RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/338/Add.2
13 March 2002
(02-1303)
Council for Trade Related Aspects of
Intellectual Property RightsOriginal: French
REVIEW OF LEGISLATION
Replies from Gabon to Questions Posed by Australia, the European Communities
and their Member States, Japan and Switzerland
Addendum
By means of a communication from the Permanent Mission of Gabon dated 4 March 2002,
the Secretariat has received the following replies to questions posed by Australia, the European
Communities and their member States, Japan and Switzerland, as circulated in documentsIP/C/W/328, 320, 322 and 315, respectively.
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AUSTRALIA
A. 
PATENTS (INCLUDING PLANT VARIETY PROTECTION )
1. How does your country provide protection for new plant varieties as required under
Article 27.3(b)?  If your legislation is based on the UPOV system, on which UPOV Act was it
modelled?  Can new plant varieties be protected by patent in your country?
New plant varieties are dealt with in Annex X of the revised Bangui Agreement and are
protected by plant variety certificates, not by patents.
THE EUROPEAN COMMUNITIES AND THEIR MEMBERS STATES1
B. COPYRIGHT AND RELATED RIGHTS
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligatio n of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
Article 66 of Annex VII of the Bangui Agreement provides for this.
9. Please state whether the droit de suite  provided for in Article 14 ter of the Berne
Convention is protected by your legislation.
                                                     
1 These replies to questions posed by the European Communities and their member States supplement
those that were circulated in document IP/C/W/338/Add.1.IP/C/W/338/Add.2
Page 2
Yes, Gabonese legislation does protect the droit de suite  (Article 10, Annex VII of the Bangui
Agreement, Articles 28.5 and 48 of law 1/87).
F. PATENTS
31. Please state if your legislation provides for patent product protection of pharmaceutical
and agricultural chemical products.  If the affirmative, please indicate the legal reference.
Pursuant to Annex I of the Bangui Agreement, pharmaceutical and agricultural chemical
products do not enjoy patent protection.
32. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.
When a patent is delivered for a process, it covers the products obtained directly by that
process (Article 7(b) of Annex I of the Bangui Agreement).
33. Please explain the additional conditions, if any, in your legislation other than the
sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g. submission of
justification for access to genetic material or prior informed consent to its use).  If such
additional conditions exist, please point out the relevant legislation and describe the additional
conditions in detail.
The existing regulations do not provide for any additional conditions other than those
requiring the applicant for a patent to draft his application sufficiently clearly and completely so that a
person having ordinary knowledge and skill in the art could carry it out (Article 14(d) of Annex I to
the Bangui Agreement).
34. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
There are no limited exceptions to the exclusive rights accorded to a patent holder other than
non-voluntary licences.
35. Please explain whether or not your legislatio n provides for compulsory licensing.  If so,
please explain in detail the conditions under which a compulsory licence may be granted.  In
particular, please explain how your national le gislation considers individual merits in the
authorization of such use.
Gabonese legislation provides for the grant of compulsory licences under the following
conditions:
- Non-voluntary licence for non-working (Article 46);- non-voluntary licence for a dependent patent (Article 47);- ex-officio licences (Article 56);- licences of right (Article 57).IP/C/W/338/Add.2
Page 3
36. Please explain how your legislation explicitly ensures that a proposed user has made
efforts to obtain authorization from the righ t holder on reasonable commercial terms and
conditions and that such efforts have not been successful within a reasonable period of time.  In
this context, how do you define "reasonable period of time".  Please also explain how your
legislation ensures that the use of a compulsory  licence shall be author ized predominantly for
the supply to the domestic market of the Member authorizing such use.
The applicant for a compulsory licence must submit together with his application proof that
he had first contacted the patent holder by registered letter and requested a contractual licence but had
been unable to obtain such a licence on reasonable commercial terms and conditions or within a
reasonable period of time.
The length of the period of time is set in the regulations under the Bangui Agreement.
37. Please state if your legislation grants addi tional protection for innovations after the
20 years of patent protection has lapsed.
Under Gabonese law, innovations made to an invention are protected by the certificate of
addition.  This protection expires with the main patent.
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Under Article 68 of Annex I of the Bangui Agreement of 24 February 1999, any patent
granted or recognized under the Bangui Agreement of 2 March 1977 will remain in force for a period
of 20 years as from its filing date.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects topographies.
