 is amended to read as follows:
CPA/ORD/26 April 2004/81
3
"(2) An applicant for a patent shall disclose the invention in a
manner sufficiently clear and complete for the invention to be carried out by
a person skilled in the art.
(2)bis An applicant for a patent shall provide information concerning
the applicant’s corresponding foreign applications and grants."
15) Article 17 is suspended.
16) Article 18(2) is amended to read as follows: "That the
specification and drawing disclose the invention in a manner sufficiently
clear and complete for the invention to be carried out by a person skilled in
the art."
17) Article 27 is amended to read as follows: "The Registrar may grant
a license to use a patent to third parties without obtaining the patentee's
consent in any of the following cases exclusively:
If the use of the patent by the state authorities or licensed third
parties is a necessity for national defense or emergency or for
noncommercial public good provided that the patentee is notified as soon as
it becomes possible.
1. If the patentee does not exploit it or exploits it insufficiently
before the elapse of four years as of the application date or three years as
of the granting date, the period to be applied is the one that elapses
later. However, the Registrar may grant the patentee an additional grace
period if it is deemed that reasons beyond the control of the patentee have
prevented exploitation.
2. For the purposes of item (1) of this paragraph, and without prejudice to
the provisions of the relevant International Conventions, the importation of
the subject goods of the patent to Iraq shall be deemed utilization of the
patent.
If rights are exercised by the patentee in such a way as to prevent others
from competing fairly."
18) Article 28 is amended to read as follows: "The following shall be
taken into consideration when compulsory licenses are granted:
Each application for a license shall be decided separately for its
specific conditions and circumstances.
The applicant shall have tried to obtain a license from the patentee under
reasonable remuneration and conditions but did not reach an agreement during
a
CPA/ORD/26 April 2004/81
4
reasonable period of time in the case provided for in paragraph (B) of
Article 27 of this Law.
The scope and duration of the license shall be limited to the purpose for
which it is granted. If the license application relates to semiconductor
technology, then it shall only be granted for noncommercial public good or
to rectify practices deemed by the competent judicial or administrative
authority to be anticompetitive.
The license to exploit shall not be exclusive.
The license shall not be assignable to third parties.
The license shall only be granted for meeting the demand in the local
market except in cases where practices have been deemed by the competent
judicial or administrative authority to be anticompetitive.
The patentee shall receive an equitable remuneration which takes into
account the economic value of the patent."
Article 29 is amended to read as follows: "The Registrar may cancel
the compulsory license sua sponte or on the strength of an
application from the patentee if the reasons for its grant lapsed. This
license cancellation shall, however, preserve the rights of those involved
in the compulsory license."
Article 30 is amended to read as follows: "The provisions and
procedures related to licensing of patent utilization shall be prescribed
pursuant to regulations to be issued to this aim."
Article 30bis is added following Article 30 to read as follows:
"The Registrar's compulsory license decision shall be appealable to the
Minister within 60 days of its notification."
Article 34 is amended to read as follows: "Patentee’s rights shall
not be affected by the exploitation of the invention in land, sea or air
means of transport belonging to any of the countries that are members of the
Paris Convention for the Protection of Industrial Property or the World
Trade Organization or that treat Iraq on a reciprocal basis, during their
temporary or accidental existence in Iraq."
Article 36.2bis is added following Article 36.2 to read as follows:
"The application for registration of industrial designs or models shall
be granted where the industrial design or model is new or original."
CPA/ORD/26 April 2004/81
5
2 4) Article 36.2ter is added following Article 36.2bis to
read as follows: "The industrial design or model applied for is not
considered novel if:
It has been displayed, described or its uses were described to the public
prior to the date of deposit of the application for registration.
However, the industrial design or model shall still be considered novel, if
its description or display had been made after the application for the
registration in a country that treats Iraq on reciprocal basis, or if such is
displayed in national or international exhibitions, or the industrial design
or model has been made public in a conference or in scientific journals within
a period not exceeding six months prior to the date of the application for the
registration in Iraq.
It includes non-basic differences in respect of a prior industrial design
or model, or is dedicated to another type of product other than to which the
previously registered industrial design or model was designed for."
Article 36.2quater is added following Article 36.2ter to
read as follows: "Application for registration of industrial designs
that are dictated essentially by technical or functional considerations
shall not be granted."
Article 37bis is added following Article 37 to read as follows:
"1. The owner of a protected industrial design shall have the right to
prevent a third party 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.
2. The Minister may, by regulation, 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 41 is amended to read as follows: "The term of protection of
industrial designs shall be ten years as from the date of issue of the
certificate, provided payment of the prescribed renewal annual fees is
carried out."
