Manual_Prosec_IP.pdf
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TABLE OF CONTENTS Page CHAPTER I
Introduction
………………………………………………………………………………………
1
International Commitments on Intellectual Property Right ……………………………………………………………………
2
IP Laws and IP-related laws in the Philippines ………………………………………
3
CHAPTER II Establishing Criminal Liability ………………………………………………………….….
7
Elements and Evidence of Specific Offenses …………………………………………...
8
Republic Act No. 8293 Intellectual Property Code of the Philippines ………………………………..…..
8
Infringement of Trademarks Section 155.1 ………………………………………………………...……………...….. Section 155.2 …………………………………………………………………………….
8 8
Unfair Competition Section 168.2 ……………………………………………………...………………...….. Section 168.3(a) …………………………………………………………………………. Section 168.3(b) ………………………………………………………………………….
9 9 9
False Designation of Origin; False Description or Representation Section 169.1(a) ….…..……………………………………………………………...….. Section 169.1(b) ………………………………………….……………………………….
10 10
Copyright Section 177 ………..…..………………………………………………….…………...….. Section 217.1 (Infringement) ……………………………………………………….. Section 217.3 (Possession) …….…………………………………………….……….
11 11 11
Republic Act No. 3720 The Food, Drug and Cosmetic Act, as amended by Republic Act No. 9711 …………………………………………...…….. Section 11(a) .……………………………………………………..…………………...….. Section 11(b) .…………………………………………...…………………………………. Section 11(c) .…………………………………………...…………………………………. Section 11(d) .…………………………………………...…………………………………. Section 11(e) .…………………………………………...…………………………………. Section 11(f) .………………………………….………...……………………………….... Section 11(g) .…………………………………………...…………………………………. Section 11(h) .………………………………………….......................................….. Section 11(i) .………….………………………………...…………………………………. Section 11(j) .…………….……………………………...…………………………………. Section 11(k) .…………………………………………...…………………………………. Section 11(l) .…………….……………………………...………………………………....
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12 12 12 13 13 13 13 13 14 14 14 14 15
Republic Act No. 8203 The Special Law on Counterfeit Drugs ………..………………………………..…….. Section 4(a) ..………………………………………….......................................….. Section 4(b) .……….………………………………….......................................….. Section 4(c) ...…………………………………………...……………………………….... Section 4(d) .……………………….…………………………………………………..…..
15 15 16 17 17
Republic Act No. 9239 The Optical Media Act of 2003 …………………..……………………………………….. Section 19(a)(1) .….………………………………….........................................….. Section 19(a)(2) .….…………………………………...………………………………….. Section 19(a)(3) .….…………………………………...………………………………..... Section 19(a)(4) .….…………………………………...………………………………….. Section 19(a)(5) .….…………………………………...………………………………….. Section 19(a)(6) .….…………………………………...………………………………….. Section 19(b)(1) .….…………………………………...………………………………….. Section 19(b)(2) .….…………………………………........................................….. Section 19(b)(3) .….…………………………………...………………………………….. Section 19(b)[a-1] ..…………………………………...………………………………….. Section 19(b)[a-2] ..…………………………………........................................…..
18 18 18 19 19 19 20 20 21 21 21 22
Republic Act No. 10088 Anti-Camcording Act of 2010 ………………………………….……….………………….. 23 Unauthorized use of Audiovisual Recording Device Section 3(a) …………..………………………………...…………………………………... 23 Section 3(b) …………..………………………………...…………………………………... 23 Other Unauthorized Acts Section 3(c) …………..……………………………………..…………………………...….. 24 Section 4 …………..…..………………………………...…………………………………… 24 Batas Pambansa Blg. 33 as amended by PD 1865 ……………………………………..……….…….…………………. 25 Section 2(a) …………..………………………………...……………………………………. 25 Section 2(b) …………..………………………………...……………………………………. 25 Section 2(c) …….……..………………………………...………………………………….... 25 Section [(b)] (D) ……..……………………………….........................................….. 26 Section [(c)] (E) ……..………………………………...………………………………….... 26 Section [(d)] (F) ……..………………………………...……………………………………. 26 Section [(e)] (G) ……..………………………………...………………………………….... 26 Section (H) ………..…..………………………………...……………………………………. 26 CHAPTER III Law Enforcement in Intellectual Property Cases …………………………………………………………………………………………... 27 Procedure in Filing of Complaint with the PNP-CIDG ……….………………………………………………………………………………………... 27 I.
Case Initiation …………………………………………………………………………….…. Filing of Complaint ………………………………………………………………………... Receipt of Complaint by the CIDG …………………………………………………… Documentary Requirements ………………………………………………………….…
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27 27 27 27
Table of Contents Page Procedure in Filing of Complaint with the PNP-CIDG
II.
Investigation ………………………………………………………………………………... 27 Sworn Statement ………………………………………………………………………..… Identification of Targets ………………………………………………………….……. Surveillance and Test-Buy ……………………………………………..……………… Preparation of Documents ……………………………………………………….……
27 27 27 28
For Search Warrant …………………………………………………………..……… 28 Implementation of Search Warrant and Filing of Cases ………………………………………………………………….... 28 For Buy-Bust ………………………………………………………………………..….. 28
CHAPTER IV Prosecution of Intellectual Property Cases ………………………………………..…………. 30 Department of Justice ……………………………………………………………………. 30 Inquest …………………………………………………………………………………………. 30 Arrest not Properly Effected ……………………………………………….. Arrest Properly Effected …………………………………………………….. Inquest Proper ……………………………………………………………..…… Termination of Inquest proceedings ………………………………..…..
31 31 31 32
Preliminary Investigation …..…………………………………..……………………….. 32 Contents of Complaint …………………………………………….…… 32 Supporting Documents ………………………………………………... 33 Search Warrant …………….…..…………………………………..……………………….. 33 Complaints Filed by the Optical Media Board …………………………………………………….……. 33 Procedure during Preliminary Investigation ………………………………….………………. 33 Jurisdiction Over the Offense ………………………………………………………..…………… 34 Nature of IP Violations ……………………………………………..………………………………… 34 Annexes Sample Information for Unfair Competition ……………………………………. 35 Sample Information for Copyright Infringement ……………………………… 37 Sample Information for violation of RA 10088 ………………………………… 39 IP Checklist Quick Guide ……………………………………………………………….. 41 RA 8293 …………………………………………………………..……………………………. 42 RA 9239 …………………………………………………..……………………………………. 87 RA 8047 ………………………………………………………………………………………… 90 RA 9711 ……………………………………………………….………………………………… 96 RA 9502 ………………………..……………………………………………………………….. 106
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Table of Contents Page Annexes
RA 9168 ………………………………………………………………………………………… 118 RA 9150 ……………………………………………………….………………………………… 128 RA 8792 ………………………..……………………………………………………………….. 133 RA 8203 ………………………………………………………………………………………… 144
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CHAPTER I INTELLECTUAL PROPERTY Intellectual Property (IP) is defined by the World Intellectual Property Organization (WIPO) as creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. IP is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.1 International Commitments on Intellectual Property Rights2 The Republic of the Philippines is a signatory to several international treaties and conventions on intellectual property rights, to wit:
Convention Establishing the World Intellectual Property Organization Paris Convention for the Protection of Industrial Property Budapest Treaty on the International Recognition of the Deposit of Microorganisms for Purposes of Patent Procedure Berne Convention for the Protection of Literary and Artistic Works International Convention for the Protection of Performers, Producers of Phonographs and Broadcasting Organizations Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS Agreement] Cartagena Protocol on Biosafety to the Convention on Biological Diversity International Treaty on Plant Genetic Resources Madrid Protocol Treaty on the Protection of Audiovisual Performances
As early as March 1883 during the Paris Convention, member countries established the so called “Union” for the Protection of Industrial Property such as patents, utility models, industrial designs, service marks, tradenames, indications of source or appellations of origin and the repression of unfair competition. The aforesaid Paris Convention for the Protection of Industrial Property has undergone several revisions at Brussels on December 14, 1900, at Washington on June 2, 1911, at Hague on November 6, 1925, at London on June 2, 1934, and at Lisbon on October 31, 1958. 1 2
http://www.wipo.int/about-ip/en/ WIPO Database of Intellectual Property Legislative Texts
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On July 14, 1967, the WIPO was established and its Articles were signed in Stockholm. The Articles were further amended on September 28, 1979, wherein it incorporates the different conventions such as the Paris Convention for the Protection of Industrial Property of March 20, 1883 including its revisions; Berne Convention for the Protection of Literary and Artistic Works signed on September 9, 1886, including any of its revisions. Article 2 (viii) of the Convention establishing the World Intellectual Property Organization, states that “intellectual property shall include the rights pertaining to: -
Literary, artistic and scientific works, performances of performing artists, phonograms and broadcast,
-
Inventions in all fields of human endeavor,
-
Scientific discoveries,
-
Industrial designs
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Trademarks, service designations,
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Protection against unfair competition and all other rights resulting from intellectual activity, scientific, literary or artistic fields.
marks,
and
commercial
names
and
The Philippines, through the Secretary of Trade and Industry, signed the Uruguay Round Final Act on April 15, 1994. The Senate adopted Senate Resolution No. 97 on December 14, 1994 expressing concurrence in the ratification of the WTO Agreement by the President of the Philippines, who later signed the Instrument of Ratification on December 16, 1994. The constitutionality of the Philippine accession to the WTO Agreement has been settled in the case of Tañada, et. al. vs. Angara, et. al., G.R. No. 118295, May 2, 1997. Moreover, pursuant to its obligations under the conventions for the protection of intellectual property, the Philippines enacted Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines, on June 6, 1997. The law lays down the policies and procedures for a comprehensive approach to combating intellectual property violation. Further, to simplify court proceedings regarding the prosecution of violation of intellectual property rights, the Philippine Supreme Court issued Administrative Matter (A.M.) No. 10-3-10-SC on October 18, 2011 entitled “Rules of Procedure for Intellectual Property Rights Cases”.
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IP Laws in the Philippines The Article XIV, Section 13 of the 1987 Philippine Constitution mandates that the State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property. IP Laws and IP-related Laws enacted by the Legislature 1. Republic Act No. 8047 (Book Publishing Industry Development Act) 2. Republic Act No. 8203 (Special Law on Counterfeit Drugs) 3. Republic Act No. 8293 (Intellectual Property Code of the Philippines) Trademarks: Section 121.1 - “Mark” means any visible sign capable of distinguishing the goods [trademark] or services [service mark] of an enterprise and shall include a stamped or marked container of goods. Trademark refer to a word, name, symbol, emblem, sign or device or any combination thereof adopted and used by a merchant to identify and distinguish from others, his goods of commerce.3 Section 138. - Certificates of Registration – A certificate of registration of a mark shall be prima facie evidence of the validity of the registration, the registrant's ownership of the mark, and of the registrant's exclusive right to use the same in connection with the goods or services and those that are related thereto specified in the certificate. Section 147. - Rights Conferred – 147.1 The owner of the registered mark is conferred the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs or container for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in the likelihood of confusion. In case of the use of an identical sign for identical goods, or services, a likelihood of confusion shall be presumed. Elements of trademark infringement: a. Validity of plaintiff’s mark; b. Plaintiff’s ownership of the mark; 3
Distilleria Washington, Inc. vs. Court of Appeals, 263 SCRA 303.
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c. Use of the mark or its colorable imitation by the alleged infringer results in “likelihood of confusion”.4 Trademark infringement takes place when there is unauthorized use of the registered mark or a colorable imitation thereof in commerce as to cause confusion in the minds of the general consuming public. “Likelihood in confusion” pertains to the similarity of the appearance of the product arising from the adoption of the dominant features of the registered mark, disregarding minor differences. It also refers to the virtual impressions created by the marks in the public mind. Unfair Competition: Unfair competition is broader than trademark infringement and includes passing off goods with or without trademark infringement. Trademark infringement is a form of unfair competition. Trademark infringement constitutes unfair competition when there is not merely likelihood of confusion, but also actual or probable deception on the public because of the general appearance of the goods. There can be trademark infringement without unfair competition as when the infringer discloses on the labels containing the mark that he manufactures the goods, thus preventing the public from being deceived that the goods originate from the trademark owner. Elements of unfair competition: a. Confusing similarity in the general appearance of the goods; b. Intent to deceive the public and defraud a competitor.5 The confusing similarity may or may not result from the similarity in the marks, but may result from other external factors in the packaging or presentation of the goods. The intent to deceive may be inferred from the similarity of the appearance of the goods as offered for sale to the public. There is not merely likelihood of confusion but also actual or probable deception on the public because of the general appearance of the goods.
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McDonald’s Corporation vs. L.C. Big Mak Burger, Inc., 437 SCRA 10. Ibid.
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Penalties for infringement: Section 170. Penalties - Independent of the civil and administrative sanctions imposed by law, a criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty thousand pesos (P 50,000.00) to Two hundred thousand pesos (P200,000.00), shall be imposed to any person who is found guilty of committing acts mentioned in Section 155, Section 168 and Subsection 169.1. (Arts 188 and 189, Revised Penal Code) Copyright: Copyright is a right granted by statute to the authors, writers or producers of original literary and artistic works, audiovisual or cinematographic works, the exclusive privilege to reproduce and make available to the public by placing these reproductions in the market and the right of rental or lending of their works for a limited period. Penalties a. First offense- Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand pesos ( P 50,000.00) to One Hundred Fifty Thousand pesos (P 150,00.00). b. Second offense- Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One Hundred Fifty Thousand pesos (P 150,000.00) to Five Hundred Thousand pesos (P 500,000.00). c. Third and subsequent offenses – Imprisonment of six (6) years and one (1) day to nine years plus a fine ranging from P 500,000.00 to P 1,500,000.00. d. In all cases, subsidiary imprisonment in cases of insolvency. 4. Republic Act No. 8792 (Electronic Commerce Act of 2000) 5. Republic Act No. 9150 (Act Providing for the Protection of Layout Design (Topographies) of Integrated Circuits) 6. Republic Act No. 9168 (Philippine Plant Variety and Protection Act of 2002) 7. Republic Act No. 9239 (The Optical Media Act of 2003) Optical media refers to a storage medium or device in which information, including sounds and/or images, or software code, has been restored, either by mastering and/or 5
replication, which may be accessed and read using a lens scanning mechanism employing a high intensity light source such as a laser or any such other means as may be developed in the future. Again, there is a requirement for licensing and registration with the OMB. 8. Republic Act No. 9502 (An Act Providing for Cheaper and Quality Medicines) 9. Republic Act No. 9711 (An Act Strengthening and Rationalizing the Regulatory Capacity of the Bureau of Food and Drugs) 10. Republic Act No. 10088 (Anti-Camcording Act of 2010) IP Laws issued by the Executive 1. Executive Order No. 735 (Institutionalizing Permanent Units to Promote, Protect and Enforce Intellectual Property Rights (IPR) in Different Law Enforcement and other Agencies under the Coordination of the National Committee on Intellectual Property Rights) 2. Executive Order No. 247 (Prescribing Guidelines and establishing a Regulatory Framework for the Prospecting of Biological and Genetic Resources, their By-Products and Derivatives, for Scientific and Commercial Purposes; and for other Purpose) 3. Executive Order No. 913 (Strengthening the Rule-Making and Adjudicatory Powers of the Minister of Trade and Industry in order to Further Protect Consumers) 4. Presidential Decree No. 1986 (Creating the Movie and Television Review and Classification Board) IP Rule issued by the Judiciary 1. Administrative Matter (A.M.) No. 10-3-10-SC (Rules of Procedure for Intellectual Property Rights Cases) 2. A.M. No. 03-03-03-Sc 2003-06-17 (Consolidation of Intellectual Property Courts With Commercial Courts)
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CHAPTER II ESTABLISHING CRIMINAL LIABILITY The successful prosecution of an intellectual property case in court depends upon the evidence submitted by the law enforcers to the prosecutors. The elements of the crime must be established by the evidence gathered. Evidence is the means, sanctioned by the rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.6 Classes of evidence needed for IPR prosecution: 1. Object (Real) Evidence – is a tangible object that played some actual role in the matter that gave rise to the litigation. Physical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses.7 In IPR prosecution, the item or product claimed to have been the subject of forgery should be presented. 2. Documentary Evidence – Documents as evidence consists of writings containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. For instance, the certificate of registration should be presented to prove the registrant's ownership of the mark; the list/inventory of the counterfeit products confiscated during the seizure operation; certifications issued by the product expert attesting to the fact that the item seized is fake; sworn statements of the operatives who participated in the search & seizure operation. 3. Testimonial Evidence - is the testimony given in court by a witness or the deposition by one who has observed that to which he is testifying.8 4. Expert Evidence – is the testimony of persons who are particularly skilled, or experienced in a particular art, science, trade, business, profession, or vocation, a thorough knowledge of which is not possessed by man in general, in regard to matters connected therewith.9 The product expert is the best witness to present because he/she possesses the special skill or technical knowledge acquired either by actual experience or careful study. 6
Section 1, Rule 128 of the Revised Rules of Court. People vs. Parcilla, 167 SCRA 722.
