RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q3/FIN/1
22 October 1997
(97-4630)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION IN THE FIELDS OF PATENTS, LAYOUT-DESIGNS
(TOPOGRAPHIES) OF INTEGRATED CIRCUITS, PROTECTION OF
UNDISCLOSED INFORMATION AND CONTROL OF
ANTI-COMPETITIVE PRACTICES IN
CONTRACTUAL LICENCES
Finland1
The present document reproduces the questions put to the delegation of Finland and the
responses given in the review of legislation on patents, layout-designs (topographies) of integrated
circuits, protection of undisclosed information and control of anti-competitive practices in contractual
licences at the Council's meeting of 26-30 May 1997.2
_______________
I. REPLY TO THE GENERAL QUESTION ON PRIORITY RIGHTS3
Does your country recognize a right of priority on the basis of an earlier patent
application filed in any other WTO Member by a national of a WTO Member?
Yes.  According to the Law amending Section 6 of the Finnish Patents Law, which was issued
on 22 December 1995 and entered into force on 1 January 1996, the twelve months period of priorityis accepted on request to all applications first filed in a Member of the Paris Convention or a Member
of the WTO.
II. REPLIES TO QUESTIONS POSED BY JAPAN
1. In your country, are the following subject matters protectable by patent:  (1) plants and
animals, and (2) plant and animal varieties?
(1) The Finnish legislation does not prevent plants and animals from being protected by
patents in Finland, provided that the invention is novel, involves an inventive step and is useful.
                                                     
1 As regards laws and regulations relevant to the areas under review as notified by Finland uner
Article 63.2 of the Agreement, reference is made to documents IP/N/1/FIN/1, IP/N/FIN/P/1-4, IP/N/1/FIN/L/1and IP/N/1/FIN/U/1.
2 The minutes of the meeting have been circulated in document IP/C/M/13.
3 At the meeting of the TRIPS Council of 27 February 1997, Members agreed to respond to this
question in the context of the present review (document IP/C/M/12, paragraph 18).IP/Q3/FIN/1
Page 2
(2) Section 1.4(2) of the Patents Act states that patents shall not be granted for plant or
animal varieties.  However, an exclusive right to exploit plant varieties is provided under the Act on
Breeders' Rights No. 789/1992 of 21 August 1992.
2. In your country, is the act of offering for sale included in the exclusive rights of patent?
According to the prevailing interpretation of Section 3.1(1) of the Finnish Patents Act the act
of offering for sale is included in the exclusive rights of patents.  The legislative history of the PatentsAct supports this view by stating that preparatory measures to put an invention on the market
constitute a violation of the patent.
3. In your country, what kinds of acts are rec ognized as exceptions to the exclusive rights
conferred by a patent right?
According to Section 3.3 the exclusive right conferred by a patent shall not apply to:
(1) use which is not commercial;
(2) use of a patented product that has been put on the market within the European
Economic Area by the owner of the patent or with his consent;
(3) use in experiments relating to the invention as such;
(4) preparation in a pharmacy of a medicine prescribed by a physician in individual cases
or treatment given with the aid of a medicine so prepared.
Section 5 of the Patents Act states that, notwithstanding the patent, an invention may be
exploited on foreign vessels, aircraft or other means of transport for their own needs when temporarily
entering Finland in regular traffic or otherwise.
4. In your country, in which case is use wi thout the authorization of the right holder
permitted, including use by the government or by third parties authorized by the government?
Sections 45 to 50 of the Finnish Patents Act permit the issuance of compulsory licences under
a patent.  The main requirements for the issuance are:
- the invention is not worked or brought into use (i.e., imported) to a reasonable extent
in Finland (§45);  or
- the exploitation of the invention is dependent on a patent held by another person
(§46); or
- in the event of considerable public interest (§47);  or
- the invention was commercially exploited at the time the application documents were
made available (§48).
According to Section 4 of the Patents Act, any person who, at the time the patent application
was filed, was commercially exploiting the invention in Finland may continue to do so,
notwithstanding the grant of a patent, provided that the general nature of such previous exploitation is
maintained and that the exploitation does not constitute an evident abuse in relation to the applicant orIP/Q3/FIN/1
Page 3
his predecessor in title.  Such right of exploita tion shall also be afforded, subject to the same
conditions, to any person who has made substantial preparations for commercial exploitation of the
invention in Finland.
