Cambodia’s early-stage patent protection system
Cambodia’s patent protection system is still in its early stages. In fact, Cambodia’s first ever Patent for Invention was awarded as recently as 2015.
Through joint cooperation, and both bilateral and regional agreements with foreign patent offices and organizations, the country has rapidly developed its intellectual property infrastructures to promote patent protection. This has also aided the country in its attempts to accommodate a greater inflow of foreign investments.
On 1 March 2018, an Agreement on the Validation of European Patents between the government of the Kingdom of Cambodia and the European Patent Organization (EPO) took effect in Cambodia. This enables users of the European patent system to validate European patent applications in Cambodia, where after fulfilment of requirements on validation, they will confer essentially the same protection as granted by the EPO for the member states of the European Patent Organization.
The validation in Cambodia of such patents occurs at the applicant’s request, but is available only to European patent applications including international applications designating EP filed on or after 1 March 2018. It is not available for applications filed prior to this date, or any European patents resulting from such applications.
Least Developed Countries waiver
It is important to note, however, that patent protection with respect to pharmaceutical inventions are still excluded from protection in Cambodia as the country is still benefiting from a waiver under the World Trade Organization (WTO) allowing Least Developed Countries (LDCs) to deny such protection until 2033. This is subject to further possible extensions of the waiver.
The waiver also applies to European patents providing protection for pharmaceutical invention seeking validation in Cambodia.
To get around this obstacle, applicants can make use of Article 70.8 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which allows the applicant to file patent applications for pharmaceutical products, despite the fact that they are excluded under the WTO waiver. However, such patent applications will not be examined as to their patentability until the waiver formally ceases to exist. At this point protection may be granted for the remainder of the available, 20 year patent term – calculated based on the date of filing.
How does validation work?
To effect the validation of European patent applications the applicant shall pay a validation fee of EUR180 to the EPO within six months from the date on which the European Patent Bulletin mentions the publication of the corresponding European search report, or, when applicable, within a specific grace period. Further, subject to additional fees, the applicant shall also submit a copy of a Khmer translation of the European granted claims, and is required to appoint a local patent agent for communication address purposes, as well as the handling of annuity payments.
Prateep Naboriboon, Senior Associate, ZICO IP Thailand