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Evidence by Justice R.J. Francisco. 20 Am. Jur. 634.
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Elements and Evidence of Specific Offenses Republic Act No. 8293 “Intellectual Property Code of the Philippines”
Specific Offense
Elements
Evidence
Sec. 155.1.
Use in commerce Any reproduction, counterfeit, copy or colorable imitation of a registered mark or the same container or a dominant feature thereof. In connection with the sale, offering for sale, distribution, advertising of any goods or services, including preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or Without the consent of the owner of the registered mark
Affidavit of complainant Affidavit of witnesses Relevant certificates of registrations Official / delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Certification that the products seized are counterfeit. Sample of the genuine product and the counterfeit product. Photographs
Sec155.2
Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof; and Apply the same to labels, signs, prints, packages, wrappers, receptacles, or advertisements;
Affidavit of complainant Affidavit of witnesses Relevant certificates of registrations Official / delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Certification that the products seized are counterfeit. Samples of the genuine product and the counterfeit product. Photographs.
Infringement of Trademarks
Labels, signs, prints, packages are intended to be used for: In commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. Without the consent of the owner of the registered mark.
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Unfair Competition Section 168.2
Any person (Natural or Juridical) Who manufactures, or deals in certain goods, or engages in business, or offers services; Employs deception or any other means contrary to good faith, or commits any acts, calculated to result in; Passing off the goods manufactures by him or in which he deals, or his business, or services for those of the one having established such good will, or who shall produce said result.
Affidavit of complainant Official/delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Certification that the products seized are counterfeit. Affidavits of witnesses Identification of competing products. (Samples of genuine and counterfeit) Certificate of Registration Photographs
Sec. 168.3 (a)
Any person, natural or juridical, who sells his goods and: gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or works thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer other than the actual manufacturer or dealer, or Otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose.
Affidavit of complainant Official/delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Certification that the products seized are counterfeit. Affidavits of witnesses Identification of competing products. (samples of genuine and counterfeit Certificate of Registration. Photographs
Sec. 168.3 (b)
Any person, natural of juridical, who Employs any artifice, or device, or any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or Make any false statement in the course of trade or
Affidavit of complainant Official / delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Certification that the products seized are counterfeit. Affidavits of witnesses Identification of competing
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who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.
products (samples of genuine and counterfeit) Certificate of Registration Photographs
Sec.169.1 (a)
A person, natural or juridical, who uses in commerce; Any word, term, name, symbol or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact; On or in connection with any goods or services, or any container for goods; Which is likely to cause confusion, or mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
Affidavit of complainant. Relevant certificates of registrations Official/delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Certification that the products seized are counterfeit. Affidavits of witnesses Identification of competing products (samples of genuine and counterfeit) Photographs
Sec. 169.1 (b)
A person, natural or juridical, who uses in commerce; Any word, term, name, symbol or device, or any combination thereof, or any false designation of origin, false or misleading description of fact , or false or misleading representation of fact; On or in connection with any goods or services, or any container for goods; in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographical origin of his or her or another person’s goods, services or commercial activities.
Affidavit of complainant. Relevant certificates of registrations Official/delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Certification that the products seized are counterfeit. Affidavits of witnesses Identification of competing products (samples of genuine and counterfeit) Photographs
False Designation of Origin; False Description or Representation
10
Copyright Copyright Section 177. Copyright or economic rights shall consists of the exclusive right to carry out, authorize or prevent the following:
A person has the exclusive right to carry out, authorize, or prevent: Acts of reproduction of the work or substantial portion of the work (177.1) Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work (177.2) First public distribution of the original and each copy of the work by sale or other forms of transfer of ownership (177.3) Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental (177.4) Public display of the original or a copy of the work (177.5) Public performance of the work (177.6) and Other communication to the public of the work (177.7)
Section 217.1. Infringement
Any person, natural or juridical, Infringing any of the right secured provisions of Part IV of this Act, or Aiding or abetting such Infringement
Affidavit evidence of complainant (Section 218) If registered, relevant certificates of registration Official/delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Affidavits of witnesses Identification of the work infringed /counterfeited
Section 217.3. Possession
Any person, natural or juridical, who has in his possession an article; Which he knows, or ought to know, to be an infringing copy of the work; For the purpose of selling, letting for hire, or by way of
Affidavit evidence of complainant (Section 218) If registered, relevant certificates of registration Official/delivery receipts during test-buy operations, if any Application for Search Warrant
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trade, offering or exposing for sale, or hire, the article; Distributing the article for purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or Trade exhibit of the article in public at the time when copyright subsists in the work
Search Warrant Detailed inventory receipt Affidavits of witnesses Identification of the work infringed/ counterfeited.
Republic Act No. 3720 “The Food, Drug and Cosmetic Act, as amended by RA No. 9711”
Specific Offense
Elements
Evidence needed
Section 11 (a)
The manufacture, importation, exportation, sale, offering for sale, distribution, transfer, non-consumer use, promotion, advertising, or sponsorship of any health product that is adulterated, unregistered or misbranded.
Valid FDA License to Operate (LTO) Laboratory analysis from FDA recognized laboratories Valid certificate of product registration (CPR) Certificate from FDA on registration and labeling compliance Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
Section 11 (b)
The adulteration or misbranding of any health product
Valid FDA License to Operate (LTO) Laboratory analysis from FDA recognized laboratories Valid certificate of product registration (CPR) Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
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Section 11 (c)
The refusal to permit entry or inspection as authorized by Section 27 hereof or to allow samples to be collected.
Section 11 (d)
The giving of a guaranty or undertaking referred to in Section twelve (b) hereof which guaranty or undertaking is false, except by a person who relied upon a guaranty or undertaking to the same effect, signed by, and containing the name and address of the person or entity from whom he received in good faith the health products or the giving of a guaranty or undertaking referred to in Section twelve (b) which guaranty or undertaking is false.
Section 11 (e)
Forging, counterfeiting, simulating, or falsely representing or without proper authority using any mark, stamp, tag label, or other identification device authorized or required by regulations promulgated under the provisions of this Act.
Section 11 (f)
The using by any person to his own advantage, or revealing, other than to the Secretary or officers or employees of the Department or to the courts when relevant in any judicial proceeding under this Act, any information acquired under authority of Section nine, or concerning any method or process which as a trade secret is entitled to protection.
Section 11 (g)
The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to health products if such act is done while such article is held for sale (whether or not the first sale) and results 13
Inspection report
Valid FDA License to Operate (LTO) Valid certificate of product registration (CPR) Certificate from FDA on registration and labeling compliance Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
Valid FDA License to Operate (LTO) Valid certificate of product registration (CPR) Certificate from FDA on registration and labeling compliance Inventory of seized products
in such article being adulterated or misbranded Provided, That a retailer may sell in smaller quantities, subject to guidelines issued by the FDA.
Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
Section 11 (h)
The use, on the labeling of any drug or in any advertising relating to such drug, of any representation or suggestion that an application with respect to such drug is effective under Section twenty-one hereof, or that such drug complies with the provisions of such section.
Valid FDA License to Operate (LTO) Valid certificate of product registration (CPR) Certificate from FDA on registration and labeling compliance Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
Section 11 (i)
The use, in the labeling advertising or other sales promotion of any reference to any report or analysis furnished in compliance with Section twenty-six hereof.
Copy of the report of laboratory analysis Valid certificate of product registration (CPR) Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
Section 11 (j)
The manufacture, importation, exportation, sale, offering for sale, distribution, transfer, nonconsumer use, promotion, advertisement, or sponsorship of any health product which, although requiring registration, is not registered. with the FDA pursuant to this Act.
Valid FDA License to Operate (LTO) Valid certificate of product registration (CPR) Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
Section 11 (k)
The manufacture, importation, exportation, sale, offering for sale, distribution, transfer, or retail of any drug, device or invitro diagnostic reagent; the manufacture, importation, exportation, transfer or distribution of any food, cosmetic or household/urban hazardous substance; or the
Valid FDA License to Operate (LTO)
14
operation of a radiation or pest control establishment by any natural or juridical person without the license to operate from the FDA required under this Act. Section 11 (l)
The sale, offering for sale, importation, exportation, distribution or transfer of any health product beyond its expiration or expiry date, if applicable.
FDA certificate on labeling compliance
R.A. No. 8203 “The Special Law on Counterfeit Drugs” Specific Offense Section 4 (a)
Elements
Evidence
The manufacture, sale, or offering for sale, donation, distribution, trafficking, brokering, exportation, or importation or possession of counterfeit drugs as defined in Section 3 hereof not otherwise covered by Republic Act No. 3720, as amended. The presence or availability of such counterfeit drugs within the premises of any entity engaged in the sale, manufacture or distribution of drugs and/or pharmaceutical products or in a private residence, or in public or private vehicle, or in the premises not covered by a valid license to operate from the Bureau, shall constitute a prima facie evidence of violation of this Act: Provided, however, That this presumption shall not apply to the legitimate owners of trademarks, trade names or other identifying marks, or the legitimate or authorized representatives or agents of such owners who have in their possession counterfeit drugs which bear the trademarks, trade names or marks if they can show the sales invoices or
Report of laboratory analysis (from FDA recognized laboratories Valid LTO Valid CPR Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
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official receipts evidencing their purchase from a drugstore, manufacturer or distributor suspected by them of dealing in counterfeit drugs involving the trademarks, trade names and other similar identifying marks registered in their names: Provided, further, That such counterfeit products shall be reported and immediately turned over to the Bureau: Provided, finally, That compliance with the preceding provision shall be made within a reasonable period from the date of purchase of such counterfeit drugs as indicated in the sales invoice, official receipt, or other similar documents abovementioned to the time the counterfeit drugs are reported and turned over to the Bureau. Section 4 (b)
Possession of any such counterfeit drugs. However, any person found in possession of counterfeit drugs, in violation of this subsection, shall be exempted from liability under the provisions of this Act after: 1) presentation of sales invoices, official receipts or other legally acceptable documents evidencing his purchase thereof from a drugstore, distributor, manufacturer, hospital pharmacy or dispensary; or any other person or place duly licensed to sell and/or dispense drugs or medicines and indicating therein the batch and lot numbers, as well as the expiry dates of such drugs; or 2) presentation of certificates and other documents evidencing the importation or exportation of the counterfeit drugs found in his possession as required by existing laws, including those documents required in the preceding paragraph covering the commercial transactions involving counterfeit drugs. In both cases, the subject counterfeit drugs must not on their face appear to be as such, or do not bear any marking or 16
Report of laboratory analysis (from FDA recognized laboratories) Valid LTO Valid CPR Sales invoices or delivery receipts or official receipts Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
any patently unusual characteristic sufficient to arouse the suspicion of a reasonable and prudent person that such drugs are counterfeit. Furthermore, the amount or volume of counterfeit drugs held is such that it does not negate or is inconsistent with the averment that the same are for personal use, notwithstanding the presentation by the possessor of medical records and other similar documents accompanying and justifying the use of such drugs; Section 4(c)
Forging, counterfeiting, simulating or falsely representing, or without proper authority, using any mark, stamp, tag, label or other identification mark or device authorized or required by Republic Act No. 3720, as amended, and/or the regulations promulgated under this Act;
Report of laboratory analysis (from FDA recognized laboratories) Valid LTO Valid CPR Sales invoices or delivery receipts or official receipts Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
Section 4(d)
Photocopying, duplicating, altering, printing, transferring, obliterating or removing the approved label or any part thereof, lawfully belonging to another person, for the purpose of using such label or a part thereof on any counterfeit drug: Provided, That if the person who committed any of the acts enumerated in this paragraph and the person who used the labels produced thereby are not one and the same person and the former had knowledge of the purpose for which the labels are intended, the former shall also be liable under this Act notwithstanding the failure of the latter to achieve the intended purposes
Report of laboratory analysis (from FDA recognized laboratories) Valid LTO Valid CPR Sales invoices or delivery receipts or official receipts Inventory of seized products Application and copy of search warrant Affidavits Identification / Samples of unauthorized products Photographs
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Republic Act No. 9239 “Optical Media Act of 2003” Specific Offense
Elements
Evidence
Section 19 (a)(1)
any person, natural or juridical who shall engage in the importation, acquisition, sale or distribution of, or possess or operate manufacturing equipment, parts and accessories without the necessary license from the OMB
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs
Section 19 (a)(2)
any person, natural, or juridical who shall engage in the mastering, manufacture, replication, importation or exportation of optical media without the necessary license from OMB
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs
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Section 19 (a)(3)
any person (natural, or juridical), or through another cause the mastering, manufacture or replication of any intellectual property of optical media intended for commercial profit or pecuniary gain without the consent of the owner thereof
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs
Section 19 (a)(4)
any person, natural or juridical who shall engage in mastering, manufacture, or replication of optical media without affixing or installing in the resulting products the SID Code, and/or such other codes that is prescribed, assigned and authorized by the OMB The absence of the codes prescribed, assigned and authorized by the OMB in any optical media shall be prima facie evidence that said optical media are in violation of R.A. No. 9239
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs
Section 19 (a)(5)
any person, natural, or juridical who shall engage in the mastering, manufacture, or replication of optical media using, affixing or installing in the resulting products false SID or other codes The presence of false or authorized codes shall be prima facie evidence that said optical media are in violation of R.A. No. 9239
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/
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contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs Section 19 (a)(6)
any person, natural, or juridical who shall engage in mastering, manufacture, or replication of optical media using, affixing or installing in the resulting products false SID; or other codes that have been assigned by the OMB to another person; or having been assigned and authorized said codes by the OMB, allow or authorize another person, establishment or entity to use, affix or install such codes in the latter’s products.
