Patents
Albania, hitherto the only European country without a patent law, enacted provisions for the protection of inventions by means of patents and utility models. Protection of rights for foreigners is confined to those whose countries are parties to international treaties of which Albania is a member or whose countries grant rights to Albanian nationals on a reciprocal basis. Since Albania has not yet joined the Paris Convention, protection for foreigners remains problematic and will at this time be confined to applicants from countries that provide rights for Albanians.The major features of the law relating to patents for inventions and utility models are as follows:
1) Patentable inventions must be new, involve an inventive step, and have
industrial applicability.
2) The definition of patentable subject matter is essentially the same as that of the European Patent Convention, but also prohibits the grant of patents for nuclear transformations for military purposes.
3) The novelty standard is a universal one covering all disclosures by way of publication, use, demonstration or any other means before the priority date. The prior art further includes the contents of all published prior Albanian applications and such applications may be used not only as a basis for challenging the novelty of a later-filed application (as is the case in the European Patent Convention) but also as a basis for an obviousness attack on a later-filed application (this feature being dissimilar from that in the European Patent Convention). The new law further departs from the European Patent Convention by providing a grace period of 12 months before the priority date of the application for disclosures by the inventor, by any person claiming title from the inventor, by a Patent Office or by any other third party which has obtained the published information either directly or indirectly from the inventor.
4) The term of protection for a patent will be 20 years from filing, subject to the payment of annual fees on the anniversary of the filing date. The duration of patents relating to pharmaceutical products may be extended for a period of 5 years after the normal 20-year term.
5) Albanian patent applications will be published 18 months from the date of filing or, if priority is claimed, from the priority date, unless the applicant requests that publication occur earlier than this date. Once publication has occurred, the applicant will have the same rights as would be given if the patent itself had been published. In the case of an infringement action brought on the basis of a published application, however, the court has jurisdiction to stay consideration of the action until such time as the patent has been granted. The Patent Office will apparently only examine as to matters of form and as to whether the application relates to unpatentable subject matter. Applications will not be examined as to novelty or obviousness. Consequently, a patent is issued without any guarantee as to its validity.
6) Post-grant opposition to a patent is provided for and the opposition must be filed within 9 months after the grant of the patent.
7) The law provides for remedies in respect of direct or induced infringement and also extends protection to the direct product of any patented process. Certain limitations on the rights of the patentee are, however, written into the statute including an express prohibition against the patentee taking action for infringement in respect of any product that was marketed by the patentee or with the patentee's consent, use for private purposes, use for experimental purposes in the field of scientific research and extemporaneous preparation of medications in a pharmacy or by a doctor according to a specific prescription.
8) Compulsory licensing is permitted under normal Paris Convention terms if the invention has not been used or put into operation in Albania. Such compulsory licensing is subject to payment of reasonable royalties to the patent owner. There are no provisions for dependent patent compulsory licensing.
9) Any government use of the invention without the patentee's consent requires "sufficient payment" to the patentee.
2) The definition of patentable subject matter is essentially the same as that of the European Patent Convention, but also prohibits the grant of patents for nuclear transformations for military purposes.
3) The novelty standard is a universal one covering all disclosures by way of publication, use, demonstration or any other means before the priority date. The prior art further includes the contents of all published prior Albanian applications and such applications may be used not only as a basis for challenging the novelty of a later-filed application (as is the case in the European Patent Convention) but also as a basis for an obviousness attack on a later-filed application (this feature being dissimilar from that in the European Patent Convention). The new law further departs from the European Patent Convention by providing a grace period of 12 months before the priority date of the application for disclosures by the inventor, by any person claiming title from the inventor, by a Patent Office or by any other third party which has obtained the published information either directly or indirectly from the inventor.
4) The term of protection for a patent will be 20 years from filing, subject to the payment of annual fees on the anniversary of the filing date. The duration of patents relating to pharmaceutical products may be extended for a period of 5 years after the normal 20-year term.
5) Albanian patent applications will be published 18 months from the date of filing or, if priority is claimed, from the priority date, unless the applicant requests that publication occur earlier than this date. Once publication has occurred, the applicant will have the same rights as would be given if the patent itself had been published. In the case of an infringement action brought on the basis of a published application, however, the court has jurisdiction to stay consideration of the action until such time as the patent has been granted. The Patent Office will apparently only examine as to matters of form and as to whether the application relates to unpatentable subject matter. Applications will not be examined as to novelty or obviousness. Consequently, a patent is issued without any guarantee as to its validity.
6) Post-grant opposition to a patent is provided for and the opposition must be filed within 9 months after the grant of the patent.