Article 44 is amended to read as follows:
"A. The owner of a patent or industrial design registered in Iraq,
upon bringing suit to prevent the infringement of rights in the patent or
design, may file a complaint with the competent court, with a bond, which the
court shall accept for the following provisional measures:
CPA/ORD/26 April 2004/81
6
Cease the infringement;
Seize the products subject of the infringement wherever it occurs; or
Preserve evidence related to the infringement.
B. 1. The patent or design owner, before bringing a claim of infringement,
may, with a bond, request the court to order any of the procedures provided in
paragraph (A) of this Article without notifying the defendant. The court may
grant the owner’s request if the owner proves any of the following:
the patent or design is being infringed;
the infringement is imminent and may cause irreparable harm; or
the risk that the evidence will disappear or be damaged is great.
If the patent or design owner does not file the lawsuit within eight days
from the date of the court’s order for precautionary procedures, the
ordered procedures shall be deemed canceled.
The defendant may appeal the court’s decision of precautionary
procedures to the Court of Appeals within eight days from the date the
defendant was notified of the decision. The decision of the Court of Appeals
is final.
The defendant may file a request, with a bond, to ask the court to
discontinue the precautionary measures including the closure of the
enterprise, factory, or other related businesses. This decision shall be
appeal able within eight days as of the date of its notification. The
decision of the Court of Appeals shall be final.
The defendant may seek equitable compensation for damages suffered if the
court concludes that the plaintiff’s lawsuit is without merit or was not
filed within the prescribed period.
The court may, in all cases, seek the help of experts and specialists.
The court may order the confiscation of the infringing products, as well
as the materials and tools substantially used in the infringement of the
patent. The court may order them destroyed or disposed of for noncommercial
purposes."
29) Chapter Threebis is added following Article 54 for protection of
Undisclosed Information.
CPA/ORD/26 April 2004/81
7
3 0) Article 1 is added as the first article in Chapter Threebis to
read as follows: "Natural and legal persons shall have the possibility of
preventing information lawfully within their control from being disclosed to,
acquired by, or used by others without their consent in a manner contrary to
honest commercial practices so long as such information:
is secret in the sense that it is not, as a body or in the precise
configuration and assembly of its components, generally known among or
readily accessible to persons within the circles that normally deal with the
kind of information in question;
has commercial value because it is secret; and
has been subject to reasonable steps under the circumstances by the person
lawfully in control of the information to keep it secret."
31) Chapter Threebis, Article 2 is added to read as follows:
"If the Minister requires the submission of data pertaining to secret
tests, or any data which has been derived as a result of considerable efforts
in order to approve the marketing of pharmaceuticals or chemical agricultural
products which contain new chemical substances, then the Minister shall comply
with the following:
Protection of such data from unclassified commercial use through
prohibiting any other person who did not obtain the consent of the submitter
to rely on it for marketing that other person’s pharmaceuticals and
products except after the lapse of five years as of the date of obtaining
the submitter of such data the approval to market those products; and
The protection of this data from disclosure with the exception of the
following:
Should disclosure be necessary for the protection of the public; or
Should the Minister realize the necessary precautions to guarantee
unclassified commercial use of such data."
32) Chapter Threeter is added following Chapter Threebis for
protection of Integrated Circuits.
33) Chapter Threeter, Article 1 is added to read as follows:
"The following words and phrases shall have the following meanings
wherever mentioned in this Chapter, unless otherwise indicated:
o The Ministry: The Ministry of Industry.
CPA/ORD/26 April 2004/81
8
The Minister:
The Minister of Industry.
Integrated Circuit/IC:
A product, in its final form or an 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.
Design:
Three-dimensional array of the elements constituting the
circuit forming the integrated circuit or specifically prepared for
manufacturing the integrated circuit.
Protected Design:
A design in respect of which the conditions of
protection referred to in this Chapter are fulfilled.
Registrar:
The Registrar of Integrated Circuit Designs in the Ministry
as appointed by the Minister.
Register:
The register of Integrated Circuit Designs.
Rights holder:
The creator of the protected design or legal
successors."
34) Chapter Threeter, Article 2 is added to read as follows:
"A. A Register shall be established under the supervision of the
Registrar and shall be entitled "Register of Integrated Circuit
Designs." In such Register, all information related to designs, rights
holders, their addresses and certificates issued on their behalf shall be
handwritten and registered together with the measures and legal procedures
taken to include:
Any transfer, acquisition, assignment or licensing from rights holder to
third party/parties; and
1. Any mortgage, lien, seizure, levy or any constraint in utilizing such
design.
The public may access the Register pursuant to regulations issued by the
Minister as published in the Official Gazette.
Computers may be used to register designs and related information.
Information and documents certified by the Registrar are presumed evidence
of registration, unless otherwise proven."