Finally, Section 75 of the Patents Act states that the government may decree that the right to a
given invention shall be surrendered to the State or to another party designated by the government,  if
the country is at war or in danger of war.
5. In your country, how is the obligation under Articles 34.1 and 34.2 of the TRIPS
Agreement regarding the shift of the burden of proof in civil proceedings for patent
infringement related to a process patent implemented?
By the amending Act No. 1695/95 of 22 December 1995 the reversal of burden of proof
concerning process patents was introduced to the Finnish Patents Act as Section 57a.  The reversed
burden of proof is on the alleged infringer only if the product obtained by the patent process is new.
III. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
1. Article 1(3) of the Finnish Patents Act of 1967 (last modified 22 December 1995)
provides that "programs for computers" are not to  be regarded as "inventions".  Please explain
whether, under this provision, inventions within the categories specified below are not eligible to
be patented under Finland law, notwithstanding the fact that the invention is novel, involves an
inventive step, and is useful:
(a) process inventions which, in whole or in part, consist of steps that are performed
by a computer and are directed by a computer program;
(b) product inventions consisting of elements of a computer-implemented invention,
including in particular:
(i) machine-readable computer program code stored on a tangible medium
such as a floppy disk, computer ha rd drive or computer memory; and
(ii) a general purpose computer whose novelty over the prior art arises
primarily due to its combination with a specific computer program.
If any of these types of inventions are excluded from eligibility to be patented, please
explain how Finnish patent law complies with the obligations of Article 27 of the TRIPS
Agreement, which mandates patent eligibility for all categories of invention without
discrimination.
According to Article 27 of the TRIPS Agreement, patents shall be available for any
inventions that are capable of industrial application.  Therefore, programs for computers as such arenot protectable by patent in Finland as they are not considered to be capable of industrial application.
It does not make any difference whether the programs are stored on a floppy disk, computer hard
drive or computer memory.
As a general rule, computer programs are protectable by copyright, not by patents.Nevertheless:
(a) Process inventions which consist of steps that are performed by a computer and are
directed by a computer program are protectable by patents provided that they are of
technical nature and some technical effect is reached.IP/Q3/FIN/1
Page 4
(b) The same applies to product inventions consisting of elements of a
computer-implemented invention.
[Follow-up question from the US]
In response to the US question regarding patent protection for computer programs,
Finland states that process inventions consisting of steps performed by a computer directed by a
computer program are patentable if they are of a "technical nature and some technical effect isreached".  Please explain in greater detail what the quoted expression means and give examples
of the kind of inventions that would meet this qualification.
Whether a software invention meets the criterion of "being of a technical nature" and whether
"some technical effect is reached" by it shall be determined in each case separately.  The Finnish
Patent Act does not give an exact definition for the concept "technical".  The field of patentable
technology covers at least e.g. software-related devices and control and adjustment methods for
processes.  The concept "technical" is given a wide interpretation and software inventions relating toe.g. image processing pattern recognition and signal processing have been considered eligible for
patent protection.  Software inventions concerning e.g. presentation of information and algorithms are
usually not patentable. However, applications purely relating to data-processing may also be granted
if the inventions they concern have a boosting effect on the functioning of the equipment where the
program is run or performed.
The number of precedents in this field is very low.  Annually there are only about ten
applications where the question whether the software invention meets the criterion of technical nature
or not comes up.  Until now no applications have been rejected by the Finnish Patent Office for the
reason that they relate to computer programs.  Consequently, this question is non existent in the case
law of the Board of Appeal of the Patent Office or the Supreme Court.
The Finnish Patents Act has in its essential parts been harmonized with the European Patent
Convention and the patent laws of the other Nord ic countries.  We aim at harmonizing also the
interpretation of the law in processing applications.  Our understanding is that our practice does not
significantly differ from that of the other Nordic countries or the European Patent Office.
2. Under Article 2 of the Finnish Patent Law, pharmaceutical products may be patented in
Finland.  It is our understanding that such protection was extended in 1987.  Please explain
whether an application filed prior to 1 January 1996, which contained claims only to a method
of manufacturing a pharmaceutical product may be amended to include a claim to the
pharmaceutical product per se .  If not, please explain how the Finnish patent law complies with
Article 70.7 of the TRIPS Agreement, which mandates that in cases where protection is subjectto registration (e.g. for patents), WTO Members must permit applicants whose applications
were pending on the date the Agreement became  applicable to the Member to amend their
applications to claim any enhanced protection under the provisions of the Agreement.