Layout-designs of integrated circuits may be protected under Article 2 of Annex IX of the
Bangui Agreement, if, and to the extent that, they are original within the meaning of Article 3 of that
same Annex.
A registration may be applied for only if the layout-design has not yet been commercially
exploited or if it has been commercially exploited for two years or less anywhere in the world.
40. Please explain what protection your national  legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographiesincluding integrated circuits or other articles in which a topography is incorporated in
accordance with Article 36 of the TRIPS Agreement.
The protection afforded under Article 5 of Annex IX of the Bangui Agreement is independent
of whether or not the integrated circuit incorporating the protected layout-design is itself incorporatedin an article.  Subject to the provisions of Articles 6 and 15, the following acts shall be unlawful when
carried out without the authorization of the holder:
- The act of reproducing, whether by incorporation in an integrated circuit or otherwise, a
protected layout-design in its entirety or any part thereof, except the act of reproducingany part that does not fulfill the requirement of originality referred to in Article 3;IP/C/W/338/Add.2
Page 4
- the act of importing, selling or otherwise distributing for commercial purposes a
protected layout-design, an integrated circuit in which a protected layout-design is
incorporated or an article in which such integrated circuit is incorporated to the extent
that it continues to contain a layout-design that is unlawfully reproduced.
41. Please explain how your legislation provi des for the derogation from Article 36 as
specified in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable
grounds to know when acquiring an integrated circuit or an article incorporating such an
integrated circuit that it contains an unlawful topography.
Our legislation has implemented provisions concerning this derogation in Article 6 of
Annex IX of the Bangui Agreement.
42. Please state the term of protection granted by your legislation to topographies.
The protection afforded a layout-design under Article 7 of Annex IX of the Bangui
Agreement takes effect:
- On the date of the first commercial exploitation of the layout-design, anywhere in the
world, by the holder or with his consent, on condition that an application for protection
be filed by the holder with the Ministry responsible for industrial property or with OAPI
within a period of at least two years;  or
- on the filing date allocated to the application for registration of the layout-design filed by
the holder  if the layout-design has not been the subject of prior commercial exploitation
anywhere in the world.
The protection afforded a layout-design under Annex IX of the Bangui Agreement ceases at
the end of the tenth calendar year following the date on which it took effect.
H. PROTECTION OF UNDISCLOSED INFORMATION
43. Please explain whether or not your legislatio n grants a defined period of time for the
protection of undisclosed information.  If so, please give the time span.
Gabonese Legislation does not grant a defined period of time for the protection of undisclosed
information.
44. Please explain how your legislation defines "undisclosed information".
The Bangui Agreement deals with undisclosed information in Article 6 of Annex VIII relating
to unfair competition, which stipulates that information is considered to be "confidential", when:
- In its totality or in the configuration or exact assembly of its elements, it is not
generally known to persons belonging to the circles that normally deal with that typeof information or is not readily available to them;
- it has a commercial value because it is confidential;- its lawful holder has taken reasonable precautions, in view of the circumstances, to
keep it confidential.IP/C/W/338/Add.2
Page 5
45. Please explain how your legislation de fines data submitted to governments or
governmental agencies.
This covers confidential data obtained from tests or other confidential data whose production
requires considerable effort and which have be en communicated to a competent authority for the
purpose of obtaining authorization to market pha rmaceutical products or chemical products for
agriculture comprising new chemical entities (Article 6 (4) of the Bangui Agreement).
I. ENFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
All the annexes of the revised Bangui Agreement provide for effective action against all
infringements of intellectual property rights.
As pertains to patents:  Articles 58 et seq. of Annex 1 to the Bangui Agreement provide for
the offence of infringement and stipulate penalties.  Civil action for damages may be brought
following an infringement seizure procedure (Articles 64 and 65).
Other sanctions: confiscation, destruction of infringing objects or publication of the
judgement are possible, amongst other remedies (Article 67).
47. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies of final administrative decisions.
The Bangui Agreement envisages mechanisms for appealing against final administrative
decisions.
For example, at the request of the owner of th e patent or the beneficiary of the non-voluntary
licence, the civil court may amend the decision on the grant of the non-voluntary licence where new
facts justify such amendment (Article 52.1 of Annex I).
