Development of the Cambodian Patent System – A New Approach to Patent Examination
Vichet NY, VNP Law Office (Cambodia)
In contrast to other developed countries, intellectual property laws in the Kingdom of Cambodia have been governed by 3 different authorities:
- The Ministry of Industry, Sciences, Technology and Innovation (MISTI) is responsible for administration and registration of patent, utility models and industrial design, and related matters thereof.
- The Ministry of Commerce (MOC) is responsible for administration, prosecution and registration of trade marks (including trade names), franchising agreements, geographical indications (GI) and related matter thereof.
- The Ministry of Culture and Fine Arts (FCFA) is responsible for administration and registration of copyright, neighbouring rights and related matter thereof.
Each section is governed by different laws and regulation. For instance, the Law on Patent, Utility Model Certificate, and Industrial Design (the “Patent Law”) was adopted in 2003, providing the standard requirement for patent granting by the Government in Section 1 of Chapter 2. It included the process of examination.
Since the 2000s, Cambodia has adopted IP-related principle laws to determine the conditions necessary to acquire intellectual property rights in its jurisdiction. Unfortunately, in practice, the implementation of the laws is limited, in particular the patent subject matter due to lack of human and financial resources. In this case, the Cambodian government has made a greater effort to improve the system for obtaining intellectual property rights and their protection more effectively. In this respect, from 2015, Cambodia has strived to adhere to various international treaties in the field of patents. Since the adoption of the patent law in 2003, there were over 300 applications filed with the Ministry of Industry and Handicraft (MIH)[], but none of them have been granted.
Recently, Cambodia acceded to various international treaties to improve and facilitate the acquisition of patent rights in Cambodia. For instance, Cambodia has acceded to international treaties and bilateral agreements to facilitate the process of obtaining patents in Cambodia.
a) Accession to the Patent Cooperation Treaty (PCT)
In 2016, Cambodia became the 151st member of the PCT. On December 8, 2016, the PCT entered into force in Cambodia; the designation of Cambodia is included in an International Application (AI). Cambodia may receive the patent filed through PCT in any country member to its national filing process. The national filing is open for international filing after December 8, 2016, and the PCT patent document shall be filed within 30 months from the priority date.
For a national filing, there is a requirement for the translation of a patent document of an IA into the Khmer language. The applicant shall enjoy the right to submit the Khmer translation to the Cambodian Patent Office within 6 months from the filing date.
b) Bilateral Agreement for the Grant and Recognition of a Patent with Singapore (IPOS) – Re-registration procedure
The re-registration of Singaporean patents is an expedited patent grant procedure by which the owner of a patent granted in Singapore is entitled to request re-registration of that patent in Cambodia. To assess the patentability of an invention, the Cambodian Patent Office, the “Ministry of Industry, Sciences, Technology and Innovation (MISTI), relies on the final search and examination report drawn up by IPOS. The re-registration application must have the same filing date as that of the Singapore patent at IPOS, and it is acceptable for any patent granted in Singapore after February 11th, 2003. Likewise, the re-registration application of such patent shall comply and meet all legal requirements under Cambodian Patent law, without which the application could be rejected by a Cambodian patent examiner.
The protection term of such a granted patent shall be exclusively governed by Cambodian Patent Law, which is 20 years from the filing date of the Singapore patent in Singapore.
c) Bilateral Agreement on Cooperation to Facilitate the Granting of Patents (CGP) with Japan (JPO) in 2016
CGP is a fast-track patent grant procedure which allows a Japanese patent owner to file his/her patent application in Cambodia and to obtain grant of a patent in a much shorter time. The MISTI will grant such a patent application if the application in Japan is granted by the JPO.
d) The Agreement with the European Patent Office (EPO) in 2017
The Validation Agreement entered into force in Cambodia on 23 January 2017. Cambodia is the 1st Asian country to recognize the validity of patents granted by the EPO in its territory.
The validation process is relevant to, and includes, the following:
- European patent applications filed after the entry into force of the Agreement;
- A request for validation of European patents in Cambodia will be filed with the EPO;
- The EPO will communicate to MISTI the request and all necessary information concerning the procedure relating to European patent applications and the patents concerned;
- The amount of the validation fees will be determined according to the Agreement between the EPO and MISTI;
- Pharmaceutical patents will be excluded from the application of the Agreement until Jan 1, 2033.
e) The Agreement with China on the Validation of Chinese Patents (SIPO) in 2018
Cambodia signed an Agreement with China on Chinese Patent Validation (SIPO) in 2018. Indeed, Ministerial Order No. 080 on the Chinese patent validation procedure was also issued in 2018.
To file an application for validation of a patent granted in China in Cambodia, certain conditions must be met:
- The Chinese patent shall be still valid at the time of filing for validation in Cambodia;
- It must be filed after January 22, 2003 in China; and
- The conditions of patentability provided for by Cambodian patent law must be respected