Section 19 (b)(1)
any person, natural, or juridical who is engaging in the importation, exportation, sale or distribution of, or possess or acquire in commercial quantities manufacturing materials used or intended for use in the mastering, manufacture or replication of optical media without necessary licenses from the OMB
20
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) Photograph
Section 19 (b)(2)
any person, natural or juridical knowingly performing or rendering the service of mastering, manufacture or replication of optical media after having been licensed by the OMB, to any person in respect of any intellectual property who does not have the consent by the owner of the intellectual property or his representatives or assigns
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs
Section 19 (b)(3)
any person, natural, or juridical who refuse to submit to inspection by the OMB; or surrender for preventive custody any optical media equipment, manufacturing materials, including parts, accessories and paraphernalia found during inspection operations to be in violation of the provisions of R.A. No. 9239
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs
Section 19 (b), Subsection [a-1]
any person, natural, or juridical; who knowingly possess items of the same content or title; produced in violation of this Act; and used for the purpose with the intent to profit
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/
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contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) photographs Section 19 (b), Subsection [a-2]
any person, natural, or juridical: who is engaging in the sale, rental, distribution, importation, exportation of, or any other commercial activity; involving optical media that are in violation of this Act For subsequent offenses in Section 19 (a)
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Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of product registrations Permit/Valid license to operate Certification from OMB Official/Delivery receipts Other related documents/agreements/ contracts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products are counterfeit/ illegal items Identification of the competing products (authorized vs. illegal/unauthorized) Photographs
Republic Act No. 10088 “Anti-Camcording Act of 2010” Specific Crimes
Elements
Evidence
Section 3 (a)
any person, natural or juridical at a time when copyright subsists in a cinematographic film or other audiovisual work or its soundtrack shall use or attempt to use an audiovisual recording device to transmit or make a copy of any performance in an exhibition facility of such cinematographic film or other audiovisual work or its soundtrack, or any part thereof without the authorization of the copyright owner or exclusive licensee thereof
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificate of registration of the film/ audiovisual work/sound track Permit/Valid license to operate Certification from authorized enforcement agency Official/Delivery receipts Other related documents/agreements/contra cts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products or works are unauthorized/ illegal/ counterfeit items Identification of the competing products or works (authorized vs. illegal/unauthorized) photographs
Section 3 (b)
Any person, natural or juridical at a time when copyright subsists in a cinematographic film or other audiovisual work or its soundtrack shall have in his/her possession an audiovisual recording device in an exhibition facility with the intent of using or attempts to use the audiovisual recording device in order to transmit or make a copy of any performance in the exhibition facility or such cinematographic film or other audiovisual work or its soundtrack, or any part thereof without the authorization of the copyright owner or exclusive licensee thereof
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificate of registration of the film/ audiovisual work/sound track Permit/Valid license to operate Certification from authorized enforcement agency Official/Delivery receipts Other related documents/agreements/contra cts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products or works are unauthorized/ illegal/
Unauthorized use of Audiovisual Recording Device
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counterfeit items Identification of the competing products or works (authorized vs. illegal/unauthorized) photographs Other Unauthorized Acts Section 3 (c)
any person, natural or juridical who, at a time when copyright subsists in a cinematographic film or other audiovisual work or its soundtrack shall aid, abet or connive in the commission of the acts prohibited under this section, and without the authorization of the copyright owner or exclusive licensee thereof
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of registration of the film/ audiovisual work/sound track Permit/Valid license to operate Certification from authorized enforcement agency Official/Delivery receipts Other related documents/agreements/contra cts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products or works are unauthorized/ illegal/ counterfeit items Identification of the competing products or works (authorized vs. illegal/unauthorized) photographs
Section 4
any person, natural or juridical who commits any of the unauthorized/ unlawful acts provided in (the preceding) Section 3 hereof for the purpose of sale, rental or other commercial distribution of a copy of the cinematographic or audiovisual work or its soundtrack, or any part thereof
Affidavit of complainant Affidavit of witnesses Corporate files/ Articles of Incorporation Relevant certificates of registration of the film/ audiovisual work/sound track Permit/Valid license to operate Certification from authorized enforcement agency Official/Delivery receipts Other related documents/agreements/contra cts Application for Search Warrant Search Warrant Inventory Receipt/List of seized items Certification that the seized products or works are unauthorized/ illegal/ counterfeit items Identification of the competing products or works (authorized vs. illegal/unauthorized) photographs
[It shall not be a defense that the transmission or making of the copy of the cinematographic film or other audiovisual work or its soundtrack, or any part thereof, was for private or domestic purposes or in connection with a fair use deal]
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BATAS PAMBANSA BLG. 33 as amended by PRES. DECREE NO. 1865 An Act Defining and Penalizing Certain Prohibiting Acts Inimical to the Public Interest and National Security Involving Petroleum and/or Petroleum Products, Prescribing Penalties Therefor and For Other Purposes Specific Offense
Elements
Evidence
Sec. 2 (a) Illegal trading in petroleum and/or petroleum products
Sale or distribution of petroleum products for profit without license or authority from the government. non-issuance of receipts by licensed traders, oil, companies, marketers, distributors, dealers, etc.
certificate of authority or license from the government. official/delivery receipts during test-buy Business permit, BIR registration, registration with the SEC or Bureau of Domestic Trade of the suspected trader or dealer Search Warrant Affidavit of witnesses Inventory of petroleum products seized during implementation of search warrant other relevant documents
Sec. 2 (b)
mixing of any petroleum product with another finished or unfinished petroleum product or stock or any non-petroleum substance that will result of product change. for the purpose of sale, distribution, transportation, exchange or barter
Official receipt or delivery receipt during test-buy operations Search warrant sample of petroleum product bought must be presented for testing to the proper government agency or oil companies. Certification of product test/examination Business permit, BIR registration, Articles of Incorporation or Business Permit from the Domestic Trade Inventory of petroleum products seized during implementation of search warrant Affidavit of witnesses
Filling petroleum products of quantity beyond authorized limits refilling of LPG cylinders without authority from the government or without written authority from the oil company. making or using LPG cylinders a tare weight other than the actual or true tare weight
certification as to the use of pump metering unit which has not been properly calibrated and sealed by the city or municipal treasurer where the station or outlet is located or by the DOST or by the government or oil company search warrant
Adulteration of finished petroleum products or possession of adulterated finished petroleum products
Sec. 2 (c) Under delivery or underrefilling beyond authorized limits in the sale of petroleum
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products or possession of underfilled liquefied petroleum gas cylinder
for the purpose of sale, transfer, distribution, etc.
O.R. or delivery receipt during test-buy operations affidavit of witnesses business permits, etc. as evidence who owns the station pump metering unit with broken seals or absence thereof. Photographs
Sec. [(b)] (D) Hoarding of petroleum products
Under accumulation by a trader of petroleum or petroleum products beyond normal inventory levels unjustified refusal to dispose of or sell or distribute to consumers
Search warrant Inventory of petroleum products seized Affidavit of witnesses
Sec. [(c)] (E) Overpricing
sale of petroleum products at prices in excess of those authorized by the government.
Price index issued by the government Affidavit of witnesses OR or delivery receipt during test-buy operation Presentation of the petroleum products that are overpriced
Sec. [(d)] (F) Misuse of allocation
sale, transfer or diversion of mandated petroleum free allocation
Affidavit of witnesses receipts or delivery documents Certification of agency concerned.
Sec. [(e)] (G) Speed contest and rallies involving use of motor vehicles or motor driving water craft h. Sky Diving
drag racing
Affidavit of witnesses motor vehicles or craft and other paraphernalia used.
Affidavit of witnesses Paraphernalia used.
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CHAPTER III LAW ENFORCEMENT IN INTELLECTUAL PROPERTY CASES Investigation of intellectual property violations is oftentimes complaint driven. Law enforcement agencies, such as the Philippine National Police (PNP), National Bureau of Investigation (NBI), Optical Media Board (OMB) and Bureau of Customs (BOC) are generally the first to respond to these complaints. PROCEDURE IN THE FILING OF COMPLAINT WITH THE PNPCriminal Investigation and Detection Group (CIDG): I. Case Initiation: 1. Filing of the letter complaint by the IP owner or authorized representative; 2. Receipt of the complaint by the Office of the Director, CIDG or Office of the Anti-Fraud and Commercial Crimes Division of the CIDG, wherein the same will be evaluated by the Chief, IPR Division of the CIDG-AFCCD, and designate the same to an investigator who will handle the case; 3. Documentary Requirements: a. Proof of IP ownership; b. SEC Registration; c. Complaint affidavit of the IP owner or authorized representative; and d. Special Power of Attorney with Board Resolution designating the representative as such. II. Investigation: 1. Sworn Statement taken by the investigator-on-case – if needed. 2. Identification of Targets 4. Surveillance and Test-buy a. Photograph/sketch of the target/s; b. Official Receipt of the test buy, if any; c. Items from test buy to be examined and certified by the IP Owner as counterfeit, and that the subject of the complaint is neither authorized to sell, offer for sale, or manufacture their registered product, nor authorized to use their trademark and name.
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4. Preparation of Documents: FOR SEARCH WARRANT (SW) a. Application for Search warrant; b. Affidavit of IP owner/Authorized Representative together with the documentary requirements stated in paragraph 3 in the Case Initiation, the official receipt of the test buy, if any, and the certification mentioned in paragraph 3(b) of Investigation; and c. Affidavit of Deponent/Expert Witnesses. FOR IMPLEMENTATION OF SW AND FILING OF CASES: a. Inventory of seized items; b. Examination of the seized items by the expert witness; c. Certification whether or not the confiscated items are counterfeit; d. Chain of custody of seized evidence; e. In addition to the documentary requirements from the IP owner mentioned above, affidavit of the seizing officers, or arresting officers, or both, as the case maybe; f. Supplemental affidavit of the IP owner/Authorized representative, if needed; g. In inquest cases, the arrested person/s together with the pieces of evidence MUST be referred for inquest proceedings before the Prosecutors Office of Jurisdiction within the prescribed period in Article 125, RPC (12 hrs or 18 hrs, as the case maybe). The IP owner/authorized representative must be present during the inquest proceedings to be examined personally by the inquest prosecutor; and h. In the event that NO ARREST were made, the complaint MUST be filed with the Prosecutors Office within sixty (60) days upon the issuance of the search warrant, otherwise said search warrant maybe quashed by the issuing court, and order the return of the seized goods. FOR BUY-BUST a. Marked money; b. Actual buy-bust operation; c. Inventory of items; d. Examination of the seized items by the expert witness; e. Certification whether or not the confiscated items are counterfeit; f. Chain of custody of seized evidence;
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g. In addition to the documentary requirements from the IP owner mentioned above, affidavit of the seizing and arresting officers; h. Supplemental affidavit of the IP owner/Authorized representative, if needed; and i. The arrested person/s together with the pieces of evidence MUST be referred for inquest proceedings before the Prosecutors Office of Jurisdiction within the prescribed period in Article 125, RPC (12 hrs. or 18 hrs., as the case maybe). The IP owner/authorized representative must be present during the inquest proceedings to be examined by the inquest prosecutor.
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CHAPTER IV PROSECUTION OF INTELLECTUAL PROPERTY (IP) CASES Department of Justice The Department of Justice is tasked to ensure the prosecution of IP violators. Towards this end, the DOJ has created a special task force to investigate and prosecute these cases. In Department Order No. 826 dated October 5, 2011, the Secretary of Justice reconstituted the Task Force on AntiIntellectual Property Piracy, composed of State Prosecutors, Regional Prosecutors and City Prosecutors from the National Capital Region. The DOJ, through the National Prosecution Service, is mandated to determine probable cause, based on the evidence gathered by the law enforcers and submitted by the IP owners, and when the evidence warrants, file the corresponding information in court. Needless to say, the successful prosecution of a case in court largely depends upon the evidence submitted. On November 8, 2011, the Supreme Court promulgated A.M. No. 10-310-SC otherwise known as the “Rules of Procedure for Intellectual Property Rights Cases”, streamlining the rules on procedure governing, IP cases. The succeeding procedures are based on the Revised Rules of Court, DOJ Revised Manual for Prosecutors and A.M. No. 10-3-10-SC. Inquest Inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court. When a person is lawfully arrested without a warrant, the information may be filed by a prosecutor without a need of preliminary investigation provided that an inquest has been conducted according to existing Rules (Rule 12, Section 3, A.M. No. 10-3-10-SC). The inquest proceedings shall be considered commenced upon receipt by the inquest prosecutor of the following documents: 1. 2. 3. 4.
Affidavit of arrest Investigation report Sworn statement of the complainant and witnesses Other supporting documents, such as a certification that the goods found in respondents’ possession are counterfeit and detailed inventory of the items seized.
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Arrest not properly effected If the inquest prosecutor finds that the arrest was not made in accordance with Section 5 (a),(b) and (c) of Rule 113 of the Revised Rules on Criminal Procedure, he shall: 1. Recommend the release of the person arrested or detained; 2. Prepare a resolution indicating the reasons for the action taken; and 3. Forward the same, together with the record of the case to the Prosecutor General/City/Provincial Prosecutor for appropriate action. When the recommendation for the release of detained person is approved by the Prosecutor General or by the City/Provincial Prosecutor but the evidence on hand warrants the conduct of a regular preliminary investigation, the inquest prosecutor shall: 1. Serve the order of release to the law enforcement officer having custody of the detainee; and 2. Direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavits or sworn statements of the complainant and his witnesses and other supporting documents. Arrest properly effected Should the inquest prosecutor find that the arrest was properly effected, the detained person shall be asked if he desires to avail himself of a preliminary investigation and, if he does, the consequences thereof must be explained to him adequately. The detained person, assisted by counsel, shall execute a waiver of the provisions of Article 125 of the Revised Penal Code. The preliminary may be conducted by the inquest prosecutor of any other prosecutor to whom the case may be assigned. Inquest proper Where the detained person opts for the conduct of inquest proceedings, the inquest prosecutor, notwithstanding the absence of counsel, shall examine the sworn statements/affidavits of the complainant and other supporting documents submitted. If the inquest prosecutor finds that probable cause exists, he shall prepare the corresponding resolution and Information with the recommendation that the same be filed in court. The Information shall indicate the offense/s committed and amount of bail recommended. The 31
entire record of the case, with the resolution and Information shall be forwarded to the Prosecutor General/City/Provincial Prosecutor for approval and subsequent filing in court. Termination of Inquest Proceedings The inquest proceedings must be terminated within the period prescribed under the provisions of Article 125 of the Revised Penal Code, as amended. The period of inquest for IP cases is 18 hours.
Preliminary investigation A criminal complaint for violation of R.A. No. 8293 or other IP laws is commenced by the filing of a complaint for inquest or preliminary investigation with Department of Justice or the prosecutor’s office that has jurisdiction over the offense charged (Section 1, Rule 12, A.M. No. 10-3-10SC). Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. It is required where the penalty is at least 4 years 2 months and 1 day without regard to fine. In preliminary investigations, the evidence required for purposes of filing a complaint is merely such evidence as would engender a well-founded belief that a crime has been committed and the respondent is probable guilty thereof, and should be held for trial. Pursuant to Rule 12, Section 1(a) of the complaint shall: 1. State the full name of the complainant and the facts showing the capacity or authority of the complaining witness to institute a criminal action in a representative capacity, and the legal existence of an organized association of persons that is instituting the criminal action; 2. In case of juridical persons, proof of capacity to sue must be attached to the complaint; 3. Where the complainant is a juridical person not registered in the Philippines, documents proving its legal existence and/or its capacity to sue, such as certificate of registration or extracts from relevant commercial registries or offices having jurisdiction over said entities, shall be accepted if these are originals or in case of public documents, certified true copies thereof executed by the proper officer of such registries or offices; and 32
4. Such facts showing entitlement to file the action, where the complainant is a foreign national or is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement. The complaint shall be accompanied by affidavits of witnesses and other supporting documents to establish probable cause, such as: 1. 2. 3. 4. 5. 6.
Relevant certificates of registrations Official/delivery receipts during test-buy operations, if any Application for Search Warrant Search Warrant Detailed inventory receipt Certification that the products seized are counterfeit.
The complaint must also state the name and address of the respondent. To establish respondent’s identity, any of the following is sufficient: 1. SEC Certificate of Registration /Articles of Incorporation 2. Business Permit/Mayor’s Permit 3. Business Name Registration issued by the Department of Trade and Industry 4. Lease Contract Search Warrant With respect to issuance of search warrants, Special Commercial Courts in Quezon City, Manila, Makati and Pasig shall have the authority to act on applications for the issuance of search warrants involving violations of the Intellectual Property Code, which shall be enforceable nationwide. Within their respective territorial jurisdictions, the Special Commercial Courts in the judicial regions where the violation of intellectual property rights occurred shall have concurrent jurisdiction to issue search warrants (Rule 10, Section 2, A.M. No. 10-3-10 SC). Complaints filed by the Optical Media Board Additional documents, such as: (1) Inspection Order issued by the OMB Chairman; and (2) certification relative to the Source Identification Code are required. Procedure During preliminary investigation, complainant and respondent shall submit their respective affidavits and supporting proof of documents. After which, the investigating prosecutor shall determine whether there is sufficient ground to hold respondent for trial.
33
If the respondent cannot be subpoenaed or, if subpoenaed, does not submit his counter-affidavit within the prescribed period, the investigating prosecutor shall base his resolution on the evidence presented by the complainant. The investigating prosecutor shall forward his recommendation and Information, together with the complete records of the case, to the Prosecutor General/Regional/Provincial/City Prosecutor concerned for approval. Jurisdiction over the Offense The Information, together with attachments, involving an IP offense should be filed in the Special Commercial Court (Regional Trial Court), which has jurisdiction over the territory where any of the elements of the offense occurred (Section 2, Rule 11 of A.M. No. 10-3-10-SC). R.A. No. 8293 is a special law conferring jurisdiction over violations of intellectual property rights to the Regional Trial Court (Samson vs. Judge Daway, G.R. Nos. 160054-55, July 21, 2004). Intellectual Property Violations are Mala Prohibita Crimes, such as intellectual property violations, are wrong because they are prohibited by special laws. Thus, good faith or absence of malice is not a defense.
