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proceeding [Global Index]
ARTICLE-34: Process Patents: Burden of Proof [go to this ARTICLE]
... 1. For the
purposes of civil proceedings in respect of the infringement of the
rights of the owner referred to in paragraph 1(b) of Article 28,
if the subject matter of a patent is a process for obtaining a
product, the judicial authorities shall have the authority to order
the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that
any identical product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be deemed to
have been obtained by the patented process: ...
... 4. A
Member whose nationals or domiciliaries are subject to proceedings in
another Member concerning alleged violation of that other Member's
laws and regulations on the subject matter of this Section shall,
upon request, be granted an opportunity for consultations by the
other Member under the same conditions as those foreseen in paragraph
3.
...
... 3. Decisions
on the merits of a case shall preferably be in writing and reasoned.
They shall be made available at least to the parties to the
proceeding without undue delay. Decisions on the merits of a case
shall be based only on evidence in respect of which parties were
offered the opportunity to be heard. ...
... 4. Parties
to a proceeding shall have an opportunity for review by a judicial
authority of final administrative decisions and, subject to
jurisdictional provisions in a Member's law concerning the importance
of a case, of at least the legal aspects of initial judicial
decisions on the merits of a case. However, there shall be no
obligation to provide an opportunity for review of acquittals in
criminal cases. ...
ARTICLE-43: Evidence [go to this ARTICLE]
... 2. In
cases in which a party to a proceeding voluntarily and without good
reason refuses access to, or otherwise does not provide necessary
information within a reasonable period, or significantly impedes a
procedure relating to an enforcement action, a Member may accord
judicial authorities the authority to make preliminary and final
determinations, affirmative or negative, on the basis of the
information presented to them, including the complaint or the
allegation presented by the party adversely affected by the denial of
access to information, subject to providing the parties an
opportunity to be heard on the allegations or evidence. ...
... 6. Without
prejudice to paragraph 4, provisional measures taken on the basis of
paragraphs 1 and 2 shall, upon request by the defendant, be
revoked or otherwise cease to have effect, if proceedings leading to
a decision on the merits of the case are not initiated within a
reasonable period, to be determined by the judicial authority
ordering the measures where a Member's law so permits or, in the
absence of such a determination, not to exceed 20 working days or 31
calendar days, whichever is the longer. ...
ARTICLE-55: Duration of Suspension [go to this ARTICLE]
... If,
within a period not exceeding 10 working days after the applicant has
been served notice of the suspension, the customs authorities have
not been informed that proceedings leading to a decision on the
merits of the case have been initiated by a party other than the
defendant, or that the duly empowered authority has taken provisional
measures prolonging the suspension of the release of the goods, the
goods shall be released, provided that all other conditions for
importation or exportation have been complied with; in appropriate
cases, this time-limit may be extended by another 10 working days.
If proceedings leading to a decision on the merits of the case have
been initiated, a review, including a right to be heard, shall take
place upon request of the defendant with a view to deciding, within a
reasonable period, whether these measures shall be modified, revoked
or confirmed. Notwithstanding the above, where the suspension of the
release of goods is carried out or continued in accordance with a
provisional judicial measure, the provisions of paragraph 6 of
Article 50 shall apply. ...
... If,
within a period not exceeding 10 working days after the applicant has
been served notice of the suspension, the customs authorities have
not been informed that proceedings leading to a decision on the
merits of the case have been initiated by a party other than the
defendant, or that the duly empowered authority has taken provisional
measures prolonging the suspension of the release of the goods, the
goods shall be released, provided that all other conditions for
importation or exportation have been complied with; in appropriate
cases, this time-limit may be extended by another 10 working days.
If proceedings leading to a decision on the merits of the case have
been initiated, a review, including a right to be heard, shall take
place upon request of the defendant with a view to deciding, within a
reasonable period, whether these measures shall be modified, revoked
or confirmed. Notwithstanding the above, where the suspension of the
release of goods is carried out or continued in accordance with a
provisional judicial measure, the provisions of paragraph 6 of
Article 50 shall apply. ...