RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/235
8 December 2000
(00-5355)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Replies from Estonia to questions posed by Japan and Switzerland
By means of a communication from the Permanent Mission of Estonia dated
27 November 2000, the Secretariat has received copies of the following responses to questions posedby Japan and Switzerland, which were circulated in documents IP/C/W/208 and 207 respectively.
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JAPAN
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 4of the TRIPS Agreement.
In the Report of the Working Party on the Accession of Estonia to the World Trade
Organisation (WT/ACC/EST/28) the representative of Estonia said that Estonia deemed its
intellectual property right protection compatible wi th the TRIPS Agreement with no exceptions to the
principles of national and MFN treatment (paragraph 118). In accordance with paragraph 121 of the
Report Estonia applies the principle of national treatment in the protection of works.
The Estonian Copyright Act Section 3 stipulates:
"(1) The Copyright Act applies to works:1) the author of which is a citizen or a permanent resident of the Republic of Estonia;2) first published in the territory of the Republic of Estonia or not published but located
in the territory of the Republic of Estonia, regardless of the citizenship or the
permanent residence of the creator of the works;
3) which must be protected in accordance with an international agreement of the
Republic of Estonia.
(09.12.1999 entered into force 06.01.2000 - RT I 1999, 97, 859)
"(2) This Act applies to works first made available to the public in a foreign state or not
made available to the public but located in the territory of a foreign state, the author
of which is a person whose permanent residence or registered office is in the foreign
state and to which clause (1) 3) of this section does not apply, only if this state
guarantees similar protection for works of the authors of the Republic of Estonia andfor works first published in the Republic of Estonia."IP/C/W/235
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SWITZERLAND
A. PATENTS
1. Are all categories of products subject to patent protection under your law or are there any
exceptions. If so, please explain in detail what these exceptions are and how they apply.
In Estonia all categories of products of any fiel d of technology are subject to patent protection
if they meet certain conditions and the Estonian Patent Act includes Article 27.1 of the TRIPSAgreement.  The Estonian Patent Act Section 5 stipulates:
"(1) Patent protection may be given to inventions of any field of technology provided that
they meet the conditions for patentability provided for in § 8 of this Act and are
excluded from inventions not patentable under § 7 of this Act."
Exceptions (the Estonian Patent Act Section 7) are in accordance with paragraphs 2 and 3 of
Article 27 of the TRIPS Agreement:
"(1) The following shall not be protected with patents:
1) inventions contrary to ordre public and morality;
2) methods for treatment of the human or animal body and diagnostic methods
practised on the human or animal body;
3) layout-designs of integrated circuit;
 (2) The following biotechnological inventions shall not be protected with patents:
1) processes for cloning human beings;
2) processes for modifying the genetic identity of human beings;
3) processes for using human embryos for commercial purposes, including
processes prohibited by the Artificial  Insemination and Embryo Protection
Act (RT I 1997, 51, 824);
4) processes for modifying the genetic identity of animals which are likely to
cause them suffering without any substantial medical benefit to the health
care of human beings or animals, and also animals resulting from the use of
such processes;
5) processes which are biological in esse nce and are used for deriving biological
materials, producing plant or animal varieties, except microbiological
processes for deriving microorganisms;
6) biotechnological inventions that can be used solely for one particular plant or
animal variety."
2. Does your law make compulsory licences subject to the conditions enumerated in Article 31
of the TRIPS Agreement?  If exceptions are provided for, please describe in detail what these
exceptions are and how they apply in Estonian law.IP/C/W/235
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Section 47 of the Estonian Patent Act provides principles of compulsory licences and includes
all conditions of Article 31 of the TRIPS Agreement.  No exceptions are provided for.
3. Does your law, in accordance with Article 27.1 in combination with Article 31 of the TRIPS
Agreement, recognize importati on as "working a patent" (and therefore preclude compulsory
licence)?
The Patent Act recognizes importation from any Member state of the WTO as "working a
patent".  The Patent Act Section 47 stipulates:
"(11) A compulsory licence shall not be granted if the patentee imports, from any member
state of the World Trade Organization, a product protected by a patent in the extent
meeting the needs of Estonian domestic market."
4. Does your legislation provide for the principal of the reversal of burden of proof in a process
patent litigation? Please name the relevant law and explain the relevant sections.
The Patent Act provides the principles of burden of proof in accordance with Article 34 of the
TRIPS Agreement.  Section 551 of the Patent Act stipulates:
"(1) If an action has been filed in court under subsection 15(2) of this Act, the defendant
shall be obliged to prove that for making a similar product he has used a process
different from the patented process.
(2) If the use of a different process is not proved, the product shall be deemed to have
been made according to the patented proces s, provided that in spite of reasonable
efforts the patentee has not succeeded in specifying the process actually used for
making this product and the use of the patented process is probable, or if the product
made according to the patented process is new.
(3) Evidence submitted by the defendant and containing his manufacturing or business
secrets may be disclosed solely with the consent of the defendant.  [16.06.1998]".
Subsection 15(2) of the Patent Act deems the making, use, distribution, selling, offering for
sale or obtaining (including the import) of a product, which is similar to the product of patented
process, to be the infringement of the exclusive right of the patentee, unless it is proved that thesimilar product has been made according to a different process.
B. P
ROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed and confidential test data
or other data submitted by an applicant to the responsible  State agency in the procedure for marketauthorisation 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 a second
applicant from relying on, or from referring to the original data of the first applicant, when applying
subsequently for market authorisation for his own product.  Does your legislation provide for
exceptions to this? If yes, under what conditions would such exceptions apply?
According to the Competition Act confidential  information is defined as any technical,
technological or other business information the publication of which is not mandatory, and
information concerning commercial negotiations, transactions, market research and other
circumstances.  Misuse of confidential information is the use of confidential information of another
undertaking if such information is obtained unlawfully or the use thereof is contrary to an agreemententered into with the other undertaking.  The misuse of confidential information is prohibited.IP/C/W/235
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The Databases Act stipulates that data maintain ed in state and local government databases is
public, except if access to or release of data is prohibited by law or if the data is intended for internal
use only.
The Ministry of Social Affairs and the State Agency of Medicines have drafted amendments
to the Medicinal Products Act stipulating the requirements of Article 39 of the TRIPS Agreement.
The Ministry of Agriculture is currently drafting amendments concerning agricultural chemicals to the
Plant Protection Act.
No exceptions are provided by Estonian law.
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