Patents Act · 2023 Revised Edition · Part · Infringement of Patents
64. Meaning of infringement
Official textFrom Attorney General's Chambers, unchanged
Subject to the provisions of this Act, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in Brunei Darussalam in relation to the invention without the consent of the proprietor of the patent —
where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise;
where the invention is a process, he uses the process or he offers it for use in Brunei Darussalam when he knows, or it is obvious to a reasonable person in the circumstances, that its use without the consent of the proprietor would be an infringement of the patent;
where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise.
An act which, apart from this subsection, would constitute an infringement of a patent for an invention shall not be so if —
patent
“patent” means a patent under this Act and includes a patent in force by virtue of section 114(4);
it is done privately and for purposes which are not commercial;
it is done for experimental purposes relating to the subject matter of the invention;
it consists of the extemporaneous preparation of a medicine for an individual in accordance with a prescription given by a registered medical or dental practitioner or consists of dealing with a medicine so prepared;
it consists of the use of a product or process in the body or operation of a relevant aircraft, hovercraft or vehicle which has temporarily or accidentally entered or is crossing Brunei Darussalam
Patents
(including the air space above it and its territorial waters) or the use of accessories for such a relevant aircraft, hovercraft or vehicle;
it consists of the use, exclusively for the needs of a relevant ship, of a product or process in the body of the ship or in its machinery, tackle, apparatus or other accessories, in a case where the ship has temporarily or accidentally entered the territorial waters of
Brunei Darussalam;
subject to subsections (3) and (6), it consists of the import, use or disposal of, or the offer to dispose of, any patented product or any product obtained by means of a patented process or to which a patented process has been applied, which is produced by or with the consent (conditional or otherwise) of the proprietor of the patent or any person licensed by him, and for this purpose “patent” includes a patent granted in any country outside Brunei Darussalam in respect of the same or substantially the same invention as that for which a patent is granted under this Act and “patented product”, “patented process” and “licensed” shall be construed accordingly;
it consists of the doing of any thing set out in subsection (1)
in relation to the subject matter of the patent to support any application for marketing approval for a pharmaceutical product, provided that any thing produced to support the application is not —
made, used or sold in Brunei Darussalam; or
exported outside Brunei Darussalam, other than for purposes related to meeting the requirements for marketing approval for that pharmaceutical product; or
subject to subsection (6), it consists of the import, disposal or offer to dispose of a patented pharmaceutical product for use by or on a specific patient in Brunei Darussalam, or the use of that product by or on that patient, where —
that product is required for use by or on that patient;
the relevant authority has granted approval specifically for the import of that product for use by or on that patient; and
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that product was produced by or with the consent
(conditional or otherwise) of the proprietor of the patent or any person licensed by him (and for this purpose “patent” includes a patent granted in any country outside Brunei Darussalam in respect of the same or substantially the same product and “licensed”
shall be construed accordingly).
Subsection (2)(f) does not apply to the import of any patented pharmaceutical product by any person (referred to in this subsection and subsection (4) as the importer) if —
pharmaceutical product
“pharmaceutical product” means a medicinal product which is a substance used wholly or mainly by being administered to a human being for the purpose of treating or preventing disease, but does not include — (a) any substance which is used solely — (i) for diagnosis or testing; or (ii) as a device or mechanism, or an instrument, apparatus or appliance; or (b) any substance or class of substances specified in paragraph 2 or 3 of the Schedule;
the product has not previously been sold or distributed in
Brunei Darussalam by or with the consent (conditional or otherwise)
of the proprietor of the patent or any person licensed by the proprietor of the patent to sell or distribute the product in Brunei
Darussalam;
the import of the product by the importer would result in the product being distributed in breach of a contract between —
the proprietor of the patent; and
any person licensed by the proprietor of the patent to distribute the product outside Brunei Darussalam; and
the importer has actual or constructive knowledge of the matters referred to in paragraph (b).
