You are here
Developing legislation to obtain the expected protection is not enough. It is also important to put in place the necessary means to sanction on acts infringing the patent.
Like other rights relating to industrial property, the law 17/97 has provided a frame work for the protection of its own, namely the title VIII, Sections 201 and followings, which deal in detail with the infringement action. If this action is at the forefront legal actions to allowing to protect the right to a patent, there are also others for the same purpose as the action for nullity (Article 85-88 of Law No.17.97), which his distinguished by its special character, and unfair competition action or parasitism (art.184 and 185 of law No.17/97), which is a general aspect, since it is based on the general principles of responsibility, and that, al though its regulations contained in law No.17/97.
Action to claim ownership of the patent
The principle of this action lies in the prohibition of any person other than the inventor, except in determined cases as that of the employer (art. 18(a) of Law No.17/97), to demand the inclusion of the patent title at OMPIC. If, however, this occurs in defiance of the principle mentioned above, article 19 of law 17/97, allows the affected party to claim ownership of title delivered either contracted outside the inventor or his invention assignees, or in violation of legal or conventional obligation.
Nullity action of patent
The action for nullity is an action applied by any person or the public department, by which we demand to the court to order the total or partial cancellation of the patent title (art.85 and 88 of Law No.17/97). This action tends to sanction the absence of validity conditions of a patent issued under the article 85 mentioned above.
Under these articles, the person eligible to request the court pronouncing the invalidity of the patents one having interest. It may therefore be the inventor or his assignees, a person claiming a prior right to the patent, a beneficiary of a license agreement, obligatory or office, or a co-owner.
The infringement action represents the best way to protect against attacks that the owners of the patent right may suffer from, and the appellation of this action reflects its content. The Moroccan legislature has granted the inventor of the patent owner, who suffered damage as a result of a violation having been brought to his right, to seize the criminal or commercial court in the context of infringement, and, in agreement with the spirit of the TRIPS Agreement and, in particular, under the terms of the free Trade Agreement with the United States.
The infringement action is closely related to most of the rights of industrial property-(sections 1 and 201 of Law No.17/97). Moreover, if we compare the action on the brand and the one related to patent, it appears that the legislature has distinguished within the first, between two acts complained of, imitation and counterfeiting; However, under the second action, that is to say that relating to patent ,law has contented to punish counterfeiting.
If the foundation of industry and commerce lies in the freedom of enterprise and competition, that freedom is supposed to be exercised without violating the interests of others. Any transgression of this limit is considered as illegal and gives rise to liability if a damage results from this act, either intentional or not. The rules related to unfair competition are contained sections 184 and 185 of Law No.17/97, enouncing certain acts, within this competition and related actions. For cons, the legal basis for these acts and procedures that should be implemented is subject to the general rules, with the exception of competence by reason of the material, which belongs to the Commercial Court under Article 15 of Law No.17/97.