The Finnish patent legislation was amended in 1987 to permit also pharmaceutical products
per se  to be protectable by patents (Decree No. 932/1987).  Patent protection for pharmaceutical
products was made available after a transitional period of over seven years, i.e. patent applications
which were made on 1 January 1995 or thereafter can include a claim to the pharmaceutical product.Applications made before that date cannot be amended to include such a claim.
The amendment of legislation concerning patent protection for pharmaceutical products was
enacted already in 1987.  The amendment was made before negotiations of TRIPS even begun.  In
this sense, the TRIPS Agreement did not bring anythi ng new into Finnish patent legislation.  It wasIP/Q3/FIN/1
Page 5
only by coincidence that the transitional period provided in Finnish law ended at the same time as the
WTO Agreement came into force.
Thus, also in this respect, the Finnish patent  legislation is in full compliance with the
provisions of the TRIPS Agreement.
3. Article 3(1) exempts from the scope of the excl usive rights of a patent a "use which is not
commercial".  Please explain how this provisi on has been interpreted by Finnish courts by
giving examples, if any, of the types of activities that have been found to be "non-commercial"
and permissible without the consent of the patent  owner.  Please also explain whether Finnish
courts consider the economic effect of the non-commercial activities being conducted by a party
other than the patent owner.  If the courts do not consider this variable, please explain how this
provision of Finnish law complies with Articles 28 and 30 of the TRIPS Agreement, which
collectively require that the economic effect of th e activities on the patent owner be considered.
There is very little practice about the interpretation of the third paragraph of Section 3.  The
Supreme Court has held that the use of patented products in agriculture did constitute a violation of
the patent (Case 1920 II 926).  Also, the use in public service (state railways) did constitute a
violation (Case 1939 II 595).
4. Article 45 permits the issuance of a comp ulsory licence under a patent that has
not been worked or brought into use to a reasonable extent in Finland.  The provision furtherprovides that the evaluation of whether these standards are met will permit consideration of
whether there has been a sufficien t working of the invention in a foreign state, provided that
foreign state reciprocates in such an evaluation.  With regard to these provisions, please
explain:
(a) whether importation of a patented product at a level which satisfies Finnish
market demands will satisfy the requirement of a patent owner to bring the
invention into use to a reasonable extent in Finland, and if not, please explain
how this provision complies with Article 27.1 of the TRIPS Agreement, which
precludes discrimination in the enjoyment of patent rights with regard to local
manufacture or importation of the patented invention; and
(b) explain how Finland evaluates reciprocity if a foreign state does not permit the
possibility of issuance of compulsory licences.
(a) The importation of the product is equivalent to the bringing into use of the invention
in Finland.
(b) We cannot provide an answer to this ques tion, since the last paragraph of Section 45
has remained dead letter.
5. Articles 45 to 50 of the Finnish law permit the issuance of involuntary (compulsory)
licences under a patent for a variety of reasons.  Please explain how this regime complies with
the requirements of Article 31 of the TRIPS Agreement, and in particular:
(a) how Article 46 of the Finnish patent law concerning dependent patent
compulsory licences complies with the re quirement of Article 31(l)(i) that the
dependent patent concern an invention that involves "an important technicaladvance of considerable economic signif icance in relation to the invention
claimed in the" dominant patent;IP/Q3/FIN/1
Page 6
(b) how Articles 45 to 50 comply with the requirement of Article 31(c) of the TRIPS
Agreement, which specifies that licences for inventions in the field of
semiconductor technology may only be justified for public non-commercial use
or to remedy a judicial or administrative finding of anti-competitive practices;
and
(c) what factors are used by Finnish courts to determine compensation under a
compulsory licence, and whether co urts are required to ensure that
remuneration takes into account the economic value of the authorization.
(a) The practice concerning Section 46 of the Finnish Patents Act is almost non-existent.
However, the legislative history of the Patents Act supports the assessment that an
important technical advance is required for the issuance of dependent patent
compulsory licences.  The condition of considerable economic significance has not
been stipulated in the Finnish legislation.