Moreover, appeals from decisions of the Organization concerning restoration shall lie to the
Organization's High Commission of Appeal within a period of 30 days from the date of receipt of
notice of the decisions (Articles 41.8 of Annex I;  36.6, Annex II).  Article 15 of Annex III also
stipulates that if an application is rejected by the organization, the applicant has 60 days in which to
appeal against this decision and may file the appeal with the High Commission of Appeal.
Lastly, it should be emphasized that in penal, civil, commercial and administrative matters,
Gabonese legislation provides that judicial or administrative decisions of first instance may be
challenged in courts of appeal and even in the Supreme Court, which acts as a court of cassation.
48. Please describe how your legislation authorizes judges to order production of evidence
by the opposing party.  Please give precise information of what measures are taken to ensure the
protection of confidential information.
Articles 16 to 19 of the Code of Civil Procedure governing the production of evidence in civil
and commercial cases empower one party to obtain from the other, evidence in his possession, bymeans of a court injunction, on pain of a fine.
As regards the burden of proof, for the purposes of the civil procedure for violation of the
owner's right, Article 66 of Annex I of the Bangui Agreement stipulates that if the subject-matter ofIP/C/W/338/Add.2
Page 6
the patent is a process for making a product, the judicial authority shall be authorized to order the
defendant to prove that the process used to make an identical product is different from the patented
process in one of the following situations:
- The product made by the process is new;- there is a strong possibility of the identical product having been made by means of the
process and of the owner of the patent having been unable, in spite of reasonable
effort, to establish what process was actually used.
49. Please quote what provisions of your legislation authorize judges to order a defendant to
desist from an infringement.
Through summary proceedings or direct summons, the judge may order that precautionary
measures be taken against any person who infringes another person's intellectual property rights.
These measures are established in Articles 67, 47, 48, 31, 16, 16, 62, 1, 35 and 44 respectively
of Annexes I-X to the Bangui Agreement.
50. Please quote what provisions of your legislation authorize judges to order the payment
of the right holder's expenses by the infringer.
Through summary proceedings or direct summons, the judge may order that precautionary
measures be taken against any person who infringes another person's intellectual property rights.
These measures are established in Articles 67, 47, 48, 31, 16, 16, 62, 1, 35 and 44 respectively
of Annexes I-X to the Bangui Agreement.
51. Please quote what provisions of your legislation  authorize judges to order the payment
of the right holder's expenses by the infringer.
Under Articles 43.2 and 46.2 of Annex III to  the Bangui Agreement dealing with marks
pertaining to products or services, damages may be awarded, in the event of infringement of their
rights, to the owners of the mark, the exclusive lic ensee and to any other parties to a licence contract
by way of compensation for any harm suffered.
Article 58 of Annex I to the Bangui Agreement contains similar provisions.
52. Please explain if and how judges have the authority to order that infringing goods are
placed outside channels of commerce or destroyed.
The Bangui Agreement contains provisions in this connection, in particular in Article 67 of
Annex I as pertains to patents, and in Article 43 of Annex III as pertains to marks.
53. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
The Bangui Agreement provides for the possibil ity of bringing actions for damages in the
event of abuse by the plaintiff (Articles 64, 65 of Annex I;  and 43 and 48 of Annex I of the BanguiAgreement).
54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.IP/C/W/338/Add.2
Page 7
The provisions relating to infringement se izure in the Bangui Agreement implement
Article 50 of the TRIPS Agreement.
55. Please identify the competent authorities in your jurisdiction who receive requests from
right holders for an application to suspend th e release of counterfeit goods by the customs
authorities.
These are judges, customs officers and members of the judicial police.
56. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
This is considered in the draft law on intellectual property now being prepared.
57. Please indicate whether or not your legislation provides for a de minimis  imports
exception.
This matter is also being covered in the draft law on intellectual property now being prepared.
58. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
Article 64 of Annex VII of the revised Bangui Agreement indeed contains provisions on the
implementation of Article 61 of the TRIPS Agreement.  Articles 325 and 326 of Gabon's Criminal
Code also provide for and penalize infringement of literary and artistic property rights with a prison
sentence of up to two years and a fine of CFAF 1,200,000.  Forfeiture is also possible.