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Republic of the Philippines NATIONAL CAPITAL JUDICIAL REGION REGIONAL TRIAL COURT Branch___ Manila People of the Philippines Plaintiff,
Criminal Case No. ___ I.S. No.:__________
-versus-
For: Violation of Sec. 168 (Unfair Competition) in relation to Sec. 170 of R.A. No. 8293
_________________ (name) _________________ (address) Accused. At large.
INFORMATION The undersigned State Prosecutor of the Department of Justice hereby accuses (name) of the criminal offenses of violation of Section 168 (Unfair Competition) in relation to Section 170 of Republic Act No. 8293 (Intellectual Property Code of the Philippines), committed as follows: “That on or about 8 September 2011 in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, as owner, manager and operator of XYZ General Merchandise, located at ______________ wherein he has direct control, management and supervision of the said establishment, did then and there willfully, unlawfully and feloniously manufacture, sell distribute and offer for sale counterfeited ______ rice products which are closely identical to and/or colourable imitation of the authentic/genuine ______ rice products of ____Corporation (as represented by ________) and likewise using _______trademarks/symbols and designs causing confusion or deception on the part of the buying public believing that the goods offered for sale by the accused are those of ____ Corporation, the registered owner of said trademark to the damage and prejudice of the latter and the consuming public”. CONTRARY TO LAW. Manila, Philippines, (date) . _____________ 35
APPROVED: __________________
CERTIFICATION I HEREBY CERTIFY that I have conducted preliminary investigation in this case in accordance with law; that I have personally examined the complainant and its witnesses; that on the basis of their sworn statements and other evidence presented before me there is reasonable ground to believe that a crime has been committed and that the accused was informed of the complaint and of the evidence submitted against him/her and that he/she was given the opportunity to submit controverting evidence. _____________ SUBSCRIBED AND SWORN to before me this ___ day of ______ 2012 in the City of Manila. _____________ WITNESSES: 1. 2. 3. BAIL RECOMMENDED: _____________
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Republic of the Philippines NATIONAL CAPITAL JUDICIAL REGION REGIONAL TRIAL COURT Branch___ Pasig City People of the Philippines Plaintiff,
Criminal Case No. ___ I.S. No.:__________
-versus-
For: Violation of Sec. 177 (Copyright Infringement) in relation to Sec. 217.1 of R.A. No. 8293
_________________ (name) _________________ (address) Accused. At large.
INFORMATION The undersigned State Prosecutor of the Department of Justice hereby accuses (name) of the criminal offenses of violation of Section 177 (Copyright Infringement) in relation to Section 217.1 of Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines, committed as follows: “That on or about 15 March 2011 in Pasig City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being responsible officers/directors of __________ with office address at _____________, with criminal intent to defraud ____________, the owner of the shop, did then and there willfully, unlawfully and feloniously possess, install and utilize infringed/unlicensed copies of _________ in several computers they were using in the conduct of their business, without consent, permit and authority of the owner, ________ to the damage and prejudice of the latter and the general consuming public”. CONTRARY TO LAW. Manila, Philippines, (date) . _____________
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APPROVED: __________________
CERTIFICATION
I HEREBY CERTIFY that I have conducted preliminary investigation in this case in accordance with law; that I have personally examined the complainant and its witnesses; that on the basis of their sworn statements and other evidence presented before me there is reasonable ground to believe that a crime has been committed and that the accused was informed of the complaint and of the evidence submitted against him/her and that he/she was given the opportunity to submit controverting evidence. _____________ SUBSCRIBED AND SWORN to before me this ___ day of ______ 2012 in the City of Manila. _____________ WITNESSES: 1. 2. 3.
BAIL RECOMMENDED: _____________
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Republic of the Philippines NATIONAL CAPITAL JUDICIAL REGION REGIONAL TRIAL COURT Branch___ Pasig City People of the Philippines Plaintiff,
Criminal Case No. ___ I.S. No.:__________
-versus-
For: Violation of Sec. 3(a) of R.A. No. 10088 _________________ (name) _________________ (address) Accused. At large. INFORMATION The undersigned Assistant State Prosecutor of the Department of Justice accuses __________ of violation of Section 3 (a) of Republic Act No. 10088, otherwise known as the Anti-Camcording Act of 2010, committed as follows: That on ________________, in the City of Manila, and within the jurisdiction of this Honorable Court, the above-named accused did then and there, knowingly, willfully, unlawfully and feloniously use a ___________, an audiovisual recording device, to record or make a copy of a part of “________________________”without the authority of _____________________, its copyright owner, to the damage and prejudice of the latter and the general consuming public. CONTRARY TO LAW. Manila. _________________. ______________________ Assistant State Prosecutor APPROVED: ______________________
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CERTIFICATION I HEREBY CERTIFY that I have conducted preliminary investigation in this case in accordance with law; that I have personally examined the complainant and its witnesses; that on the basis of their sworn statements and other evidence presented before me there is reasonable ground to believe that a crime has been committed and that the accused was informed of the complaint and of the evidence submitted against him/her and that he/she was given the opportunity to submit controverting evidence. _____________ SUBSCRIBED AND SWORN to before me this ___ day of ______ 2012 in the City of Manila. _____________ WITNESSES: 1. 2. 3.
BAIL RECOMMENDED: _____________
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IP CHECKLIST QUICK GUIDE A. Preliminary Investigation Common Requirements: 1. Affidavit-Complaint duly subscribed 2. If filed by a representative – SPA duly authenticated / consularized 3. Certificates of Registration 4. Licensing Agreements 5. Affidavits of Witnesses 6. Receipt during test-buy, if there is any 7. Application for Search Warrant 8. Search Warrant 9. Detailed inventory of property seized 10. Return of Search Warrant 11. Certification that the products seized are counterfeit /respondent is not authorized to use the design / sell 12. DOJ receipt showing payment of filing fee 13. To establish identity of respondent: a. b. c. d.
SEC Registration Business Permit DTI (Business name registration) Lease contract
B. Inquest Cases 1. Common Requirements 2. Affidavit of Arrest C. NBI / PNP Enforcement (RA 8203 / BFAD Law) 1. Common Requirements 2. BFAD Registration 3. Negative Certification (No authority to import)
For inquest cases: Common Requirements plus Affidavit of Arrest
D. OMB Common Requirements plus 1. Inspection Order issued by the OMB Chairman 2. Certification of Source Identification Code issued by the OMB
For Inquest Cases: Common Requirements plus Affidavit of Arrest
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Republic of the Philippines Congress of the Philippines Metro Manila Tenth Congress Republic Act No. 8293
June 6, 1997
AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE, PROVIDING FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: PART I THE INTELLECTUAL PROPERTY OFFICE Section 1. Title. - This Act shall be known as the "Intellectual Property Code of the Philippines." Section 2. Declaration of State Policy. - The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act. The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good. It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines. (n) Section 3. International Conventions and Reciprocity. - Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to intellectual property rights or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to nationals of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act. (n) Section 4. Definitions. - 4.1. The term "intellectual property rights" consists of: a) Copyright and Related Rights; b) Trademarks and Service Marks; c) Geographic Indications; d) Industrial Designs; e) Patents; f) Layout-Designs (Topographies) of Integrated Circuits; and g) Protection of Undisclosed Information (n, TRIPS). 4.2. The term "technology transfer arrangements" refers to contracts or agreements involving the transfer of systematic knowledge for the manufacture of a product, the application of a process, or rendering of a service including management contracts; and the transfer, assignment or licensing of all forms of intellectual property rights, including licensing of computer software except computer software developed for mass market. 4.3. The term "Office" refers to the Intellectual Property Office created by this Act. 4.4. The term "IPO Gazette" refers to the gazette published by the Office under this Act. (n)
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Section 5. Functions of the Intellectual Property Office (IPO). - 5.1. To administer and implement the State policies declared in this Act, there is hereby created the Intellectual Property Office (IPO) which shall have the following functions: a) Examine applications for grant of letters patent for inventions and register utility models and industrial designs; b) Examine applications for the registration of marks, geographic indication, integrated circuits; c) Register technology transfer arrangements and settle disputes involving technology transfer payments covered by the provisions of Part II, Chapter IX on Voluntary Licensing and develop and implement strategies to promote and facilitate technology transfer; d) Promote the use of patent information as a tool for technology development; e) Publish regularly in its own publication the patents, marks, utility models and industrial designs, issued and approved, and the technology transfer arrangements registered; f) Administratively adjudicate contested proceedings affecting intellectual property rights; and g) Coordinate with other government agencies and the private sector efforts to formulate and implement plans and policies to strengthen the protection of intellectual property rights in the country. 5.2. The Office shall have custody of all records, books, drawings, specifications, documents, and other papers and things relating to intellectual property rights applications filed with the Office. (n) Section 6. The Organizational Structure of the IPO. - 6.1. The Office shall be headed by a Director General who shall be assisted by two (2) Deputies Director General. 6.2. The Office shall be divided into six (6) Bureaus, each of which shall be headed by a Director and assisted by an Assistant Director. These Bureaus are: a) The Bureau of Patents; b) The Bureau of Trademarks; c) The Bureau of Legal Affairs; d) The Documentation, Information and Technology Transfer Bureau; e) The Management Information System and EDP Bureau; and f) The Administrative, Financial and Personnel Services Bureau. 6.3. The Director General, Deputies Director General, Directors and Assistant Directors shall be appointed by the President, and the other officers and employees of the Office by the Secretary of Trade and Industry, conformably with and under the Civil Service Law. (n) Section 7. The Director General and Deputies Director General. - 7.1. Functions. - The Director General shall exercise the following powers and functions: a) Manage and direct all functions and activities of the Office, including the promulgation of rules and regulations to implement the objectives, policies, plans, programs and projects of the Office: Provided, That in the exercise of the authority to propose policies and standards in relation to the following: (1) the effective, efficient, and economical operations of the Office requiring statutory enactment; (2) coordination with other agencies of government in relation to the enforcement of intellectual property rights; (3) the recognition of attorneys, agents, or other persons representing applicants or other parties before the Office; and (4) the establishment of fees for the filing and processing of an application for a patent, utility model or industrial design or mark or a collective mark, geographic indication and other marks of ownership, and for all other services performed and materials furnished by the Office, the Director General shall be subject to the supervision of the Secretary of Trade and Industry; b) Exercise exclusive appellate jurisdiction over all decisions rendered by the Director of Legal Affairs, the Director of Patents, the Director of Trademarks, and the Director of the Documentation, Information and Technology Transfer Bureau. The decisions of the Director General in the exercise of his appellate jurisdiction in respect of the decisions of the Director of Patents, and the Director of Trademarks shall be appealable to the Court of Appeals in accordance with the Rules of Court; and those in respect of the decisions of the Director of Documentation, Information and Technology Transfer Bureau shall be appealable to the Secretary of Trade and Industry; and
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c) Exercise original jurisdiction to resolve disputes relating to the terms of a license involving the author's right to public performance or other communication of his work. The decisions of the Director General in these cases shall be appealable to the Secretary of Trade and Industry. 7.2. Qualifications. - The Director General and the Deputies Director General must be natural born citizens of the Philippines, at least thirty-five (35) years of age on the day of their appointment, holders of a college degree, and of proven competence, integrity, probity and independence: Provided, That the Director General and at least one (1) Deputy Director General shall be members of the Philippine Bar who have engaged in the practice of law for at least ten (10) years: Provided further, That in the selection of the Director General and the Deputies Director General, consideration shall be given to such qualifications as would result, as far as practicable, in the balanced representation in the Directorate General of the various fields of intellectual property. 7.3. Term of Office. - The Director General and the Deputies Director General shall be appointed by the President for a term of five (5) years and shall be eligible for reappointment only once: Provided, That the first Director General shall have a first term of seven (7) years. Appointment to any vacancy shall be only for the unexpired term of the predecessor. 7.4. The Office of the Director General. - The Office of the Director General shall consist of the Director General and the Deputies Director General, their immediate staff and such Offices and Services that the Director General will set up to support directly the Office of the Director General. (n) Section 8. The Bureau of Patents. - The Bureau of Patents shall have the following functions: 8.1. Search and examination of patent applications and the grant of patents; 8.2. Registration of utility models, industrial designs, and integrated circuits; and 8.3. Conduct studies and researches in the field of patents in order to assist the Director General in formulating policies on the administration and examination of patents. (n) Section 9. The Bureau of Trademarks. - The Bureau of Trademarks shall have the following functions: 9.1. Search and examination of the applications for the registration of marks, geographic indications and other marks of ownership and the issuance of the certificates of registration; and 9.2. Conduct studies and researches in the field of trademarks in order to assist the Director General in formulating policies on the administration and examination of trademarks. (n) Section 10. The Bureau of Legal Affairs. - The Bureau of Legal Affairs shall have the following functions: 10.1. Hear and decide opposition to the application for registration of marks; cancellation of trademarks; subject to the provisions of Section 64, cancellation of patents, utility models, and industrial designs; and petitions for compulsory licensing of patents; 10.2. (a) Exercise original jurisdiction in administrative complaints for violations of laws involving intellectual property rights: Provided, That its jurisdiction is limited to complaints where the total damages claimed are not less than Two hundred thousand pesos (P200,000): Provided further, That availment of the provisional remedies may be granted in accordance with the Rules of Court. The Director of Legal Affairs shall have the power to hold and punish for contempt all those who disregard orders or writs issued in the course of the proceedings. (n) (b) After formal investigation, the Director for Legal Affairs may impose one (1) or more of the following administrative penalties: (i) The issuance of a cease and desist order which shall specify the acts that the respondent shall cease and desist from and shall require him to submit a compliance report within a reasonable time which shall be fixed in the order; (ii) The acceptance of a voluntary assurance of compliance or discontinuance as may be imposed. Such voluntary assurance may include one or more of the following: (1) An assurance to comply with the provisions of the intellectual property law violated; (2) An assurance to refrain from engaging in unlawful and unfair acts and practices subject of the formal investigation; (3) An assurance to recall, replace, repair, or refund the money value of defective goods distributed in commerce; and
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(4) An assurance to reimburse the complainant the expenses and costs incurred in prosecuting the case in the Bureau of Legal Affairs. The Director of Legal Affairs may also require the respondent to submit periodic compliance reports and file a bond to guarantee compliance of his undertaking; (iii) The condemnation or seizure of products which are subject of the offense. The goods seized hereunder shall be disposed of in such manner as may be deemed appropriate by the Director of Legal Affairs, such as by sale, donation to distressed local governments or to charitable or relief institutions, exportation, recycling into other goods, or any combination thereof, under such guidelines as he may provide; (iv) The forfeiture of paraphernalia and all real and personal properties which have been used in the commission of the offense; (v) The imposition of administrative fines in such amount as deemed reasonable by the Director of Legal Affairs, which shall in no case be less than Five thousand pesos (P5,000) nor more than One hundred fifty thousand pesos (P150,000). In addition, an additional fine of not more than One thousand pesos (P1,000) shall be imposed for each day of continuing violation; (vi) The cancellation of any permit, license, authority, or registration which may have been granted by the Office, or the suspension of the validity thereof for such period of time as the Director of Legal Affairs may deem reasonable which shall not exceed one (1) year; (vii) The withholding of any permit, license, authority, or registration which is being secured by the respondent from the Office; (viii) The assessment of damages; (ix) Censure; and (x) Other analogous penalties or sanctions. (Secs. 6, 7, 8, and 9, Executive Order No. 913 [1983]a) 10.3. The Director General may by Regulations establish the procedure to govern the implementation of this Section. (n) Section 11. The Documentation, Information and Technology Transfer Bureau. - The Documentation, Information and Technology Transfer Bureau shall have the following functions: 11.1. Support the search and examination activities of the Office through the following activities: (a) Maintain and upkeep classification systems whether they be national or international such as the International Patent Classification (IPC) system; (b) Provide advisory services for the determination of search patterns; (c) Maintain search files and search rooms and reference libraries; and (d) Adapt and package industrial property information. 11.2. Establish networks or intermediaries or regional representatives; 11.3. Educate the public and build awareness on intellectual property through the conduct of seminars and lectures, and other similar activities; 11.4. Establish working relations with research and development institutions as well as with local and international intellectual property professional groups and the like; 11.5. Perform state-of-the-art searches; 11.6. Promote the use of patent information as an effective tool to facilitate the development of technology in the country; 11.7. Provide technical, advisory, and other services relating to the licensing and promotion of technology, and carry out an efficient and effective program for technology transfer; and
