During the last 18 months the Czech Republic has introduced a number of legislative changes in the intellectual property area. These changes affect almost all fields of intellectual property law, ranging from patents and utility models to competition law and copyright. The main objective of most of the amendments is to harmonize the Czech law with that of the European Union and to implement the Czech Republic's commitments resulting from TRIPs and other international conventions into the Czech legal system. They also aim to secure more efficient IP protection, in particular regarding the enforceability of IP rights and availability and scope of IP protection.
The purpose of this article is to give a systematic overview of the newly introduced amendments in each important IP sector.
Patents
With effect from May 10 2000, the Patent Act (Act No. 527/1990 Coll, on Inventions, Industrial Designs and Rationalization Proposals) has been amended by Act No 116/2000 Coll, introducing supplemental protection certificates for pharmaceutical and phytotherapeutical preparations and preparing the Czech Republic for accession to the European Patent Convention.
Supplemental protection certificates (SPCs) are granted on active ingredients of preparations which are before their introduction into the market subject to registration pursuant to the Act on Pharmaceuticals and Act on Phytotherapeutical Preparations. Applications for SPCs may be filed by owners of patents protecting substances, or methods of preparation of substances or of use of a substance as a pharmaceutical or phytotherapeutical preparation. The application has to be filed within six months from the date of registration of the preparation, or if the preparation has been registered before the grant of the patent, within six months from the date of grant of the patent. The SPC provides for an additional period of protection which is equal to the period between the filing date of the basic patent and the date of the first registration allowing to introduce the preparation into market in the Czech Republic minus five years, which, however, may not exceed five years. The SPC confers on its owner the same rights as those deriving from the basic patent. However, the protection is restricted to the chemical substance or composition of substances, micro-organism or composition of micro-organisms which are an active ingredient of a registered preparation.
The amendments related to the accession of the Czech Republic to the European Patent Convention shall become effective from July 1 2002. From this date, European patent applications with effect in the Czech Republic and European patents shall have the same effects in the Czech Republic as national patent applications and national patents. Patent claims of published European patent applications shall be disclosed by the Czech Patent Office to the public in Czech translations. Within three months from the date of publication of grant of an European patent, the patent owner shall submit a Czech translation of the letters patent to the Czech Patent Office for publication.
In this connection, Czech national patent law has been adapted to the European Patent Convention, in particular as far as conditions of patentability and effects of a patent are concerned. Some basic concepts of patent law, eg state of the art or industrial applicability, are now defined in exactly the same way as in the European Patent Convention. Also the rights conferred by a patent have been newly defined. For process patents, a presumption has been provided that identical products are considered to be obtained by the patented process if it is highly probable that the product was produced by the patented process and the patent owner was not able by exerting adequate efforts to determine the actually used production process unless the contrary is proved. The Amendment has also expressly confirmed the principle of national exhaustion of patent rights.
Utility models
Act No 478/1992 Coll, on Utility Models, has undergone some minor changes, regarding in particular the possibility of conversion of the European patent application to a national utility model application.
Trade marks
The modifications affecting the Trade Mark Act (No 137/1995 Coll) have removed some of the major deficiencies of the prior law. In particular, the Amendment has introduced the possibility to overcome the obstacle of prior registrations or applications of identical marks or marks containing identical elements, raised ex officio by the Industrial Property Office, by submitting a letter of consent of the owner of the prior trade mark. Also, the Amendment has strengthened the protection of well-known trade marks and created conditions for more flexible approaches towards the proof of acquired distinctiveness of a trade mark.
Industrial designs
A completely new Act on Industrial Designs (No 207/2000 Coll) has been adopted with effect from October 1 2000. The new law is fully in compliance with the European directive No 98/71/EC. It gives applicants broader opportunities to obtain protection for the design of their products, including those so far excluded from protection, eg compound products, parts of products, graphic symbols, or hand-made products. Also the period of protection of industrial designs is now longer, the maximum period of protection being 25 years.
Copyright
Copyright protection is now provided by a completely new Copyright Act (No 121/2000 Coll) replacing the previous Copyright Act of 1965. The new Act emphasizes proprietary aspects of copyright, provides for more specific conditions of protection of computer software and databases and implements European directives in this area, in particular the directives No 91/250, 92/100, 93/83, 93/98 and 96/9/EC.
The most important changes the Czech copyright law has undergone concern the duration of copyright protection, copyright owners' proprietary rights and their limitations, copyright contracts, the author's compensation for the unauthorized use of a work and for copying the work for personal use, the scope of protection resulting from copyright in computer software, and collective administration of copyright.
The duration of copyright has been prolonged from 50 to 70 years after the author's death. The prolongation has been introduced with retroactive effects, meaning that even if the period of protection of 50 years had already lapsed when the new law came into force, the protection is in principle restored for the remaining period.
Copyright can be licensed by the author to other persons who may use the work in the way specified in the licence agreement. The licence agreement can be concluded as exclusive or non-exclusive. Each licence contract must now include the amount of the author's royalties, or how they are to be determined, in order to be valid. The licensee must make use of the licence, unless the parties to the licence agreement have agreed that he does not have the duty to use the subject of the licence. The licence agreement must be concluded in writing if the licence is exclusive.
The new Copyright Act pays special attention to computer programs. Computer programs are granted similar protection as literary works except for thoughts and principles on which the respective computer program is based. In order to be capable of protection, the computer program must be an original work expressed in a perceivable form, which is usually the primary source code (eg in a written text) or in the secondary object code, which is used by the computer itself. Unlike other foreign legal regulations, the new Copyright Act does not contain the definition of computer programs, but computer programs under Czech law contain also the preparatory design materials. As already mentioned above, the new Copyright Act prohibits any third person from making copies of a computer program also for personal use; the law only allows third persons to make a reserve copy. As a result of the new legal regulation of copyright protection of computer programs, most of the computer programs shall enjoy copyright protection unless they lack basic inventive and individual aspects of creativity of their author. This change should facilitate the position of the copyright owner in computer programs in possible legal disputes with infringers.
Competition Law
The law of unfair competition has been modified by Act No 370/2000 Coll, amending the Commercial Code, which has introduced a detailed regulation of comparative advertising. Comparative advertising is now in principle admissible, however, it is subject to a number of limitations, e.g. it may not be deceptive and it should only focus at comparing essential, relevant, verifiable and representative features of products or services.
With effect from July 1 2001, a new Act on the Protection of Economic Competition comes into force. The Act regulates cartels, abuses of dominant position and mergers, as well as proceedings on approval of mergers and cartel agreements and some other proceedings conducted by the Office for Economic Competition. The Act newly provides for a cartel registry and enables the Office for Economic Competition to issue decrees on block exemptions from the ban of cartels.
The Act also contains a special provision on contracts on assignment or licensing of intellectual property rights by virtue of which such contracts are in principle admissible unless the limitations imposed upon the licensees or assignees exceed the scope of statutory protection of IP rights. Clauses on appropriate usage of the industrial property and on exchange of experience or providing cross-licences are also admissible.
Cermák Horejs Myslil
Národní 32
11000 Prague 1
Czech Republic
Tel: (420 2) 96 167 111
Fax: (420 2) 2494 6724
E-mail: intelprop@apk.cz
Internet: www.apk.cz