JAPAN
C. COPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of  the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
Works by foreign nationals published on the territory of Gabon enjoy the same protection as
that afforded to works by Gabonese nationals.  Subject to application of the international conventions
to which the Gabonese Republic is a party, works not comprised in either of the above-mentioned
categories shall not enjoy the protection afforded by the Gabonese Law unless the country of which
the original owner of copyright is a national, or in which he is domiciled, affords equivalentprotection to works by Gabonese nationals.
However, neither the integrity nor the authorship of those works shall be affected (Article 77
of Law No. 1/87 of 29 July 1987).
Articles 3 and 47 of Annex VII of the Bangui Ag reement are also very clear in this regard.IP/C/W/338/Add.2
Page 8
SWITZERLAND2
A. PATENTS
2. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of
the TRIPS Agreement, consider importation as "working" a patent (and therefore precludecompulsory licensing, if a product is being imported)?
Article 7.3 of Annex I of the Bangui Agreement pr ovides that the working of a patent granted
for a product can consist simply of importing that product into the territory.  This provision clearly
stipulates that the importation of a product is equivalent to the working of a patented invention, as is
manufacturing, offering for sale, or using that product.
3. Does your legislation make the granting of a compulsory license subject to all the
conditions enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant
provisions of law.
Under Gabonese law, the granting of compulsory licences is indeed subject to the conditions
set out in Article 31 of the TRIPS Agreement (non-working, dependent patent).
4. Does your legislation provide for the principle of the reversal of burden of proof in a
process patent litigation?  Please cite the relevant provisions of law.
Article 66 of Annex I of the Bangui Agreement de als with the burden of proof in the event of
process patent litigation and provides that if the subject-matter of the patent is a process for making
the product, the judicial authority may be authorized  to order the defendant to prove that the process
used to make an identical product is different from the patented process in one of the following
situations:
- The product made by the process is new;- there is a strong probability of the identical product having been made by means of
the process and of the owner of the patent having been unable, in spite of reasonable
effort, to establish what process was actually used.
B. 
PROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market
authorization of a pharmaceutical or of an agricultural chemical product is protected against
disclosure and against unfair commercial use by a competitor, for example by prohibiting asecond applicant from relying on, or from referring to the original data of the first applicant,
when applying subsequently for market auth orization for a similar product.  Does your
legislation provide for exceptions to this?  If yes, under what conditions would such exceptions
apply?  Does your legislation set a specific term of protection for undisclosed test or other data
of the first applicant?
The Article in Annex VII of the Bangui Agreement states that information is considered
confidential when:
                                                     
2 These replies to questions posed by Switzerla nd supplement the one circulated in document
IP/C/W/338/Add.1.IP/C/W/338/Add.2
Page 9
- In its totality or in the configuration or precise assembly of its elements, it is not
generally known to persons belonging to the circles that normally deal with that type
of information or is not readily available to them;
- it has commercial value because it is confidential;  and- its lawful holder has taken reasonable precautions, in view of the circumstances, to
keep it confidential.
It is also stated that unfair competition shal l be considered to comprise any act or practice
which, in the course of industrial or commercial activities, constitutes or leads to:  dishonest use in
trade of confidential data obtained from tests or other confidential data whose production requiresconsiderable effort and which have been communicated to a competent authority for the purpose of
obtaining authorization to market pharmaceutical products or chemical products for agriculture
comprising new chemical entities, or the disclosure of such data, except where necessary to protect
the public unless measures have been taken to ensure that the data are protected against dishonest use
in trade.
On the other hand, the legislation does not specify a defined period of time for such
protection.
C. 
ENFORCEMENT
6. Please indicate remedies provided by your legislation which constitute effective
deterrents to infringements of intellectual property rights.
The corrective measures envisaged under our legislation in this regard are the following:
- Damages;
- infringement seizure;- fines and imprisonment;- provisional or definitive closure of establishments operated by an infringer;- confiscation of the proceeds of the offence;- confiscation or destruction of recognized infringing objects;
- confiscation of the devices or means specifically intended for committing the
infringement;
- publication of  the judgement at the expense of the infringer.
7. Please describe any new initiatives that are planned to improve enforcement of
intellectual property rights in your country, particularly initiatives related to criminal
enforcement.
The new initiative foreseen following the revision of the Bangui Agreement is the preparation
of the draft law on intellectual property in the Gabonese Republic, which will allow all the national
provisions of the TRIPS Agreement to be taken into account.
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