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11.8. Register technology transfer arrangements, and settle disputes involving technology transfer payments. (n) Section 12. The Management Information Services and EDP Bureau. - The Management Information Services and EDP Bureau shall: 12.1. Conduct automation planning, research and development, testing of systems, contracts with firms, contracting, purchase and maintenance of equipment, design and maintenance of systems, user consultation, and the like; and 12.2. Provide management information support and service to the Office. (n) Section 13. The Administrative, Financial and Human Resource Development Service Bureau. - 13.1. The Administrative Service shall: (a) Provide services relative to procurement and allocation of supplies and equipment, transportation, messengerial work, cashiering, payment of salaries and other Office's obligations, office maintenance, proper safety and security, and other utility services; and comply with government regulatory requirements in the areas of performance appraisal, compensation and benefits, employment records and reports; (b) Receive all applications filed with the Office and collect fees therefor, and (c) Publish patent applications and grants, trademark applications, and registration of marks, industrial designs, utility models, geographic indication, and lay-out-designs of integrated circuits registrations. 13.2. The Patent and Trademark Administration Services shall perform the following functions among others: (a) Maintain registers of assignments, mergings, licenses, and bibliographic on patents and trademarks; (b) Collect maintenance fees, issue certified copies of documents in its custody and perform similar other activities; and (c) Hold in custody all the applications filed with the office, and all patent grants, certificate of registrations issued by the office, and the like. 13.3. The Financial Service shall formulate and manage a financial program to ensure availability and proper utilization of funds; provide for an effective monitoring system of the financial operations of the Office; and 13.4. The Human Resource Development Service shall design and implement human resource development plans and programs for the personnel of the Office; provide for present and future manpower needs of the organization; maintain high morale and favorable employee attitudes towards the organization through the continuing design and implementation of employee development programs. (n) Section 14. Use of Intellectual Property Rights Fees by the IPO. - 14.1. For a more effective and expeditious implementation of this Act, the Director General shall be authorized to retain, without need of a separate approval from any government agency, and subject only to the existing accounting and auditing rules and regulations, all the fees, fines, royalties and other charges, collected by the Office under this Act and the other laws that the Office will be mandated to administer, for use in its operations, like upgrading of its facilities, equipment outlay, human resource development, and the acquisition of the appropriate office space, among others, to improve the delivery of its services to the public. This amount, which shall be in addition to the Office's annual budget, shall be deposited and maintained in a separate account or fund, which may be used or disbursed directly by the Director General. 14.2. After five (5) years from the coming into force of this Act, the Director General shall, subject to the approval of the Secretary of Trade and Industry, determine if the fees and charges mentioned in Subsection 14.1 hereof that the Office shall collect are sufficient to meet its budgetary requirements. If so, it shall retain all the fees and charges it shall collect under the same conditions indicated in said Subsection 14.1 but shall forthwith, cease to receive any funds from the annual budget of the National Government; if not, the provisions of said Subsection 14.1 shall continue to apply until such time when the Director General, subject to the approval of the Secretary of Trade and Industry, certifies that the above-stated fees and charges the Office shall collect are enough to fund its operations. (n) Section 15. Special Technical and Scientific Assistance. - The Director General is empowered to obtain the assistance of technical, scientific or other qualified officers and employees of other departments, bureaus, offices, agencies and instrumentalities of the Government, including corporations owned, controlled or operated by the Government, when deemed necessary in the consideration of any matter submitted to the Office relative to the enforcement of the provisions of this Act. (Sec. 3, R.A. No. 165a) Section 16. Seal of Office. - The Office shall have a seal, the form and design of which shall be approved by the Director General. (Sec. 4, R.A. No. 165a) Section 17. Publication of Laws and Regulations. - The Director General shall cause to be printed and make available for distribution, pamphlet copies of this Act, other pertinent laws, executive orders and information circulars relating to matters within the jurisdiction of the Office. (Sec. 5, R.A. No. 165a)
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Section 18. The IPO Gazette. - All matters required to be published under this Act shall be published in the Office's own publication to be known as the IPO Gazette. (n) Section 19. Disqualification of Officers and Employees of the Office. - All officers and employees of the Office shall not apply or act as an attorney or patent agent of an application for a grant of patent, for the registration of a utility model, industrial design or mark nor acquire, except by hereditary succession, any patent or utility model, design registration, or mark or any right, title or interest therein during their employment and for one (1) year thereafter. (Sec. 77, R.A. No. 165a) PART II THE LAW ON PATENTS CHAPTER I GENERAL PROVISIONS Section 20. Definition of Terms Used in Part II, The Law on Patents. - As used in Part II, the following terms shall have the following meanings: 20.1. "Bureau" means the Bureau of Patents, 20.2. "Director" means the Director of Patents; 20.3. "Regulations" means the Rules of Practice in Patent Cases formulated by the Director of Patents and promulgated by the Director General; 20.4. "Examiner" means the patent examiner; 20.5. "Patent application" or "application" means an application for a patent for an invention except in Chapters XII and XIII, where "application" means an application for a utility model and an industrial design, respectively; and 20.6. "Priority date" means the date of filing of the foreign application for the same invention referred to in Section 31 of this Act. (n) CHAPTER II PATENTABILITY Section 21. Patentable Inventions. - Any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be Patentable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing. (Sec. 7, R.A. No. 165a) Section 22. Non-Patentable Inventions. - The following shall be excluded from patent protection: 22.1. Discoveries, scientific theories and mathematical methods; 22.2. Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers; 22.3. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall not apply to products and composition for use in any of these methods; 22.4. Plant varieties or animal breeds or essentially biological process for the production of plants or animals. This provision shall not apply to micro-organisms and non-biological and microbiological processes. Provisions under this subsection shall not preclude Congress to consider the enactment of a law providing sui generis protection of plant varieties and animal breeds and a system of community intellectual rights protection: 22.5. Aesthetic creations; and 22.6. Anything which is contrary to public order or morality. (Sec. 8, R.A. No. 165a) Section 23. Novelty. . - An invention shall not be considered new if it forms part of a prior art. (Sec. 9, R.A. No. 165a) Section 24. Prior Art. - Prior art shall consist of:
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24.1. Everything which has been made available to the public anywhere in the world, before the filing date or the priority date of the application claiming the invention; and 24.2. The whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, with a filing or priority date that is earlier than the filing or priority date of the application: Provided, That the application which has validly claimed the filing date of an earlier application under Section 31 of this Act, shall be prior art with effect as of the filing date of such earlier application: Provided further, That the applicant or the inventor identified in both applications are not one and the same. (Sec. 9, R.A. No. 165a) Section 25. Non-Prejudicial Disclosure. . - 25.1. The disclosure of information contained in the application during the twelve (12) months preceding the filing date or the priority date of the application shall not prejudice the applicant on the ground of lack of novelty if such disclosure was made by: (a) The inventor; (b) A patent office and the information was contained (a) in another application filed by the inventor and should not have been disclosed by the office, or (b) in an application filed without the knowledge or consent of the inventor by a third party which obtained the information directly or indirectly from the inventor; or (c) A third party which obtained the information directly or indirectly from the inventor. 25.2. For the purposes of Subsection 25.1, "inventor" also means any person who, at the filing date of application, had the right to the patent. (n) Section 26. Inventive Step. - An invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention. (n) Section 27. Industrial Applicability. - An invention that can be produced and used in any industry shall be industrially applicable. (n) CHAPTER III RIGHT TO A PATENT Section 28. Right to a Patent. - The right to a patent belongs to the inventor, his heirs, or assigns. When two (2) or more persons have jointly made an invention, the right to a patent shall belong to them jointly. (Sec. 10, R.A. No. 165a) Section 29. First to File Rule. - If two (2) or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention, or where two or more applications are filed for the same invention, to the applicant who has the earliest filing date or, the earliest priority date. (3rd sentence, Sec. 10, R.A. No. 165a.) Section 30. Inventions Created Pursuant to a Commission. - 30.1. The person who commissions the work shall own the patent, unless otherwise provided in the contract. 30.2. In case the employee made the invention in the course of his employment contract, the patent shall belong to: (a) The employee, if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer. (b) The employer, if the invention is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary. (n) Section 31. Right of Priority. . - An application for patent filed by any person who has previously applied for the same invention in another country which by treaty, convention, or law affords similar privileges to Filipino citizens, shall be considered as filed as of the date of filing the foreign application: Provided, That: (a) the local application expressly claims priority; (b) it is filed within twelve (12) months from the date the earliest foreign application was filed; and (c) a certified copy of the foreign application together with an English translation is filed within six (6) months from the date of filing in the Philippines. (Sec. 15, R.A. No. 165a) CHAPTER IV PATENT APPLICATION Section 32. The Application. - 32.1. The patent application shall be in Filipino or English and shall contain the following:
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(a) A request for the grant of a patent; (b) A description of the invention; (c) Drawings necessary for the understanding of the invention; (d) One or more claims; and (e) An abstract. 32.2. No patent may be granted unless the application identifies the inventor. If the applicant is not the inventor, the Office may require him to submit said authority. (Sec. 13, R.A. No. 165a) Section 33. Appointment of Agent or Representative. - An applicant who is not a resident of the Philippines must appoint and maintain a resident agent or representative in the Philippines upon whom notice or process for judicial or administrative procedure relating to the application for patent or the patent may be served. (Sec. 11, R.A. No. 165a) Section 34. The Request. - The request shall contain a petition for the grant of the patent, the name and other data of the applicant, the inventor and the agent and the title of the invention. (n) Section 35. Disclosure and Description of the Invention. - 35.1. Disclosure. - The application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art. Where the application concerns a microbiological process or the product thereof and involves the use of a micro-organism which cannot be sufficiently disclosed in the application in such a way as to enable the invention to be carried out by a person skilled in the art, and such material is not available to the public, the application shall be supplemented by a deposit of such material with an international depository institution. 35.2. Description. - The Regulations shall prescribe the contents of the description and the order of presentation. (Sec. 14, R.A. No. 165a) Section 36. The Claims. - 36.1. The application shall contain one (1) or more claims which shall define the matter for which protection is sought. Each claim shall be clear and concise, and shall be supported by the description. 36.2. The Regulations shall prescribe the manner of the presentation of claims. (n) Section 37. The Abstract. - The abstract shall consist of a concise summary of the disclosure of the invention as contained in the description, claims and drawings in preferably not more than one hundred fifty (150) words. It must be drafted in a way which allows the clear understanding of the technical problem, the gist of the solution of that problem through the invention, and the principal use or uses of the invention. The abstract shall merely serve for technical information. (n) Section 38. Unity of Invention. - 38.1. The application shall relate to one invention only or to a group of inventions forming a single general inventive concept. 38.2. If several independent inventions which do not form a single general inventive concept are claimed in one application, the Director may require that the application be restricted to a single invention. A later application filed for an invention divided out shall be considered as having been filed on the same day as the first application: Provided, That the later application is filed within four (4) months after the requirement to divide becomes final or within such additional time, not exceeding four (4) months, as may be granted: Provided further, That each divisional application shall not go beyond the disclosure in the initial application. 38.3. The fact that a patent has been granted on an application that did not comply with the requirement of unity of invention shall not be a ground to cancel the patent. (Sec. 17, R.A. No. 165a) Section 39. Information Concerning Corresponding Foreign Application for Patents. - The applicant shall, at the request of the Director, furnish him with the date and number of any application for a patent filed by him abroad, hereafter referred to as the "foreign application," relating to the same or essentially the same invention as that claimed in the application filed with the Office and other documents relating to the foreign application. (n) CHAPTER V PROCEDURE FOR GRANT OF PATENT Section 40. Filing Date Requirements. - 40.1. The filing date of a patent application shall be the date of receipt by the Office of at least the following elements: (a) An express or implicit indication that a Philippine patent is sought;
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(b) Information identifying the applicant; and (c) Description of the invention and one (1) or more claims in Filipino or English. 40.2. If any of these elements is not submitted within the period set by the Regulations, the application shall be considered withdrawn. (n) Section 41. According a Filing Date. - The Office shall examine whether the patent application satisfies the requirements for the grant of date of filing as provided in Section 40 hereof. If the date of filing cannot be accorded, the applicant shall be given an opportunity to correct the deficiencies in accordance with the implementing Regulations. If the application does not contain all the elements indicated in Section 40, the filing date should be that date when all the elements are received. If the deficiencies are not remedied within the prescribed time limit, the application shall be considered withdrawn. (n) Section 42. Formality Examination. - 42.1. After the patent application has been accorded a filing date and the required fees have been paid on time in accordance with the Regulations, the applicant shall comply with the formal requirements specified by Section 32 and the Regulations within the prescribed period, otherwise the application shall be considered withdrawn. 42.2. The Regulations shall determine the procedure for the re-examination and revival of an application as well as the appeal to the Director of Patents from any final action by the examiner. (Sec. 16, R.A. No. 165a) Section 43. Classification and Search. - An application that has complied with the formal requirements shall be classified and a search conducted to determine the prior art. (n) Section 44. Publication of Patent Application. - 44.1. The patent application shall be published in the IPO Gazette together with a search document established by or on behalf of the Office citing any documents that reflect prior art, after the expiration of eighteen ( 18) months from the filing date or priority date. 44.2. After publication of a patent application, any interested party may inspect the application documents filed with the Office. 44.3. The Director General subject to the approval of the Secretary of Trade and Industry, may prohibit or restrict the publication of an application, if in his opinion, to do so would be prejudicial to the national security and interests of the Republic of the Philippines. (n) Section 45. Confidentiality Before Publication. - A patent application, which has not yet been published, and all related documents, shall not be made available for inspection without the consent of the applicant. (n) Section 46. Rights Conferred by a Patent Application After Publication. - The applicant shall have all the rights of a patentee under Section 76 against any person who, without his authorization, exercised any of the rights conferred under Section 71 of this Act in relation to the invention claimed in the published patent application, as if a patent had been granted for that invention: Provided, That the said person had: 46.1. Actual knowledge that the invention that he was using was the subject matter of a published application; or 46.2. Received written notice that the invention that he was using was the subject matter of a published application being identified in the said notice by its serial number: Provided, That the action may not be filed until after the grant of a patent on the published application and within four (4) years from the commission of the acts complained of. (n) Section 47. Observation by Third Parties. - Following the publication of the patent application, any person may present observations in writing concerning the patentability of the invention. Such observations shall be communicated to the applicant who may comment on them. The Office shall acknowledge and put such observations and comment in the file of the application to which it relates. (n) Section 48. Request for Substantive Examination. - 48.1. The application shall be deemed withdrawn unless within six (6) months from the date of publication under Section 41, a written request to determine whether a patent application meets the requirements of Sections 21 to 27 and Sections 32 to 39 and the fees have been paid on time. 48.2. Withdrawal of the request for examination shall be irrevocable and shall not authorize the refund of any fee. (n) Section 49. Amendment of Application. - An applicant may amend the patent application during examination: Provided, That such amendment shall not include new matter outside the scope of the disclosure contained in the application as filed. (n) Section 50. Grant of Patent. - 50.1. If the application meets the requirements of this Act, the Office shall grant the patent: Provided, That all the fees are paid on time.