For the purposes of subsection (3), where the importer has received a written notice containing the prescribed particulars, he is deemed to have constructive knowledge of the matters referred to in subsection (3)(b).
For the avoidance of doubt, in subsection (3), “patent” does not include a patent granted in any country outside Brunei Darussalam in respect of the same or substantially the same product and “licensed” shall be construed accordingly.
country
“country” includes — (a) a colony, protectorate or territory subject to the authority or under the suzerainty of another country; or (b) a territory administered by another country under the trusteeship of the United Nations;
Subsection (2)(f) and (h) does not apply to the import or sale of, or the offer to sell, any relevant health product produced for export to any country, other than Brunei Darussalam, which is an eligible importing member of the World Trade Organisation.
relevant health product
“relevant health product” means a patented invention which is a product referred to in — (a) paragraph 1(a) of the Doha Declaration Implementation Decision; or (b) paragraph 1(a) of the Annex to the TRIPS Agreement;
Patents
In this section —
“eligible importing member”, in relation to the World Trade
Organisation, means a member of the World Trade Organisation which —
is a least-developed country; or
has given the Council for TRIPS the notification referred to in —
paragraph l(b)
of the
Doha
Declaration
Implementation Decision; or
paragraph l(b) of the Annex to the TRIPS
Agreement;
“relevant ship” and “relevant aircraft, hovercraft or vehicle”
mean, respectively, a ship and an aircraft, a hovercraft or a vehicle registered in, or belonging to, any country, other than
Brunei Darussalam, which is —
a party to the Paris Convention; or
a member of the World Trade Organisation.
Terms defined in s 2
Council for TRIPS
Defined · s 2“Council for TRIPS” means the Council for Trade-Related Aspects of Intellectual Property Rights established under the TRIPS Agreement;
country
Defined · s 2“country” includes — (a) a colony, protectorate or territory subject to the authority or under the suzerainty of another country; or (b) a territory administered by another country under the trusteeship of the United Nations;
Doha Declaration Implementation Decision
Defined · s 2“Doha Declaration Implementation Decision” means the Decision adopted by the General Council of the World Trade Organisation on 30th August 2003 on the implementation of paragraph 6 of the Declaration on the TRIPS Agreement and Public Health adopted in Doha on 14th November 2001;
marketing approval
Defined · s 2“marketing approval”, in relation to a pharmaceutical product, means a product licence under section 10 of the Medicines Order, 2007;
Paris Convention
Defined · s 2“Paris Convention” means the Convention for the Protection of Industrial Property signed at Paris on 20th March 1883;
patent
Defined · s 2“patent” means a patent under this Act and includes a patent in force by virtue of section 114(4);
patented product
Defined · s 2“patented product” means a product which is a patented invention or, in relation to a patented process, a product obtained directly by means of the process or to which the process has been applied;
pharmaceutical product
Defined · s 2“pharmaceutical product” means a medicinal product which is a substance used wholly or mainly by being administered to a human being for the purpose of treating or preventing disease, but does not include — (a) any substance which is used solely — (i) for diagnosis or testing; or (ii) as a device or mechanism, or an instrument, apparatus or appliance; or (b) any substance or class of substances specified in paragraph 2 or 3 of the Schedule;
relevant authority
Defined · s 2“relevant authority”, in relation to a pharmaceutical product, means the Brunei Darussalam Medicines Control Authority;
relevant health product
Defined · s 2“relevant health product” means a patented invention which is a product referred to in — (a) paragraph 1(a) of the Doha Declaration Implementation Decision; or (b) paragraph 1(a) of the Annex to the TRIPS Agreement;
TRIPS Agreement
Defined · s 2“TRIPS Agreement” means the Agreement on Trade-Related Aspects of Intellectual Property Rights, set out in Annex 1C to the WTO Agreement, as revised or amended from time to time;
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Revocation of Patents and Validity Proceedings
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Amendments of Patents and Applications
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International Applications for Patents
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Legal Proceedings
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Offences
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Patent Agents
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