Validation of European patents in Cambodia (KH) with effect from 1 March 2018
1. On 23 January 2017, the President of the European Patent Office and the Cambodian Minister of Industry and Handcraft signed an agreement on the validation of European patents (validation agreement). On 24 November 2017, the King of Cambodia promulgated the Royal Kram NºNS/RKM/1117/017 on the ratification of the agreement on validation of European patents between the Government of the Kingdom of Cambodia and the European Patent Organisation. On 8 December 2017, a declaration (Prakas) Nº282 MIH/2017 was adopted on the Regulation and Procedures for the validation of European Patents in Cambodia. The adoption of this legislation has created the legal basis necessary for the validation system to operate.
2. The validation agreement enters into force on 1 March 2018. From that date it will be possible to validate European patent applications and patents in Cambodia, where, after validation, they will confer essentially the same protection as patents granted by the EPO for the now 38 member states of the European Patent Organisation.
3. Validation in Cambodia is mainly governed by the Declaration (Prakas) Nº282 MIH/2017.
3.1 It is important to draw the attention of applicants to the fact that under the Law on Patents in force in Cambodia, pharmaceutical products are excluded from patent protection[ 1 ]. Cambodia currently benefits from the World Trade Organisation waiver allowing Least Developed Countries (LDCs) to avoid granting and enforcing IP rights on pharmaceutical products until 2033. This waiver would also apply to European patents providing protection for pharmaceutical products, for which validation is sought in Cambodia.
3.2 Applicants can however benefit under Article 70.8 TRIPS of a so-called "mailbox system". According to this "mailbox system", Cambodian legislation[ 2 ] authorises the filing of patent applications for pharmaceutical products, despite the fact that they are excluded from patent protection. These national applications will not be examined as to their patentability until the end of the transitional period. Following that period, protection may be granted for the remainder of the patent term, computed from the filing date of the application.
4. Validation in Cambodia occurs at the applicant's request.
4.1 Validation in Cambodia is deemed requested for any European or international application filed on or after 1 March 2018. It is not available for applications filed prior to that date, or for any European patents resulting from such applications.
4.2 The validation fee is EUR 180.[ 3 ] It must be paid to the EPO within six months of the date on which the European Patent Bulletin mentions the publication of the European search report, or, where applicable, within the period for performing the acts required for an international application's entry into the European phase.
4.3 After expiry of the relevant basic time limit, the validation fee can still be validly paid within a two-month grace period, provided that within that period a surcharge of 50% is also paid.[ 4 ] If the designation fee has not been paid and further processing is available, the validation fee can still be paid along with the further processing concerning the designation fee. If the validation fee is not paid in due time, the request for validation is deemed withdrawn.[ 5 ]
4.4 Applicants should be reminded that a validation fee which has been validly paid is never refunded, including the case where a validation fee has been paid for an application falling within the purview of the exception for pharmaceutical products.
5. A reference to Cambodia as a validation state will be included in the request for grant form (EPA/EPO/OEB 1001) and the form for entry into the European phase (EPA/EPO/OEB 1200). The updated versions of the forms will be available on the EPO website as of 1 March 2018.
6. Further information about validating European patent applications and patents in Cambodia will be published in the EPO's Official Journal in due course and then incorporated into its brochure on "National law relating to the EPC".[ 6 ]
[ 1 ] Article 4(iv) and Article 136 of the amended Law on Patents (Royal Kram Nº NS/RKM/1117/016).
[ 2 ] Rule 45 of the Prakas (declaration) No 766 MINE.DIP.PRK on the procedure for granting patents and utility model certificates.
[ 3 ] The code for the validation fee for Cambodia (KH) is 423.
[ 4 ] The code for the surcharge on the validation fee for Cambodia (KH) is 453.
[ 5 ] See Notice from the EPO dated 5 February 2015 concerning the time limits for paying validation fees (OJ EPO 2015, A19).
[ 6 ] See www.epo.org/law-practice/legal-texts/national-law.html