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50.2. If the required fees for grant and printing are not paid in due time, the application shall be deemed to be withdrawn. 50.3. A patent shall take effect on the date of the publication of the grant of the patent in the IPO Gazette. (Sec. 18, R.A. No. 165a) Section 51. Refusal of the Application. - 51.1. The final order of refusal of the examiner to grant the patent shall be appealable to the Director in accordance with this Act. 51.2. The Regulations shall provide for the procedure by which an appeal from the order of refusal from the Director shall be undertaken. (n) Section 52. Publication Upon Grant of Patent. - 52.1. The grant of the patent together with other related information shall be published in the IPO Gazette within the time prescribed by the Regulations. 52.2. Any interested party may inspect the complete description, claims, and drawings of the patent on file with the Office. (Sec. 18, R.A. No. 165a) Section 53. Contents of Patent. - The patent shall be issued in the name of the Republic of the Philippines under the seal of the Office and shall be signed by the Director, and registered together with the description, claims, and drawings, if any, in books and records of the Office. (Secs. 19 and 20, R.A. No. 165a) Section 54. Term of Patent. - The term of a patent shall be twenty (20) years from the filing date of the application. (Sec. 21, R.A. No. 165a) Section 55. Annual Fees. - 55.1. To maintain the patent application or patent, an annual fee shall be paid upon the expiration of four (4) years from the date the application was published pursuant to Section 44 hereof, and on each subsequent anniversary of such date. Payment may be made within three (3) months before the due date. The obligation to pay the annual fees shall terminate should the application be withdrawn, refused, or cancelled. 55.2. If the annual fee is not paid, the patent application shall be deemed withdrawn or the patent considered as lapsed from the day following the expiration of the period within which the annual fees were due. A notice that the application is deemed withdrawn or the lapse of a patent for non-payment of any annual fee shall be published in the IPO Gazette and the lapse shall be recorded in the Register of the Office. 55.3. A grace period of six (6) months shall be granted for the payment of the annual fee, upon payment of the prescribed surcharge for delayed payment. (Sec. 22, R.A. No. 165a) Section 56. Surrender of Patent. - 56.1. The owner of the patent, with the consent of all persons having grants or licenses or other right, title or interest in and to the patent and the invention covered thereby, which have been recorded in the Office, may surrender his patent or any claim or claims forming part thereof to the Office for cancellation. 56.2. A person may give notice to the Office of his opposition to the surrender of a patent under this section, and if he does so, the Bureau shall notify the proprietor of the patent and determine the question. 56.3. If the Office is satisfied that the patent may properly be surrendered, he may accept the offer and, as from the day when notice of his acceptance is published in the IPO Gazette, the patent shall cease to have effect, but no action for infringement shall lie and no right compensation shall accrue for any use of the patented invention before that day for the services of the government. (Sec. 24, R.A. No. 165a) Section 57. Correction of Mistakes of the Office. - The Director shall have the power to correct, without fee, any mistake in a patent incurred through the fault of the Office when clearly disclosed in the records thereof, to make the patent conform to the records. (Sec. 25, R.A. No. 165) Section 58. Correction of Mistake in the Application. - On request of any interested person and payment of the prescribed fee, the Director is authorized to correct any mistake in a patent of a formal and clerical nature, not incurred through the fault of the Office. (Sec. 26, R.A. No. 165a) Section 59. Changes in Patents. - 59.1. The owner of a patent shall have the right to request the Bureau to make the changes in the patent in order to: (a) Limit the extent of the protection conferred by it; (b) Correct obvious mistakes or to correct clerical errors; and
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(c) Correct mistakes or errors, other than those referred to in letter (b), made in good faith: Provided, That where the change would result in a broadening of the extent of protection conferred by the patent, no request may be made after the expiration of two (2) years from the grant of a patent and the change shall not affect the rights of any third party which has relied on the patent, as published. 59.2. No change in the patent shall be permitted under this section, where the change would result in the disclosure contained in the patent going beyond the disclosure contained in the application filed. 59.3. If, and to the extent to which the Office changes the patent according to this section, it shall publish the same. (n) Section 60. Form and Publication of Amendment. - An amendment or correction of a patent shall be accomplished by a certificate of such amendment or correction, authenticated by the seal of the Office and signed by the Director, which certificate shall be attached to the patent. Notice of such amendment or correction shall be published in the IPO Gazette and copies of the patent kept or furnished by the Office shall include a copy of the certificate of amendment or correction. (Sec. 27, R.A. No. 165) CHAPTER VI CANCELLATION OF PATENTS AND SUBSTITUTION OF PATENTEE Section 61. Cancellation of Patents. - 61.1. Any interested person may, upon payment of the required fee, petition to cancel the patent or any claim thereof, or parts of the claim, on any of the following grounds: (a) That what is claimed as the invention is not new or Patentable; (b) That the patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by any person skilled in the art; or (c) That the patent is contrary to public order or morality. 61.2. Where the grounds for cancellation relate to some of the claims or parts of the claim, cancellation may be effected to such extent only. (Secs. 28 and 29, R.A. No. 165a) Section 62. Requirement of the Petition. - The petition for cancellation shall be in writing, verified by the petitioner or by any person in his behalf who knows the facts, specify the grounds upon which it is based, include a statement of the facts to be relied upon, and filed with the Office. Copies of printed publications or of patents of other countries, and other supporting documents mentioned in the petition shall be attached thereto, together with the translation thereof in English, if not in the English language. (Sec. 30, R.A. No. 165) Section 63. Notice of Hearing. - Upon filing of a petition for cancellation, the Director of Legal Affairs shall forthwith serve notice of the filing thereof upon the patentee and all persons having grants or licenses, or any other right, title or interest in and to the patent and the invention covered thereby, as appears of record in the Office, and of notice of the date of hearing thereon on such persons and the petitioner. Notice of the filing of the petition shall be published in the IPO Gazette. (Sec. 31, R.A. No. 165a) Section 64. Committee of Three. - In cases involving highly technical issues, on motion of any party, the Director of Legal Affairs may order that the petition be heard and decided by a committee composed of the Director of Legal Affairs as chairman and two (2) members who have the experience or expertise in the field of technology to which the patent sought to be cancelled relates. The decision of the committee shall be appealable to the Director General. (n) Section 65. Cancellation of the Patent. - 65.1. If the Committee finds that a case for cancellation has been proved, it shall order the patent or any specified claim or claims thereof cancelled. 65.2. If the Committee finds that, taking into consideration the amendment made by the patentee during the cancellation proceedings, the patent and the invention to which it relates meet the requirement of this Act, it may decide to maintain the patent as amended: Provided, That the fee for printing of a new patent is paid within the time limit prescribed in the Regulations. 65.3. If the fee for the printing of a new patent is not paid in due time, the patent should be revoked. 65.4. If the patent is amended under Subsection 65.2 hereof, the Bureau shall, at the same time as it publishes the mention of the cancellation decision, publish the abstract, representative claims and drawings indicating clearly what the amendments consist of. (n) Section 66. Effect of Cancellation of Patent or Claim. - The rights conferred by the patent or any specified claim or claims cancelled shall terminate. Notice of the cancellation shall be published in the IPO Gazette. Unless restrained by the Director General, the decision or order to cancel by Director of Legal Affairs shall be immediately executory even pending appeal. (Sec. 32, R.A. No. 165a)
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CHAPTER VII REMEDIES OF A PERSON WITH A RIGHT TO A PATENT Section 67. Patent Application by Persons Not Having the Right to a Patent. . - 67.1. If a person referred to in Section 29 other than the applicant, is declared by final court order or decision as having the right to the patent, such person may, within three (3) months after the decision has become final: (a) Prosecute the application as his own application in place of the applicant; (b) File a new patent application in respect of the same invention; (c) Request that the application be refused; or (d) Seek cancellation of the patent, if one has already been issued. 67.2. The provisions of Subsection 38.2 shall apply mutatis mutandis to a new application filed under Subsection 67. 1(b). (n) Section 68. Remedies of the True and Actual Inventor. - If a person, who was deprived of the patent without his consent or through fraud is declared by final court order or decision to be the true and actual inventor, the court shall order for his substitution as patentee, or at the option of the true inventor, cancel the patent, and award actual and other damages in his favor if warranted by the circumstances. (Sec. 33, R.A. No. 165a) Section 69. Publication of the Court Order. - The court shall furnish the Office a copy of the order or decision referred to in Sections 67 and 68, which shall be published in the IPO Gazette within three (3) months from the date such order or decision became final and executory, and shall be recorded in the register of the Office. (n) Section 70. Time to File Action in Court. - The actions indicated in Sections 67 and 68 shall be filed within one (1) year from the date of publication made in accordance with Sections 44 and 51, respectively. (n) CHAPTER VIII RIGHTS OF PATENTEES AND INFRINGEMENT OF PATENTS Section 71. Rights Conferred by Patent. - 71.1. A patent shall confer on its owner the following exclusive rights: (a) Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product; (b) Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process. 71.2. Patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same. (Sec. 37, R.A. No. 165a) Section 72. Limitations of Patent Rights. - The owner of a patent has no right to prevent third parties from performing, without his authorization, the acts referred to in Section 71 hereof in the following circumstances: 72.1. Using a patented product which has been put on the market in the Philippines by the owner of the product, or with his express consent, insofar as such use is performed after that product has been so put on the said market; 72.2. Where the act is done privately and on a non-commercial scale or for a non-commercial purpose: Provided, That it does not significantly prejudice the economic interests of the owner of the patent; 72.3. Where the act consists of making or using exclusively for the purpose of experiments that relate to the subject matter of the patented invention; 72.4. Where the act consists of the preparation for individual cases, in a pharmacy or by a medical professional, of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared; 72.5. Where the invention is used in any ship, vessel, aircraft, or land vehicle of any other country entering the territory of the Philippines temporarily or accidentally: Provided, That such invention is used exclusively for the needs of the ship, vessel, aircraft, or land vehicle and not used for the manufacturing of anything to be sold within the Philippines. (Secs. 38 and 39, R.A. No. 165a)
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Section 73. Prior User. - 73.1. Notwithstanding Section 72 hereof, any prior user, who, in good faith was using the invention or has undertaken serious preparations to use the invention in his enterprise or business, before the filing date or priority date of the application on which a patent is granted, shall have the right to continue the use thereof as envisaged in such preparations within the territory where the patent produces its effect. 73.2. The right of the prior user may only be transferred or assigned together with his enterprise or business, or with that part of his enterprise or business in which the use or preparations for use have been made. (Sec. 40, R.A. No. 165a) Section 74. Use of Invention by Government. - 74.1. A Government agency or third person authorized by the Government may exploit the invention even without agreement of the patent owner where: (a) The public interest, in particular, national security, nutrition, health or the development of other sectors, as determined by the appropriate agency of the government, so requires; or (b) A judicial or administrative body has determined that the manner of exploitation, by the owner of the patent or his licensee is anti-competitive. 74.2. The use by the Government, or third person authorized by the Government shall be subject, mutatis mutandis, to the conditions set forth in Sections 95 to 97 and 100 to 102. (Sec. 41, R.A. No. 165a) Section 75. Extent of Protection and Interpretation of Claims. - 75.1. The extent of protection conferred by the patent shall be determined by the claims, which are to be interpreted in the light of the description and drawings. 75.2. For the purpose of determining the extent of protection conferred by the patent, due account shall be taken of elements which are equivalent to the elements expressed in the claims, so that a claim shall be considered to cover not only all the elements as expressed therein, but also equivalents. (n) Section 76. Civil Action for Infringement. - 76.1. The making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of the patentee constitutes patent infringement. 76.2. Any patentee, or anyone possessing any right, title or interest in and to the patented invention, whose rights have been infringed, may bring a civil action before a court of competent jurisdiction, to recover from the infringer such damages sustained thereby, plus attorney's fees and other expenses of litigation, and to secure an injunction for the protection of his rights. 76.3. If the damages are inadequate or cannot be readily ascertained with reasonable certainty, the court may award by way of damages a sum equivalent to reasonable royalty. 76.4. The court may, according to the circumstances of the case, award damages in a sum above the amount found as actual damages sustained: Provided, That the award does not exceed three (3) times the amount of such actual damages. 76.5. The court may, in its discretion, order that the infringing goods, materials and implements predominantly used in the infringement be disposed of outside the channels of commerce or destroyed, without compensation. 76.6. Anyone who actively induces the infringement of a patent or provides the infringer with a component of a patented product or of a product produced because of a patented process knowing it to be especially adopted for infringing the patented invention and not suitable for substantial non-infringing use shall be liable as a contributory infringer and shall be jointly and severally liable with the infringer. (Sec. 42, R.A. No. 165a) Section 77. Infringement Action by a Foreign National. - Any foreign national or juridical entity who meets the requirements of Section 3 and not engaged in business in the Philippines, to which a patent has been granted or assigned under this Act, may bring an action for infringement of patent, whether or not it is licensed to do business in the Philippines under existing law. (Sec. 41-A, R.A. No. 165a) Section 78. Process Patents; Burden of Proof . - If the subject matter of a patent is a process for obtaining a product, any identical product shall be presumed to have been obtained through the use of the patented process if the product is new or there is substantial likelihood that the identical product was made by the process and the owner of the patent has been unable despite reasonable efforts, to determine the process actually used. In ordering the defendant to prove that the process to obtain the identical product is different from the patented process, the court shall adopt measures to protect, as far as practicable, his manufacturing and business secrets. (n) Section 79. Limitation of Action for Damages. - No damages can be recovered for acts of infringement committed more than four (4) years before the institution of the action for infringement. (Sec. 43, R.A. No. 165)
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Section 80. Damages, Requirement of Notice. - Damages cannot be recovered for acts of infringement committed before the infringer had known, or had reasonable grounds to know of the patent. It is presumed that the infringer had known of the patent if on the patented product, or on the container or package in which the article is supplied to the public, or on the advertising material relating to the patented product or process, are placed the words "Philippine Patent" with the number of the patent. (Sec. 44, R.A. No. 165a) Section 81. Defenses in Action for Infringement. - In an action for infringement, the defendant, in addition to other defenses available to him, may show the invalidity of the patent, or any claim thereof, on any of the grounds on which a petition of cancellation can be brought under Section 61 hereof. (Sec. 45, R.A. No. 165) Section 82. Patent Found Invalid May be Cancelled. - In an action for infringement, if the court shall find the patent or any claim to be invalid, it shall cancel the same, and the Director of Legal Affairs upon receipt of the final judgment of cancellation by the court, shall record that fact in the register of the Office and shall publish a notice to that effect in the IPO Gazette. (Sec. 46, R.A. No. 165a) Section 83. Assessor in Infringement Action. - 83.1. Two (2) or more assessors may be appointed by the court. The assessors shall be possessed of the necessary scientific and technical knowledge required by the subject matter in litigation. Either party may challenge the fitness of any assessor proposed for appointment. 83.2. Each assessor shall receive a compensation in an amount to be fixed by the court and advanced by the complaining party, which shall be awarded as part of his costs should he prevail in the action. (Sec. 47, R.A. No. 165a) Section 84. Criminal Action for Repetition of Infringement. - If infringement is repeated by the infringer or by anyone in connivance with him after finality of the judgment of the court against the infringer, the offenders shall, without prejudice to the institution of a civil action for damages, be criminally liable therefor and, upon conviction, shall suffer imprisonment for the period of not less than six (6) months but not more than three (3) years and/or a fine of not less than One hundred thousand pesos (P100,000) but not more than Three hundred thousand pesos (P300,000), at the discretion of the court. The criminal action herein provided shall prescribe in three (3) years from date of the commission of the crime. (Sec. 48, R.A. No. 165a) CHAPTER IX VOLUNTARY LICENSING Section 85. Voluntary License Contract. - To encourage the transfer and dissemination of technology, prevent or control practices and conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition and trade, all technology transfer arrangements shall comply with the provisions of this Chapter. (n) Section 86. Jurisdiction to Settle Disputes on Royalties. - The Director of the Documentation, Information and Technology Transfer Bureau shall exercise quasi-judicial jurisdiction in the settlement of disputes between parties to a technology transfer arrangement arising from technology transfer payments, including the fixing of appropriate amount or rate of royalty. (n) Section 87. Prohibited Clauses. - Except in cases under Section 91, the following provisions shall be deemed prima facie to have an adverse effect on competition and trade: 87.1. Those which impose upon the licensee the obligation to acquire from a specific source capital goods, intermediate products, raw materials, and other technologies, or of permanently employing personnel indicated by the licensor; 87.2. Those pursuant to which the licensor reserves the right to fix the sale or resale prices of the products manufactured on the basis of the license; 87.3. Those that contain restrictions regarding the volume and structure of production; 87.4. Those that prohibit the use of competitive technologies in a non-exclusive technology transfer agreement; 87.5. Those that establish a full or partial purchase option in favor of the licensor; 87.6. Those that obligate the licensee to transfer for free to the licensor the inventions or improvements that may be obtained through the use of the licensed technology; 87.7. Those that require payment of royalties to the owners of patents for patents which are not used; 87.8. Those that prohibit the licensee to export the licensed product unless justified for the protection of the legitimate interest of the licensor such as exports to countries where exclusive licenses to manufacture and/or distribute the licensed product(s) have already been granted;