7) The law provides for remedies in respect of direct or induced infringement and also extends protection to the direct product of any patented process. Certain limitations on the rights of the patentee are, however, written into the statute including an express prohibition against the patentee taking action for infringement in respect of any product that was marketed by the patentee or with the patentee's consent, use for private purposes, use for experimental purposes in the field of scientific research and extemporaneous preparation of medications in a pharmacy or by a doctor according to a specific prescription.
8) Compulsory licensing is permitted under normal Paris Convention terms if the invention has not been used or put into operation in Albania. Such compulsory licensing is subject to payment of reasonable royalties to the patent owner. There are no provisions for dependent patent compulsory licensing.
9) Any government use of the invention without the patentee's consent requires "sufficient payment" to the patentee.
The law provides for Albania's adherence to the Patent Cooperation Treaty and for the extension of European patents to Albania, although so far neither of these provisions is in effect.
Utility Models
The provisions relating to utility models are generally similar to those relating to patents, except that in this case there is no requirement for an inventive step and the term of utility model protection is limited to 10 years from the filing date.Designs
The new industrial property law also provides protection for designs which are "the characteristics of the external form of a product that are not dictated solely by technical function and which give it a particular appearance". For protection such designs must be new and not "very similar" to a design which has been published or used publicly anywhere in the world before the filing date or validly claimed priority date. The term of protection of a design is a period of 5 years from its filing date. This term is, however, renewable for two further periods of 5 years, thus providing for a total possible duration of protection of 15 years from filing.Trademarks
1) Registrable marks may include any sign that is capable of distinguishing
the goods or services of one party from those of another and that can be
represented graphically. Service marks and collective marks are registrable.
2) Applicants eligible to claim priority under the Paris Convention may do so in Albania, even though it is not yet a party to this Convention.
3) Marks may not be registered if they are the subject of copyright protection, unless the copyright owner has consented to registration.
4) Evidence of use of a mark may be considered in determining whether the mark is distinctive.
5) Marks may not be registered if they conflict with, inter alia, (a) identical or similar marks that have previously been applied for or registered by third parties in respect of identical or similar goods or services; (b) an identical or similar mark registered in respect of any goods or services, provided that the registered mark is well-known and use of the conflicting mark would damage the distinctive character and reputation of the well-known mark; and (c) marks which are well-known as defined in Article 6bis of the Paris Convention.
6) Applications will be examined for inherent registrability.
7) Owners of conflicting marks may file a cancellation action in court against an offending registration.
8) Registrations are granted for a period of 10 years from the filing date and may be renewed for further periods of 10 years.
9) Licensing is recognized, provided that the licenses contain effective quality control provisions. Licenses must be recorded with the Patent Office to be enforceable in the courts.
10) Registrations protecting marks which have not been used for any period of 5 years, without justification, may be vulnerable to cancellation by an interested party.
11) Owners of registered marks which are well-known may prevent the use of their marks on any goods or services if such use would damage the distinctive character and reputation of the mark.
12) Trademark owners may bring actions for trademark infringement within 5 years of the date of the infringement. Injunctive relief, damages and fines are available as remedies.
13) Designations of origin are registrable in the Registry of protected designations of origin and may also be protected by international agreement.
2) Applicants eligible to claim priority under the Paris Convention may do so in Albania, even though it is not yet a party to this Convention.
3) Marks may not be registered if they are the subject of copyright protection, unless the copyright owner has consented to registration.
4) Evidence of use of a mark may be considered in determining whether the mark is distinctive.
5) Marks may not be registered if they conflict with, inter alia, (a) identical or similar marks that have previously been applied for or registered by third parties in respect of identical or similar goods or services; (b) an identical or similar mark registered in respect of any goods or services, provided that the registered mark is well-known and use of the conflicting mark would damage the distinctive character and reputation of the well-known mark; and (c) marks which are well-known as defined in Article 6bis of the Paris Convention.
6) Applications will be examined for inherent registrability.
7) Owners of conflicting marks may file a cancellation action in court against an offending registration.
8) Registrations are granted for a period of 10 years from the filing date and may be renewed for further periods of 10 years.
9) Licensing is recognized, provided that the licenses contain effective quality control provisions. Licenses must be recorded with the Patent Office to be enforceable in the courts.
10) Registrations protecting marks which have not been used for any period of 5 years, without justification, may be vulnerable to cancellation by an interested party.
11) Owners of registered marks which are well-known may prevent the use of their marks on any goods or services if such use would damage the distinctive character and reputation of the mark.
12) Trademark owners may bring actions for trademark infringement within 5 years of the date of the infringement. Injunctive relief, damages and fines are available as remedies.
13) Designations of origin are registrable in the Registry of protected designations of origin and may also be protected by international agreement.
November 1994 Index