35) Chapter Threeter, Article 3 is added to read as follows:
"The design is registrable, if:
CPA/ORD/26 April 2004/81 9
The design is original in the sense that it is the result of its creator’s
own intellectual effort and is not commonplace among creators of integrated
circuit designs and manufacturers of integrated circuits at the time of its
creation; and
The application for registration is presented within two years of its
first commercial exploitation anywhere worldwide."
36) Chapter Threeter, Article 4 is added to read as follows:
"The beneficiaries for design protection shall be as follows:
The creator or to whomever the design rights are accrued;
All participants in the design if the design is a result of a combined
effort. Registration shall be equally owned unless otherwise agreed;
If the design was designed by more than one independent individual, the
right is to the creator prior in applying for registration; or
The employer, if designed by an employee in fulfillment of an employment
agreement, or commission, unless employment agreement otherwise
stipulates."
37) Chapter Threeter, Article 5 is added to read as follows:
"The design is registered by filing the application for registration to
the Registrar on the designated form, with requested information, samples and
drawings attached. The application for registration is valid for only one
registration."
38) Chapter Threeter, Article 6 is added to read as follows:
"A. The date the Registrar receives the application for registration of
the design is considered the date of filing provided it fulfills all legal
requirements and the information identifying the applicant and the design
diagrams is attached.
A. If the Registrar determines that the application is incomplete as
mandated by paragraph (A) of this Article, applicant may be given a period
determined by regulation to complete the application, or make necessary
amendments provided that such amendments exceed what was previously stated in
the original application. The date of completion or amendment shall be the
date of filing the application. Alternatively, the Registrar may determine
that the applicant abandoned the application. Such decision may be appealed in
the Court of Appeals within sixty days of the date of notification."
39) Chapter Threeter, Article 7 is added to read as follows:
CPA/ORD/26 April 2004/81 10
"A. If the application fulfills all conditions and legal requirements,
the Registrar shall accept the registration and assess the fees.
If the Registrar announces such registration in the Official Gazette, any
third party may file an objection within ninety days from the date of the
published announcement. The appellate procedures shall be based on the
regulations stipulated by this Chapter.
If no objection is filed against the acceptance of the registration of the
design, the Registrar shall approve its registration and issue a certificate
after assessing the determined registration fees."
40) Chapter Threeter, Article 8 is added to read as follows:
"A. The rights holder of the registered design is entitled to
authorize or prohibit the following acts:
Reproduction of the protected design, in whole or in part, whether
incorporated in an integrated circuit or by any other means, except
reproduction of any part that does not comply with the requirement of
originality; or
Importation, sale or other distribution for commercial purposes of the
protected design or an integrated circuit in which a protected design is
incorporated.
It shall be an infringement of the rights of the owner of the protected
design if any of the acts provided for in paragraph (A) of this Article are
committed by third parties without consent of the rights holder and shall be
liable to punishment.
A design comprising a combination of elements and interconnections that
are commonplace shall be protected only if the combination, taken as a whole
fulfills the conditions of originality as stipulated in this Chapter."
41) Chapter Threeter, Article 9 is added to read as follows:
"Notwithstanding the provisions of Article 8 of this Chapter, the
performance without the authorization of the right holder, of the following:
A. Reproduction of the design in the following cases:
If reproduction is performed by a third party for private purposes or for
the sole purpose of evaluation, analysis, research or teaching; or
If reproduction is of a non-original part of the design.
CPA/ORD/26 April 2004/81 11
Incorporation of the protected design in an integrated circuit if, on the
basis of evaluation or analysis of the protected design, creates a design
complying with the requirement of originality referred to in Article 3 (A);
Any of the acts as stipulated in subparagraph 2 of paragraph (A) of
Article 8 of this Chapter with respect to:
a similar design that is original and which was independently created;
a design or an integrated circuit incorporated in which is a design
offered on the market by the rights holder or the rights holder approved
offering of such; or
an integrated circuit that incorporates an illegally reproduced design or
a product that incorporates such circuit and alleged infringer when
acquiring such circuit or product was unaware and could not have been aware
that such circuit or product contains a design that was illegally
reproduced, in compliance with Article 10 of this Chapter."
Chapter Threeter, Article 10 is added to read as follows: "If
a person commits an act stipulated in subparagraph 3 of paragraph (C) of
Article 9 of this Chapter and the right holder had legally notified such
person, then that person is entitled to dispose of the stocked products
before being held liable provided that such person compensates the rights
holder with a sum equivalent to reasonable revenues had such act been based
upon a license between the parties."
Chapter Threeter, Article 11 is added to read as follows:
"A. Protection of the design shall be effective from the date the
application for registration is filed in Iraq.
B. The period of the design protection is ten years from the date of first
commercial exploitation anywhere worldwide, such period shall, however, not
exceed fifteen years from the date of creation of the design."