(b) The semiconductor technology does not come within the scope of the Finnish Patents
Act.  The Act No. 32 of 11 January 1991 on the Exclusive Right to a Layout-Design
of an Integrated Circuit does not permit the issuance of a compulsory licence.
(c) The practice concerning Sections 45 to 50 of the Finnish Patents Act is in fact
non-existent (see answer to question 6).
[Follow-up question from the US]
In its explanation in regard to paragraph (b) of US question 5, Finland states that
"semiconductor technology does not come within the scope of the Finnish Patents Act".  Does
this mean that all technology related to semiconductors, for example, the materials of which
they are composed, is unpatentable?  If so, please explain how Finland's patent law complieswith the requirement of Article 27.1 of the TRIPS Agreement that patents be available in all
fields of technology not expressly excepted by paragraphs 2 and 3 of the Article, if those
inventions are new, involve an inventive step and are capable of industrial application.
As an explanatory note to our original reply to the question 5(b) posed by the US we would
like to define more closely that layout-designs are regulated by Act No. 32 of 11 January 1991 on theexclusive right to a layout-design of an integrated circuit and this act does not permit the issuance of a
compulsory licence.
All technologies related to semiconductors - like the example mentioned in the follow-up
question posed by the US - are protectable by patents under the provisions of the Finnish Patents Act
and paragraphs 45-50 of the Act apply.
6. Please indicate how many compulsory licen ces on a yearly basis have been granted in
Finland since 1 January 1993.
No compulsory licences have been granted in Finland since 1 January 1993.
The provisions concerning compulsory licences, i.e. Sections 45 to 50 of the Finnish Patents
Act, entered into force in 1967.  It seems that no compulsory licences have ever been granted under
these provisions.IP/Q3/FIN/1
Page 7
7. Please explain the measures, if any, that have been implemented in Finland to protect
against unfair competition those parties that ha ve provided confidential test or other data
concerning a pharmaceutical or agricultural chemic al product to Finnish regulatory authorities
pursuant to a request for marketing approval.
Pursuant to the Finnish Medicines Act (395/1987 as last amended by Act No. 643/1995) data
which consist of trade secrets provided to the regulatory authority are protected against disclosure andunfair competition under penalty of imprisonment or fine.  The same applies to data which consist of
trade secrets concerning agricultural chemical products, pursuant to the Finnish Chemicals Act
(744/1989 as last amended by Act No. 1073/1995).
Confidential test or other data provided to Finnish regulatory authorities also enjoy general
protection under the Publicity of Official Docu ments Act (83/1951 as last amended by Act
No. 628/1995) and the Decree on Certain Exceptions  to the Publicity of Official Documents
(650/1951 as last amended by Decree No. 1558/1994).  Pursuant to the above-mentioned Act andDecree, confidential data may be disclosed only w ith the consent or the other party who has provided
data to the authorities (paragraph 2 of Section 9 of the Act;  Section 1(9) of the Decree).
8. Please explain whether Finnish law conditions the enjoyment of protection in test data
provided to a Finnish regulatory agency on the co existence of patent rights in the regulated
product.  If such a condition is imposed (i.e., the data is protected against disclosure to thirdparties only while a patent remains in force covering the product), please explain how the
Finnish law complies with the requirements of Article 39.3 of the TRIPS Agreement, which
requires WTO Members to prevent use of such da ta in such a fashion as to represent unfair
competition to the party supplying the data and does not condition enjoyment of this protection
on the existence of concurrent patent protection.
In the pharmaceutical sector, under the EU Directive 21/87 the Member State of the EU may
condition the enjoyment of protection in test data on the coexistence of patent rights.  Finland has not
taken advantage of this possibility.  The Article 4.2 of the National Agency for Medicines Regulation
No. 1/1995 is intentionally silent about this possibility.  Therefore, the enjoyment of protection of
information provided to a Finnish regulatory author ity is not dependent on the coexistence of patent
rights in the regulated product.
IV. REPLY TO THE QUESTION POSED BY INDIA
1. With reference to the second paragraph of Section 45 of the Patents Act 1967, how are
the reciprocity provisions compatible with Article 4 of the TRIPS Agreement?
The second paragraph of Section 45 - like all the other provisions concerning compulsory
licences - has remained dead letter.  No decrees under this paragraph have been given and it cannot be
foreseen that this paragraph would be taken into use.