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87.9. Those which restrict the use of the technology supplied after the expiration of the technology transfer arrangement, except in cases of early termination of the technology transfer arrangement due to reason(s) attributable to the licensee; 87.10. Those which require payments for patents and other industrial property rights after their expiration, termination arrangement; 87.11. Those which require that the technology recipient shall not contest the validity of any of the patents of the technology supplier; 87.12. Those which restrict the research and development activities of the licensee designed to absorb and adapt the transferred technology to local conditions or to initiate research and development programs in connection with new products, processes or equipment; 87.13. Those which prevent the licensee from adapting the imported technology to local conditions, or introducing innovation to it, as long as it does not impair the quality standards prescribed by the licensor; 87.14. Those which exempt the licensor for liability for non-fulfilment of his responsibilities under the technology transfer arrangement and/or liability arising from third party suits brought about by the use of the licensed product or the licensed technology; and 87.15. Other clauses with equivalent effects. (Sec. 33-C (2), R.A 165a) Section 88. Mandatory Provisions. - The following provisions shall be included in voluntary license contracts: 88.1. That the laws of the Philippines shall govern the interpretation of the same and in the event of litigation, the venue shall be the proper court in the place where the licensee has its principal office; 88.2. Continued access to improvements in techniques and processes related to the technology shall be made available during the period of the technology transfer arrangement; 88.3. In the event the technology transfer arrangement shall provide for arbitration, the Procedure of Arbitration of the Arbitration Law of the Philippines or the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) or the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) shall apply and the venue of arbitration shall be the Philippines or any neutral country; and 88.4. The Philippine taxes on all payments relating to the technology transfer arrangement shall be borne by the licensor. (n) Section 89. Rights of Licensor. - In the absence of any provision to the contrary in the technology transfer arrangement, the grant of a license shall not prevent the licensor from granting further licenses to third person nor from exploiting the subject matter of the technology transfer arrangement himself. (Sec. 33-B, R.A. 165a) Section 90. Rights of Licensee. - The licensee shall be entitled to exploit the subject matter of the technology transfer arrangement during the whole term of the technology transfer arrangement. (Sec. 33-C (1), R.A. 165a) Section 91. Exceptional Cases. - In exceptional or meritorious cases where substantial benefits will accrue to the economy, such as high technology content, increase in foreign exchange earnings, employment generation, regional dispersal of industries and/or substitution with or use of local raw materials, or in the case of Board of Investments, registered companies with pioneer status, exemption from any of the above requirements may be allowed by the Documentation, Information and Technology Transfer Bureau after evaluation thereof on a case by case basis. (n) Section 92. Non-Registration with the Documentation, Information and Technology Transfer Bureau. Technology transfer arrangements that conform with the provisions of Sections 86 and 87 need not be registered with the Documentation, Information and Technology Transfer Bureau. Non-conformance with any of the provisions of Sections 87 and 88, however, shall automatically render the technology transfer arrangement unenforceable, unless said technology transfer arrangement is approved and registered with the Documentation, Information and Technology Transfer Bureau under the provisions of Section 91 on exceptional cases. (n) CHAPTER X COMPULSORY LICENSING Section 93. Grounds for Compulsory Licensing. - The Director of Legal Affairs may grant a license to exploit a patented invention, even without the agreement of the patent owner, in favor of any person who has shown his capability to exploit the invention, under any of the following circumstances: 93.1. National emergency or other circumstances of extreme urgency;
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93.2. Where the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy as determined by the appropriate agency of the Government, so requires; or 93.3. Where a judicial or administrative body has determined that the manner of exploitation by the owner of the patent or his licensee is anti-competitive; or 93.4. In case of public non-commercial use of the patent by the patentee, without satisfactory reason; 93.5. If the patented invention is not being worked in the Philippines on a commercial scale, although capable of being worked, without satisfactory reason: Provided, That the importation of the patented article shall constitute working or using the patent. (Secs. 34, 34-A, 34-B, R.A. No. 165a) Section 94. Period for Filing a Petition for a Compulsory License. - 94.1. A compulsory license may not be applied for on the ground stated in Subsection 93.5 before the expiration of a period of four (4) years from the date of filing of the application or three (3) years from the date of the patent whichever period expires last. 94.2. A compulsory license which is applied for on any of the grounds stated in Subsections 93.2, 93.3, and 93.4 and Section 97 may be applied for at any time after the grant of the patent. (Sec. 34(1), R.A. No. 165) Section 95. Requirement to Obtain a License on Reasonable Commercial Terms. - 95.1. The license will only be granted after the petitioner has made efforts to obtain authorization from the patent owner on reasonable commercial terms and conditions but such efforts have not been successful within a reasonable period of time. 95.2. The requirement under Subsection 95.1 shall not apply in the following cases: (a) Where the petition for compulsory license seeks to remedy a practice determined after judicial or administrative process to be anti-competitive; (b) In situations of national emergency or other circumstances of extreme urgency; (c) In cases of public non-commercial use. 95.3. In situations of national emergency or other circumstances of extreme urgency, the right holder shall be notified as soon as reasonably practicable. 95.4. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly. (n) Section 96. Compulsory Licensing of Patents Involving Semi-Conductor Technology. - In the case of compulsory licensing of patents involving semi-conductor technology, the license may only be granted in case of public noncommercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive. (n) Section 97. Compulsory License Based on Interdependence of Patents. - If the invention protected by a patent, hereafter referred to as the "second patent," within the country cannot be worked without infringing another patent, hereafter referred to as the "first patent," granted on a prior application or benefiting from an earlier priority, a compulsory license may be granted to the owner of the second patent to the extent necessary for the working of his invention, subject to the following conditions: 97.1. The invention claimed in the second patent involves an important technical advance of considerable economic significance in relation to the first patent; 97.2. The owner of the first patent shall be entitled to a cross-license on reasonable terms to use the invention claimed in the second patent; 97.3. The use authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent; and 97.4. The terms and conditions of Sections 95, 96 and 98 to 100 of this Act. (Sec. 34-C, R.A. No. 165a) Section 98. Form and Contents of Petition. - The petition for compulsory licensing must be in writing, verified by the petitioner and accompanied by payment of the required filing fee. It shall contain the name and address of the petitioner as well as those of the respondents, the number and date of issue of the patent in connection with which compulsory license is sought, the name of the patentee, the title of the invention, the statutory grounds upon which compulsory license is sought, the ultimate facts constituting the petitioner's cause of action, and the relief prayed for. (Sec. 34-D, R.A. No. 165)
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Section 99. Notice of Hearing. - 99.1. Upon filing of a petition, the Director of Legal Affairs shall forthwith serve notice of the filing thereof upon the patent owner and all persons having grants or licenses, or any other right, title or interest in and to the patent and invention covered thereby as appears of record in the Office, and of notice of the date of hearing thereon, on such persons and petitioner. The resident agent or representative appointed in accordance with Section 33 hereof, shall be bound to accept service of notice of the filing of the petition within the meaning of this Section. 99.2. In every case, the notice shall be published by the said Office in a newspaper of general circulation, once a week for three (3) consecutive weeks and once in the IPO Gazette at applicant's expense. (Sec. 34-E, R.A. No. 165) Section 100. Terms and Conditions of Compulsory License. - The basic terms and conditions including the rate of royalties of a compulsory license shall be fixed by the Director of Legal Affairs subject to the following conditions: 100.1. The scope and duration of such license shall be limited to the purpose for which it was authorized; 100.2. The license shall be non-exclusive; 100.3. The license shall be non-assignable, except with that part of the enterprise or business with which the invention is being exploited; 100.4. Use of the subject matter of the license shall be devoted predominantly for the supply of the Philippine market: Provided, That this limitation shall not apply where the grant of the license is based on the ground that the patentee's manner of exploiting the patent is determined by judicial or administrative process, to be anti-competitive. 100.5. The license may be terminated upon proper showing that circumstances which led to its grant have ceased to exist and are unlikely to recur: Provided, That adequate protection shall be afforded to the legitimate interest of the licensee; and 100.6. The patentee shall be paid adequate remuneration taking into account the economic value of the grant or authorization, except that in cases where the license was granted to remedy a practice which was determined after judicial or administrative process, to be anti-competitive, the need to correct the anti-competitive practice may be taken into account in fixing the amount of remuneration. (Sec. 35-B, R.A. No. 165a) Section 101. Amendment, Cancellation, Surrender of Compulsory License. - 101.1. Upon the request of the patentee or the licensee, the Director of Legal Affairs may amend the decision granting the compulsory license, upon proper showing of new facts or circumstances justifying such amendment. 101.2. Upon the request of the patentee, the said Director may cancel the compulsory license: (a) If the ground for the grant of the compulsory license no longer exists and is unlikely to recur; (b) If the licensee has neither begun to supply the domestic market nor made serious preparation therefor; (c) If the licensee has not complied with the prescribed terms of the license; 101.3. The licensee may surrender the license by a written declaration submitted to the Office. 101.4. The said Director shall cause the amendment, surrender, or cancellation in the Register, notify the patentee, and/or the licensee, and cause notice thereof to be published in the IPO Gazette. (Sec. 35-D, R.A. No. 165a) Section 102. Licensee's Exemption from Liability. - Any person who works a patented product, substance and/or process under a license granted under this Chapter, shall be free from any liability for infringement: Provided however, That in the case of voluntary licensing, no collusion with the licensor is proven. This is without prejudice to the right of the rightful owner of the patent to recover from the licensor whatever he may have received as royalties under the license. (Sec. 35-E, R.A. No. 165a) CHAPTER XI ASSIGNMENT AND TRANSMISSION OF RIGHTS Section 103. Transmission of Rights. - 103.1. Patents or applications for patents and invention to which they relate, shall be protected in the same way as the rights of other property under the Civil Code. 103.2. Inventions and any right, title or interest in and to patents and inventions covered thereby, may be assigned or transmitted by inheritance or bequest or may be the subject of a license contract. (Sec. 50, R.A. No. 165a)
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Section 104. Assignment of Inventions. - An assignment may be of the entire right, title or interest in and to the patent and the invention covered thereby, or of an undivided share of the entire patent and invention, in which event the parties become joint owners thereof. An assignment may be limited to a specified territory. (Sec. 51, R.A. No. 165) Section 105. Form of Assignment. - The assignment must be in writing, acknowledged before a notary public or other officer authorized to administer oath or perform notarial acts, and certified under the hand and official seal of the notary or such other officer. (Sec. 52, R.A. No. 165) Section 106. Recording. - 106.1. The Office shall record assignments, licenses and other instruments relating to the transmission of any right, title or interest in and to inventions, and patents or application for patents or inventions to which they relate, which are presented in due form to the Office for registration, in books and records kept for the purpose. The original documents together with a signed duplicate thereof shall be filed, and the contents thereof should be kept confidential. If the original is not available, an authenticated copy thereof in duplicate may be filed. Upon recording, the Office shall retain the duplicate, return the original or the authenticated copy to the party who filed the same and notice of the recording shall be published in the IPO Gazette. 106.2. Such instruments shall be void as against any subsequent purchaser or mortgagee for valuable consideration and without notice, unless, it is so recorded in the Office, within three (3) months from the date of said instrument, or prior to the subsequent purchase or mortgage. (Sec. 53, R.A. No. 165a) Section 107. Rights of Joint Owners. - If two (2) or more persons jointly own a patent and the invention covered thereby, either by the issuance of the patent in their joint favor or by reason of the assignment of an undivided share in the patent and invention or by reason of the succession in title to such share, each of the joint owners shall be entitled to personally make, use, sell, or import the invention for his own profit: Provided, however, That neither of the joint owners shall be entitled to grant licenses or to assign his right, title or interest or part thereof without the consent of the other owner or owners, or without proportionally dividing the proceeds with such other owner or owners. (Sec. 54, R.A. No. 165) CHAPTER XII REGISTRATION OF UTILITY MODELS Section 108. Applicability of Provisions Relating to Patents. - 108.1. Subject to Section 109, the provisions governing patents shall apply, mutatis mutandis, to the registration of utility models. 108.2. Where the right to a patent conflicts with the right to a utility model registration in the case referred to in Section 29, the said provision shall apply as if the word "patent" were replaced by the words "patent or utility model registration". (Sec. 55, R.A. No. 165a) Section 109. Special Provisions Relating to Utility Models. - 109.1. (a) An invention qualifies for registration as a utility model if it is new and industrially applicable. (b) Section 21, "Patentable Inventions", shall apply except the reference to inventive step as a condition of protection. 109.2. Sections 43 to 49 shall not apply in the case of applications for registration of a utility model. 109.3. A utility model registration shall expire, without any possibility of renewal, at the end of the seventh year after the date of the filing of the application. 109.4. In proceedings under Sections 61 to 64, the utility model registration shall be canceled on the following grounds: (a) That the claimed invention does not qualify for registration as a utility model and does not meet the requirements of registrability, in particular having regard to Subsection 109.1 and Sections 22, 23, 24 and 27; (b) That the description and the claims do not comply with the prescribed requirements; (c) That any drawing which is necessary for the understanding of the invention has not been furnished; (d) That the owner of the utility model registration is not the inventor or his successor in title. (Secs. 55, 56, and 57, R.A. No. 165a) Section 110. Conversion of Patent Applications or Applications for Utility Model Registration. - 110.1. At any time before the grant or refusal of a patent, an applicant for a patent may, upon payment of the prescribed fee, convert his application into an application for registration of a utility model, which shall be accorded the filing date of the initial application. An application may be converted only once.
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110.2. At any time before the grant or refusal of a utility model registration, an applicant for a utility model registration may, upon payment of the prescribed fee, convert his application into a patent application, which shall be accorded the filing date of the initial application. (Sec. 58, R.A. No. 165a) Section 111. Prohibition against Filing of Parallel Applications. - An applicant may not file two (2) applications for the same subject, one for utility model registration and the other for the grant of a patent whether simultaneously or consecutively. (Sec. 59, R.A. No. 165a) CHAPTER XIII INDUSTRIAL DESIGN Section 112. Definition of Industrial Design. - An industrial design is any composition of lines or colors or any three-dimensional form, whether or not associated-with lines or colors: Provided, That such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft. (Sec. 55, R.A. No. 165a) Section 113. Substantive Conditions for Protection. - 113.1. Only industrial designs that are new or original shall benefit from protection under this Act. 113.2. Industrial designs dictated essentially by technical or functional considerations to obtain a technical result or those that are contrary to public order, health or morals shall not be protected. (n) Section 114. Contents of the Application. - 114.1. Every application for registration of an industrial design shall contain: (a) A request for registration of the industrial design; (b) Information identifying the applicant; (c) An indication of the kind of article of manufacture or handicraft to which the design shall be applied; (d) A representation of the article of manufacture or handicraft by way of drawings, photographs or other adequate graphic representation of the design as applied to the article of manufacture or handicraft which clearly and fully discloses those features for which design protection is claimed; and (e) The name and address of the creator, or where the applicant is not the creator, a statement indicating the origin of the right to the industrial design registration. 114.2. The application may be accompanied by a specimen of the article embodying the industrial design and shall be subject to the payment of the prescribed fee.(n) Section 115. Several Industrial Designs in One Application. - Two (2) or more industrial designs may be the subject of the same application: Provided, That they relate to the same sub-class of the International Classification or to the same set or composition of articles. (n) Section 116. Examination. - 116.1. The Office shall accord as the filing date the date of receipt of the application containing indications allowing the identity of the applicant to be established and a representation of the article embodying the industrial design or a pictorial representation thereof. 116.2. If the application does not meet these requirements the filing date should be that date when all the elements specified in Section 105 are filed or the mistakes corrected. Otherwise if the requirements are not complied within the prescribed period, the application shall be considered withdrawn. 116.3. After the application has been accorded a filing date and the required fees paid on time, the applicant shall comply with the requirements of Section 114 within the prescribed period, otherwise the application shall be considered withdrawn. 116.4. The Office shall examine whether the industrial design complies with requirements of Section 112 and Subsections 113.2 and 113.3. (n) Section 117. Registration. - 117.1. Where the Office finds that the conditions referred to in Section 113 are fulfilled, it shall order that registration be effected in the industrial design register and cause the issuance of an industrial design certificate of registration, otherwise, it shall refuse the application. 117.2. The form and contents of an industrial design certificate shall be established by the Regulations: Provided, That the name and address of the creator shall be mentioned in every case.