Chapter Threeter, Article 12 is added to read as follows:
"A. Any third party is entitled to request the cancellation of the
design in the following cases:
1. the design is unregistrable due to lack of any of the conditions
stipulated in Article 3 of this Chapter; or
CPA/ORD/26 April 2004/81 12
2. the application for registration does not include all
the required information, or if such information or attached documents are
contrary to the facts or in violation of the provisions of this Chapter.
B. The Registrar’s decision to cancel the registration of
the design in accordance with paragraph (A) of this Article may be appealed to
the Court of Appeal within sixty days of notification."
Chapter Threeter, Article 13 is added to read as follows:
"A. 1. Design ownership may be transferred in whole or
in part, with or without compensation. The design may have a lien against it
or be levied, which shall be published in the Official Gazette.
2. Transfer of design ownership, liens or levies to a third
party is effective only as of the date of registration in the Register.
B. Ownership of the design may be transferred by
inheritance."
Chapter Threeter, Article 14 is added to read as follows:
"Procedures for design ownership transfer, liens and levies on
ownership and all legal procedures shall be stipulated by regulation issued
by the Minister and published in the Official Gazette."
Chapter Threeter, Article 15 is added to read as follows: "The
owner may license a third party to exploit the protected design according to
a written agreement to be registered with the Registrar. The Registrar shall
keep the agreement of the contract confidential."
Chapter Threeter, Article 16 is added to read as follows:
"A. The rights holder upon bringing suit to prevent
infringement of the design or in anticipation of such a suit, may file a
complaint with the competent court, with a bond, which the court shall accept
for the following provisional measures:
Cease the infringement;
Seize goods subject of the infringement wherever it occurs; or
Preserve evidence related to the infringement.
B. 1. Before bringing a claim of infringement, the rights holder may, with
a bond, request the court to order any the procedures provided for in
paragraph (A)
CPA/ORD/26 April 2004/81 13
of this Chapter, without notifying the defendant. The court may grant the
rights holder’s request if any of the following is proven:
the design was infringed;
infringement is imminent, and may cause irreparable harm; or
the risk that the evidence will disappear or be damaged is great.
If the right holder does not file the lawsuit within eight days from the
date of the court's order for precautionary procedures, the ordered
procedures shall be deemed canceled.
The defendant may appeal the court's decision to order precautionary
procedures to the Court of Appeals within eight days from the date of the
defendant's notification of the decision. The Court of Appeals' decision
shall be final.
The defendant may claim compensation for damages if it is proved that the
plaintiff was unjustified in his claim for precautionary procedures or the
plaintiff did not bring the lawsuit within the period prescribed in item 2
of this paragraph.
The defendant may seek compensation for the damages suffered, if the court
concludes that the plaintiff’s lawsuit is without merit.
The court may, in all cases, seek the opinions of experts and specialists.
The court may order the confiscation of the infringing products and the
material and tools mainly used in infringement upon the design of these
products. The court may also order destruction of these products, material
and tools or dispose of them for any noncommercial purpose."
Chapter Threeter, Article 17 is added to read as follows: "The
Minister shall issue the necessary regulations for implementing the
provisions of this Law including fixing the fees to be assessed."
Chapter Threeter, Article 18 is added to read as follows: "The
protection of layout designs of integrated circuits provided under this Law
shall be extended to foreigners, whether natural or juridical persons, on a
basis no less favorable than that accorded to Iraqi nationals with regard to
the protection and enjoyment of such rights and any benefits derived from
such rights."
CPA/ORD/26 April 2004/81 14
5 1) Chapter Threequater is added following Chapter Threeter
for the protection of new varieties of plants.
52) Chapter Threequater, Article 1 is added to read as follows:
"The following words and phrases shall have the following meanings
wherever mentioned in this Chapter, unless otherwise indicated:
The Ministry:
The Ministry of Agriculture.
The Minister:
The Minister of Agriculture.
The Plant taxonomy:
Plants gradation in the plant kingdom is from the
group to the class to the family to the sort to the varieties.
The variety:
Any plant grouping within a single botanical taxon of the
lowest known rank, which grouping, irrespective of whether the conditions for
the grant of a breeder’s right are fully met, can be defined by the
expression of the characteristics resulting from a given genotype or
combination of genotypes, distinguished from any other plant grouping by the
expression of at least one of the said characteristics and considered as a
unit with regard to its suitability for being propagated unchanged.
The protected variety:
The variety registered according to the
provisions of this Chapter.
The education:
Breeding a new plant variety or discovering and
developing such.
The breeder:
The person who bred, discovered or developed a new
variety, or the legal successor to such person.
The Registrar:
The Registrar of the new plant varieties nominated by
the Minister.
The Register:
The Register of the new plant varieties."
Chapter Threequater, Article 2 is added to read as follows:
"The provisions of this Chapter shall become effective with respect to
the varieties listed under the various plant denomination determined by the
regulation issued in accordance with the provisions of this Chapter."
Chapter Threequater, Article 3 is added to read as follows:
CPA/ORD/26 April 2004/81 15
"A. A Register shall be regulated in the Ministry under the
supervision of the Registrar and shall be called the "Register of New
Plant Varieties" in which all the data related to the new plant varieties
shall be maintained. The name, the names and addresses of breeders, the
registration certifications and the resulting procedures and dispositions
shall be registered, including:
Any transfer, assignment or transfer of title, or licensing from its owner
to third parties for use while taking into consideration the confidentiality
included in the license contract; and
The mortgage or lien on the protected variety or any limitation for usage
of such.
B. 1. The public shall have the right to view the Register
and the documents related to the rights granted to the breeder and to view the
growth tests or any other necessary tests as stipulated in this Chapter
according to the instructions issued by the Minister and published in the
Official Gazette; and
2. The data and other documents that are reproduced and
maintained by the Registrar shall be considered to be the same as originals
unless otherwise determined."
55) Chapter Threequater, Article 4 is added to read as
follows: "The variety may be registered according to the following
criteria:
A. If the variety is novel such that at the date of filing the
registration application or at the date of the priority provided in paragraph
(A) of Article 8 of this Chapter and according to what may be required, then
plant propagating and harvesting materials of the variety have not been sold
or otherwise transferred to others by or with consent of the breeder for
purposes of exploitation of the variety:
For more than one year inside Iraq and for more than four years outside
Iraq; or
For more than six years outside Iraq if related to trees or vines;
B. If such materials are distinctive so that the variety differs clearly
from any other variety whose existence is a matter of common knowledge at the
time of filing the application, considering that any filing of an application
for the granting of plant variety protection or for the entering of another
variety in an official register of varieties, in any country, shall be deemed
to render that other variety a matter of common knowledge from the date of the
application, provided that the
CPA/ORD/26 April 2004/81 16
application leads to the granting of the right or to the entering of the
said other variety in the Register, as the case may be;
If it is uniform subject to the variation that may be expected from the
particular features of its propagation; or
If it is stable such that its relevant characteristics remain unchanged
after repeated propagation or, in the case of a particular cycle of
propagation, at the end of each such cycle."
56) Chapter Threequater, Article 5 is added to read as follows:
"The right in registering the variety shall be as follows:
To the breeder or to whom the variety rights shall be transferred to;
To all persons participating in its education if it is an outcome of their
joint effort provided that it is registered in equal shares among them,
unless they otherwise agree;
To the breeder prior in filing the variety's registration application if
such is educed by more than one person and if each person is independent
from the other; or
To the employer if the variety is educed by the employee in accordance
with an employment agreement in which the employee is obliged to undertake
such education unless the agreement may provide otherwise."
57) Chapter Threequater, Article 6 is added to read as follows:
"The variety shall be registered as follows:
The registration application shall be filed with the Registrar on the
designated form indicating the plant taxonomy of the variety, the proposed
denomination, and any other matters or data defined by the issued regulation
pursuant to the provisions of this Chapter;
Registration shall not be permissible if the application contains more
than one variety, and one fee is paid; and
If the applicant is not a citizen or resident of Iraq, then the applicant
shall appoint an authorized agent in Iraq."
58) Chapter Threequater, Article 7 is added to read as follows:
CPA/ORD/26 April 2004/81 17
"A. The date at which the Registrar received the application for
registration shall be deemed as its filing date provided that it fulfills all
the legal requirements and includes the applicant’s identification
information and a sample of the variety intended for registration.
B. If the Registrar discovers that the application does not fulfill the
requirements determined in paragraph (A) of this Article, the applicant may
either complete the application or make the necessary modifications within
thirty days from the date of notification by the Registrar. The date the
application is completed shall be considered the filing date. Where the
application is not completed as requested, the Registrar shall have the right
to consider the application abandoned, with an opportunity for appeal to the
Court of Appeals within sixty days from the date of notifying the
applicant."
59) Chapter Threequater, Article 8 is added to read as follows:
"A. 1. The applicant for plant variety registration shall include with
the application, a claim for the right of priority based on a previous
application filed in a country member of the World Trade Organization or other
relevant international agreement to which Iraq is also a member provided that
the application is filed in Iraq within a period not to exceed twelve months
as calculated from the date following the first filing date.
2. If the application includes a priority claim pursuant to item (1) of
this Article, the Registrar may ask the applicant, within three months from
the filing date, to provide an exact copy of the documentation related to the
first application approved from the office in which it was filed. The
Registrar may ask the applicant within such period to provide any samples or
other evidence which affirms that the variety subject of the first application
is the same variety of the application related to the priority right. In such
case, the filing date of the application shall be deemed as the same date on
which the application was filed in the other country.
If the applicant is unable to demonstrate the claimed priority right in
accordance with paragraph (A) of this Article, the application shall be
registered on the date filed with the Registrar.
The applicant may ask for a grace period of two years after the expiration
of the priority period to provide the Registrar with the necessary
information, documentation and required materials in accordance with this
Chapter for the purposes of examination pursuant to Article 9 of the
Chapter. If the filed application in the other country was not accepted or
was withdrawn, the applicant shall be given a grace period of six months
from the date of rejection or
CPA/ORD/26 April 2004/81 18
withdrawal of the application to provide the necessary information and
documentation for the examination."
60) Chapter Threequater, Article 9 is added to read as follows:
"A. The variety may be subjected to a technical examination to verify
the following:
It is listed under the plant taxonomy determined in its application; and
It fulfills the conditions of distinctiveness, uniformity and stability
provided in paragraphs (B), (C) and (D) of Article 4 of this Chapter.
B. The examination provided in item (2) of paragraph (A) of this Article
shall be carried out under the supervision of the Ministry by one of the
following methods:
Pursuant to the growth and germination examinations and any other
necessary tests carried out by a technical authority inside or outside Iraq
if such examinations or tests have been done in environmental conditions
comparable to those of Iraq; or
The Ministry shall carry out the examinations and tests cited in
subparagraph (1), or at the expense of the breeder, designate an authority
to perform the examinations or tests on its behalf.
C. A technical committee of those experienced and skilled in the art shall
be established in accordance with instructions issued by the Minister and
shall be asked to evaluate the results of the examinations and tests provided
in paragraph (B) of this Article to comply with the procedures of registering
the variety provided that such instructions shall include defining the other
tasks of this Committee; how it shall work, make decisions and all related
matters."
61) Chapter Threequater, Article 10 is added to read as follows:
"A. The Registrar shall ask the applicant to provide all the necessary
information and documentation for undertaking the technical examination
provided in Article 9 of this Chapter within the period defined in a
regulation issued in accordance with this Chapter. If the applicant does not
provide the requested information, the Registrar shall consider the
application as abandoned; this decision may be appealed to the Court of
Appeals within sixty days from the date of notification.
CPA/ORD/26 April 2004/81 19
B. The standards provided in Article 9 of this Chapter shall be met in
approving the application. Additional tests and examinations may be undertaken
after registration to ensure the maintenance of the variety's uniformity and
stability."
62) Chapter Threequater, Article 11 is added to read as follows:
"A. If the application fulfills all the conditions and requirements
defined in this Chapter, the Registrar shall accept the application and grant
the applicant preliminary approval that shall be published in the Official
Gazette after collecting the established fees. The publication shall include
the name of the variety and its plant class.
Any person shall have the right to object to the registration of any new
variety within ninety days from the date of announcement of the preliminary
approval in the Official Gazette.
Regulations shall be issued to determine the periods within which the
publication shall be completed, data shall be published, procedures, and
extensions of time for objecting to provisional approval, and other related
issues."
63) Chapter Threequater, Article 12 is added to read
as follows: "The applicant shall be given provisional protection during
the period between the date of publication of the application in the Official
Gazette and the date of registration of the
variety. The applicant shall have the right during such period
to use and make the variety, and be entitled to equitable remuneration from
any person who, during this period, has carried out acts which, once the
registration is granted, require the authorization of the breeder as provided
for in Article 14."
64) Chapter Threequater, Article 13 is added to read as
follows: "Unless an objection is made against the registration of the
variety, or the objection against the registration is rejected, the Registrar
shall register the variety and shall provide the breeder with a certificate
after collecting the established fees."
65) Chapter Threequater, Article 14 is added to read as
follows: "Taking into consideration the provisions of Articles 15 and 16
of this Chapter:
A. After registration of the variety, the following acts with
respect to the propagating material of the protected variety shall require the
authorization of the breeder:
production or reproduction (multiplication);
conditioning for the purpose of propagation;
CPA/ORD/26 April 2004/81 20
offering for sale;
selling or otherwise marketing;
exporting;
importing; or
stocking for any of the purposes mentioned cited in this paragraph.
The authorization of the breeder shall be required to carry out the acts
cited in paragraph (A) of this Article in respect of the harvested material,
including the entire plants and parts of plants obtained through the
unauthorized use of propagating material of the protected variety, unless
the breeder has had reasonable opportunity to exercise the breeder’s right
in relation to the said propagating materials.
The provisions of paragraphs (A) and (B) of this Chapter shall be also
applicable to the following varieties:
1. The varieties which are essentially derived from the protected variety
where the protected variety is not itself an essentially derived variety. The
variety is considered essentially derived from another variety according to the
following criteria;
it is predominantly derived from the initial variety, or from a variety
that is itself predominantly derived from the initial variety while
retaining the expression of the essential characteristics that result from
the genotype or combination of genotypes of the initial variety;
it is clearly distinguishable from the initial variety; and
except for the differences which result from the act of derivation, it
conforms to the initial variety in the expression of the essential
characteristics that result from the genotype or combination of genotypes of
the initial variety. If it is similar to the original variety as for its
main properties resulting from the hereditary composite or a group of the
hereditary composites for the original variety, except what is related to
the differences resulting from the derivation;
CPA/ORD/26 April 2004/81 21
The varieties which are not clearly distinguishable from the protected
variety in accordance with paragraph (B) of Article 4 of this Chapter; and
The varieties whose production requires the repeated use of the protected
variety.
It shall be permissible to obtain the essentially derived varieties as a
result of the selection of a natural or induced mutant, or of a somaclonal
variant, the selection of a variant individual from plants of the initial
variety, backcrossing, or transformation by genetic engineering.
The third party's performance of the acts provided in paragraphs (A) and
(B) of this Article shall be deemed as an infringement of the rights of the
breeder and shall be subject to penalties if the defendant knew, or had
reason to know, that the defendant infringed the rights of the
breeder."
Chapter Threequater, Article 15 is added to read as follows:
"A. Notwithstanding Article 14 of this Chapter, the breeder's right
shall not include the following acts of third parties for personal
non-commercial purposes, for purposes of experimentation or education of new
varieties.
B. Farmers shall be prohibited from re-using seeds of protected varieties
or any variety mentioned in items 1 and 2 of paragraph (C) of Article 14 of
this Chapter."
Chapter Threequater, Article 16 is added to read as follows:
"A. The breeder's right shall not include acts related to the
materials of the protected variety, or to the materials of the protected
variety, or to the materials of any variety covered under paragraph (C) of
Article 14 of this Chapter, or to materials derived from these materials, and
which the breeder has sold or marketed in any other form directly or with the
consent of the breeder in Iraq, unless these acts include the following:
Further propagation of the relevant variety; or
Exporting of material of the variety, which enables the propagation of the
variety, into a country which does not protect varieties of the plant genus
or species to which the variety belongs, except where the exported material
is for final consumption.
CPA/ORD/26 April 2004/81 22
B. The word "material" wherever mentioned in paragraph (A) of
this Article shall mean the propagation material of any kind, harvested
material, including entire plants and parts of plants, and any product made
directly from the harvested material."
68) Chapter Threequater, Article 17 is added to read as follows:
"The term of protection for the protected variety shall be twenty years
from the date of filing the application. With respect to trees and vines, the
term of protection shall be twenty five years."
69) Chapter Threequater, Article 18 is added to read as follows:
"A. It shall be permitted to transfer, mortgage or lien all or some of
the breeder's rights with or without compensation.
The right in the protected variety shall be transferred to the heirs by
inheritance.
The procedure for transferring, mortgaging and placing a lien on the title
of the protected variety and all relevant legal practices, including
licensing for its use in accordance with instructions issued for such
purpose by the Minister and published in the Official Gazette, shall be
determined.
The transfer of title of the variety shall be considered as evidence
against a third party only as of the date of registration of the transfer in
the Register and its publication in the Official Gazette."
70) Chapter Threequater, Article 19 is added to read as follows:
"It shall be permissible for the breeder to grant a license to a third
party for use of the protected variety in accordance with a written contract
that shall be registered with the Registrar."
71) Chapter Threequater, Article 20 is added to read as follows:
"The variety's registration shall be nullified only according to the
following criteria:
If it is proven that the conditions in Article 4 were not complied with at
the time of the grant of the breeder’s right;
If it is proven that where the grant of the breeder’s right has been
essentially based upon information and documentation furnished by the
breeder, the variety is not uniform or stable at the time of the grant of
the breeder’s right; or
That the breeder’s right has been granted to a person who is not
entitled to it, unless it is transferred to the person who is so
entitled."
CPA/ORD/26 April 2004/81 23
7 2) Chapter Threequater, Article 21 is added to read as follows:
"A. The Registrar may cancel the variety's registration only according
to the following criteria:
If it is demonstrated as a result of the technical examination provided in
Article 9 of this Chapter, that the variety's uniformity and stability are
no longer fulfilled;
If the breeder does not provide the Registrar with the information,
documentation or materials deemed necessary for verifying the maintenance of
the variety;
If the breeder fails to pay the annual fixed fees; or
If the breeder does not propose, where the denomination of the variety is
cancelled after the grant of the right, another suitable denomination.
B. For the purposes of applying subparagraphs 2, 3 and 4 of paragraph (A)
of this Article, the Registrar shall notify the breeder of the cancellation;
the cancellation shall not be done except after the expiration of the period
fixed by the issued regulation governing this Chapter."
Chapter Threequater, Article 22 is added to read as follows:
"The Registrar shall register the decision of the registration nullity
or its cancellation, which shall be published in the Official Gazette."
Chapter Threequater, Article 23 is added to read as follows:
"Decisions shall be subject to appellate review to the Court of Appeals
within sixty days from the date of the notification of the decision."
Chapter Threequater, Article 24 is added to read as follows:
Each variety shall be registered with a denomination which will be its
generic designation. The denomination may be composed of a word, a
combination of words and numbers or a combination of letters and numbers,
which may or may not have a meaning. The denomination shall not be
composed of numbers except where this is an established practice for
designating varieties.
A variety must be submitted to the Registrar under the same denomination
used in other countries unless the denomination is considered unsuitable
in Iraq.
CPA/ORD/26 April 2004/81 24
It shall be prohibited to use or register a denomination that otherwise
identifies another variety as it may cause confusion with the
earlier-registered variety from the same plant genus or one closely
resembling it. The denomination of the earlier-registered variety may be
registered or known either in Iraq or in any other country. This
prohibition shall remain in effect even after the expiration of rights in
the variety as the denomination may have acquired a certain meaning
related to the variety.
Taking into consideration paragraph (E) of this Article, anyone who,
within Iraq, offers for sale or markets propagating material of a variety
protected within Iraq shall be obliged to use the denomination of that
variety, even after the expiration of the breeder’s right in that
variety.
Prior rights of third persons shall not be affected. If, by reason of a
prior right, the use of the denomination of a variety is forbidden to a
person who, in accordance with the provisions of paragraph (D), is
obligated to use it, the Registrar shall require the breeder to submit
another denomination for the variety.
It shall be permissible to associate a trademark, trade name or any
similar indication with the registered variety denomination. If marketing
a variety or offering a variety for sale, such denomination must be easily
recognizable."
76) Chapter Threequater, Article 25 is added to read as follows:
"It shall not be permissible to register the denomination of the variety if
the denomination is:
In conflict with the provisions of this Chapter;
In conflict with the public order and morals; or
Misleads or causes confusion regarding the variety's characteristics,
value or identity of the variety or the identity of the breeder."
77) Chapter Threequater, Article 26 is added to read as follows:
"The proposed denomination for the variety shall be determined in the
application and the procedures of registering the denomination, its publication
and the periods related to such shall be determined by regulation issued
according to the provisions of this Chapter."
78) Chapter Threequater, Article 27 is added to read as follows:
The breeder of the protected variety, upon bringing suit to prevent the
infringement of rights in the protected variety or in anticipation of such
suit, may
CPA/ORD/26 April 2004/81 25
file a complaint with the competent court, with by a bond, which the court
shall accept for the following provisional measures:
Cease the infringement;
Seize goods subject of the infringement wherever it occurs; or
Preserve evidence related to the infringement
B. 1. The breeder of the protected variety, before bringing a claim of
infringement, may, with by a bond, request the court to order any of the
procedures provided in paragraph (A) of this Article, without notifying the
defendant. The court may grant the breeder's request if the owner proves any of
following:
the breeder’s rights have been infringed;
the infringement is imminent and may cause irreparable harm; or
the risk that the evidence will disappear or be damaged is great.
If the breeder of the protected variety does not file the lawsuit within
eight days from the date of the court's order for precautionary procedures,
the ordered procedures shall be deemed canceled.
The defendant may appeal the court's decision of precautionary procedures
to the Court of Appeals within eight days from the date of the defendant's
notification of the decision. The Court of Appeals' decision shall be final.
The defendant may seek compensation for the damages suffered if the court
concludes that the plaintiff’s lawsuit is without merit.
The court may, in all cases, seek the help of experts and specialists.
The court may order the confiscation of the infringing variety as well as
the materials and tools substantially used in the infringement of the
protected variety. The court may also decide to destroy the infringing
variety as well as the materials and tools or to dispose of them in any
noncommercial purpose."
CPA/ORD/26 April 2004/81 26
79) Chapter Threequater, Article 28 is added to read as follows:
The Minister shall issue the necessary regulations for implementing the
provisions of this Chapter including determining the annual fees for
renewing the registration, and other fees in accordance with the provisions
of this Chapter.
The instructions referred to in this Chapter shall be published in the
Official Gazette."
Section 2 Entry into Force
This Order shall enter into force on the date of signature.
L. Paul Bremer. Administrator Coalition Provisional Authority.