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117.3. Registration shall be published in the form and within the period fixed by the Regulations. 117.4. The Office shall record in the register any change in the identity of the proprietor of the industrial design or his representative, if proof thereof is furnished to it. A fee shall be paid, with the request to record the change in the identity of the proprietor. If the fee is not paid, the request shall be deemed not to have been filed. In such case, the former proprietor and the former representative shall remain subject to the rights and obligations as provided in this Act. 117.5. Anyone may inspect the Register and the files of registered industrial designs including the files of cancellation proceedings. (n) Section 118. The Term of Industrial Design Registration. - 118.1 The registration of an industrial design shall be for a period of five (5) years from the filing date of the application. 118.2. The registration of an industrial design may be renewed for not more than two (2) consecutive periods of five (5) years each, by paying the renewal fee. 118.3. The renewal fee shall be paid within twelve (12) months preceding the expiration of the period of registration. However, a grace period of six (6) months shall be granted for payment of the fees after such expiration, upon payment of a surcharge 118.4. The Regulations shall fix the amount of renewal fee, the surcharge and other requirements regarding the recording of renewals of registration. Section 119. Application of Other Sections and Chapters. - 119.1. The following provisions relating to patents shall apply mutatis mutandis to an industrial design registration: Section 21
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Novelty:
Section 24
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Prior art: Provided, That the disclosure is contained in printed documents or in any tangible form;
Section 25
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Non-prejudicial Disclosure;
Section 27
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Inventions Created Pursuant to a Commission;
Section 28
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Right to a Patent;
Section 29
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First to File Rule;
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Right of Priority: Provided, That the application for industrial design shall be filed within six (6) months from the earliest filing date of the corresponding foreign application;
Section 33
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Appointment of Agent or Representative;
Section 51
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Refusal of the Application;
Sections 56 to 60
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Surrender, Correction of and Changes in Patent;
CHAPTER VII
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Remedies of a Person with a Right to Patent;
CHAPTER VIII
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Rights of Patentees and Infringement of Patents; and
CHAPTER XI
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Assignment and Transmission of Rights.
Section 31
119.2. If the essential elements of an industrial design which is the subject of an application have been obtained from the creation of another person without his consent, protection under this Chapter cannot be invoked against the injured party. (n) Section 120. Cancellation of Design Registration. - 120.1. At any time during the term of the industrial design registration, any person upon payment of the required fee, may petition the Director of Legal Affairs to cancel the industrial design on any of the following grounds: (a) If the subject matter of the industrial design is not registrable within the terms of Sections 112 and 113; (b) If the subject matter is not new; or (c) If the subject matter of the industrial design extends beyond the content of the application as originally filed.
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120.2. Where the grounds for cancellation relate to a part of the industrial design, cancellation may be effected to such extent only. The restriction may be effected in the form of an alteration of the effected features of the design. (n) PART III THE LAW ON TRADEMARKS, SERVICE MARKS AND TRADE NAMES Section 121. Definitions. - As used in Part III, the following terms have the following meanings: 121.1. "Mark" means any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods; (Sec. 38, R.A. No. 166a) 121.2. "Collective mark" means any visible sign designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic, including the quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective mark; (Sec. 40, R.A. No. 166a) 121.3. "Trade name" means the name or designation identifying or distinguishing an enterprise; (Sec. 38, R.A. No. 166a) 121.4. "Bureau" means the Bureau of Trademarks; 121.5. "Director" means the Director of Trademarks; 121.6. "Regulations" means the Rules of Practice in Trademarks and Service Marks formulated by the Director of Trademarks and approved by the Director General; and 121.7. "Examiner" means the trademark examiner. (Sec. 38, R.A. No. 166a) Section 122. How Marks are Acquired. - The rights in a mark shall be acquired through registration made validly in accordance with the provisions of this law. (Sec. 2-A, R A. No. 166a) Section 123. Registrability. - 123.1. A mark cannot be registered if it: (a) Consists of immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute; (b) Consists of the flag or coat of arms or other insignia of the Philippines or any of its political subdivisions, or of any foreign nation, or any simulation thereof; (c) Consists of a name, portrait or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the Philippines, during the life of his widow, if any, except by written consent of the widow; (d) Is identical with a registered mark belonging to a different proprietor or a mark with an earlier filing or priority date, in respect of: (i) The same goods or services, or (ii) Closely related goods or services, or (iii) If it nearly resembles such a mark as to be likely to deceive or cause confusion; (e) Is identical with, or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well-known internationally and in the Philippines, whether or not it is registered here, as being already the mark of a person other than the applicant for registration, and used for identical or similar goods or services: Provided, That in determining whether a mark is well-known, account shall be taken of the knowledge of the relevant sector of the public, rather than of the public at large, including knowledge in the Philippines which has been obtained as a result of the promotion of the mark; (f) Is identical with, or confusingly similar to, or constitutes a translation of a mark considered well-known in accordance with the preceding paragraph, which is registered in the Philippines with respect to goods or services which are not similar to those with respect to which registration is applied for: Provided, That use of the mark in relation to those goods or services would indicate a connection between those goods or services, and the owner of the registered mark: Provided further, That the interests of the owner of the registered mark are likely to be damaged by such use;
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(g) Is likely to mislead the public, particularly as to the nature, quality, characteristics or geographical origin of the goods or services; (h) Consists exclusively of signs that are generic for the goods or services that they seek to identify; (i) Consists exclusively of signs or of indications that have become customary or usual to designate the goods or services in everyday language or in bona fide and established trade practice; (j) Consists exclusively of signs or of indications that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time or production of the goods or rendering of the services, or other characteristics of the goods or services; (k) Consists of shapes that may be necessitated by technical factors or by the nature of the goods themselves or factors that affect their intrinsic value; (l) Consists of color alone, unless defined by a given form; or (m) Is contrary to public order or morality. 123.2. As regards signs or devices mentioned in paragraphs (j), (k), and (l), nothing shall prevent the registration of any such sign or device which has become distinctive in relation to the goods for which registration is requested as a result of the use that have been made of it in commerce in the Philippines. The Office may accept as prima facie evidence that the mark has become distinctive, as used in connection with the applicant's goods or services in commerce, proof of substantially exclusive and continuous use thereof by the applicant in commerce in the Philippines for five (5) years before the date on which the claim of distinctiveness is made. 123.3. The nature of the goods to which the mark is applied will not constitute an obstacle to registration. (Sec. 4, R.A. No. 166a) Section 124. Requirements of Application. - 124.1. The application for the registration of the mark shall be in Filipino or in English and shall contain the following: (a) A request for registration; (b) The name and address of the applicant; (c) The name of a State of which the applicant is a national or where he has domicile; and the name of a State in which the applicant has a real and effective industrial or commercial establishment, if any; (d) Where the applicant is a juridical entity, the law under which it is organized and existing; (e) The appointment of an agent or representative, if the applicant is not domiciled in the Philippines; (f) Where the applicant claims the priority of an earlier application, an indication of: i) The name of the State with whose national office the earlier application was filed or if filed with an office other than a national office, the name of that office, ii) The date on which the earlier application was filed, and iii) Where available, the application number of the earlier application; (g) Where the applicant claims color as a distinctive feature of the mark, a statement to that effect as well as the name or names of the color or colors claimed and an indication, in respect of each color, of the principal parts of the mark which are in that color; (h) Where the mark is a three-dimensional mark, a statement to that effect; (i) One or more reproductions of the mark, as prescribed in the Regulations; (j) A transliteration or translation of the mark or of some parts of the mark, as prescribed in the Regulations; (k) The names of the goods or services for which the registration is sought, grouped according to the classes of the Nice Classification, together with the number of the class of the said Classification to which each group of goods or services belongs; and
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(l) A signature by, or other self-identification of, the applicant or his representative. 124.2. The applicant or the registrant shall file a declaration of actual use of the mark with evidence to that effect, as prescribed by the Regulations within three (3) years from the filing date of the application. Otherwise, the application shall be refused or the mark shall be removed from the Register by the Director. 124.3. One (1) application may relate to several goods and/or services, whether they belong to one (1) class or to several classes of the Nice Classification. 124.4. If during the examination of the application, the Office finds factual basis to reasonably doubt the veracity of any indication or element in the application, it may require the applicant to submit sufficient evidence to remove the doubt. (Sec. 5, R.A. No. 166a) Section 125. Representation; Address for Service. - If the applicant is not domiciled or has no real and effective commercial establishment in the Philippines, he shall designate by a written document filed in the Office, the name and address of a Philippine resident who may be served notices or process in proceedings affecting the mark. Such notices or services may be served upon the person so designated by leaving a copy thereof at the address specified in the last designation filed. If the person so designated cannot be found at the address given in the last designation, such notice or process may be served upon the Director. (Sec. 3, R.A. No. 166a) Section 126. Disclaimers. - The Office may allow or require the applicant to disclaim an unregistrable component of an otherwise registrable mark but such disclaimer shall not prejudice or affect the applicant's or owner's rights then existing or thereafter arising in the disclaimed matter, nor such shall disclaimer prejudice or affect the applicant's or owner's right on another application of later date if the disclaimed matter became distinctive of the applicant's or owner's goods, business or services. (Sec. 13, R.A. No. 166a) Section 127. Filing Date. - 127.1. Requirements. - The filing date of an application shall be the date on which the Office received the following indications and elements in English or Filipino: (a) An express or implicit indication that the registration of a mark is sought; (b) The identity of the applicant; (c) Indications sufficient to contact the applicant or his representative, if any; (d) A reproduction of the mark whose registration is sought; and (e) The list of the goods or services for which the registration is sought. 127.2. No filing date shall be accorded until the required fee is paid. (n) Section 128. Single Registration for Goods and/or Services. - Where goods and/or services belonging to several classes of the Nice Classification have been included in one (1) application, such an application shall result in one registration. (n) Section 129. Division of Application. - Any application referring to several goods or services, hereafter referred to as the "initial application," may be divided by the applicant into two (2) or more applications, hereafter referred to as the "divisional applications," by distributing among the latter the goods or services referred to in the initial application. The divisional applications shall preserve the filing date of the initial application or the benefit of the right of priority. (n) Section 130. Signature and Other Means of Self-Identification. - 130.1. Where a signature is required, the Office shall accept: (a) A hand-written signature; or (b) The use of other forms of signature, such as a printed or stamped signature, or the use of a seal instead of a handwritten signature: Provided, That where a seal is used, it should be accompanied by an indication in letters of the name of the signatory. 130.2. The Office shall accept communications to it by telecopier, or by electronic means subject to the conditions or requirements that will be prescribed by the Regulations. When communications are made by telefacsimile, the reproduction of the signature, or the reproduction of the seal together with, where required, the indication in letters of the name of the natural person whose seal is used, appears. The original communications must be received by the Office within thirty (30) days from date of receipt of the telefacsimile.
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130.3. No attestation, notarization, authentication, legalization or other certification of any signature or other means of self-identification referred to in the preceding paragraphs, will be required, except, where the signature concerns the surrender of a registration. (n) Section 131. Priority Right. - 131.1. An application for registration of a mark filed in the Philippines by a person referred to in Section 3, and who previously duly filed an application for registration of the same mark in one of those countries, shall be considered as filed as of the day the application was first filed in the foreign country. 131.2. No registration of a mark in the Philippines by a person described in this section shall be granted until such mark has been registered in the country of origin of the applicant. 131.3. Nothing in this section shall entitle the owner of a registration granted under this section to sue for acts committed prior to the date on which his mark was registered in this country: Provided, That, notwithstanding the foregoing, the owner of a well-known mark as defined in Section 123.1(e) of this Act, that is not registered in the Philippines, may, against an identical or confusingly similar mark, oppose its registration, or petition the cancellation of its registration or sue for unfair competition, without prejudice to availing himself of other remedies provided for under the law. 131.4. In like manner and subject to the same conditions and requirements, the right provided in this section may be based upon a subsequent regularly filed application in the same foreign country: Provided, That any foreign application filed prior to such subsequent application has been withdrawn, abandoned, or otherwise disposed of, without having been laid open to public inspection and without leaving any rights outstanding, and has not served, nor thereafter shall serve, as a basis for claiming a right of priority. (Sec. 37, R.A. No. 166a) Section 132. Application Number and Filing Date. - 132.1. The Office shall examine whether the application satisfies the requirements for the grant of a filing date as provided in Section 127 and Regulations relating thereto. If the application does not satisfy the filing requirements, the Office shall notify the applicant who shall within a period fixed by the Regulations complete or correct the application as required, otherwise, the application shall be considered withdrawn. 132.2 Once an application meets the filing requirements of Section 127, it shall be numbered in the sequential order, and the applicant shall be informed of the application number and the filing date of the application will be deemed to have been abandoned. (n) Section 133. Examination and Publication. - 133.1. Once the application meets the filing requirements of Section 127, the Office shall examine whether the application meets the requirements of Section 124 and the mark as defined in Section 121 is registrable under Section 123. 133.2. Where the Office finds that the conditions referred to in Subsection 133.1 are fulfilled, it shall upon payment of the prescribed fee, forthwith cause the application, as filed, to be published in the prescribed manner. 133.3. If after the examination, the applicant is not entitled to registration for any reason, the Office shall advise the applicant thereof and the reasons therefor. The applicant shall have a period of four (4) months in which to reply or amend his application, which shall then be re-examined. The Regulations shall determine the procedure for the reexamination or revival of an application as well as the appeal to the Director of Trademarks from any final action by the Examiner. 133.4. An abandoned application may be revived as a pending application within three (3) months from the date of abandonment, upon good cause shown and the payment of the required fee. 133.5. The final decision of refusal of the Director of Trademarks shall be appealable to the Director General in accordance with the procedure fixed by the Regulations. (Sec. 7, R.A. No. 166a) Section 134. Opposition. - Any person who believes that he would be damaged by the registration of a mark may, upon payment of the required fee and within thirty (30) days after the publication referred to in Subsection 133.2, file with the Office an opposition to the application. Such opposition shall be in writing and verified by the oppositor or by any person on his behalf who knows the facts, and shall specify the grounds on which it is based and include a statement of the facts relied upon. Copies of certificates of registration of marks registered in other countries or other supporting documents mentioned in the opposition shall be filed therewith, together with the translation in English, if not in the English language. For good cause shown and upon payment of the required surcharge, the time for filing an opposition may be extended by the Director of Legal Affairs, who shall notify the applicant of such extension. The Regulations shall fix the maximum period of time within which to file the opposition. (Sec. 8, R.A. No. 165a) Section 135. Notice and Hearing. - Upon the filing of an opposition, the Office shall serve notice of the filing on the applicant, and of the date of the hearing thereof upon the applicant and the oppositor and all other persons having any right, title or interest in the mark covered by the application, as appear of record in the Office. (Sec. 9, R.A. No. 165) Section 136. Issuance and Publication of Certificate. - When the period for filing the opposition has expired, or when the Director of Legal Affairs shall have denied the opposition, the Office upon payment of the required fee, shall
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issue the certificate of registration. Upon issuance of a certificate of registration, notice thereof making reference to the publication of the application shall be published in the IPO Gazette. (Sec. 10, R.A. No. 165) Section 137. Registration of Mark and Issuance of a Certificate to the Owner or his Assignee. - 137.1. The Office shall maintain a Register in which shall be registered marks, numbered in the order of their registration, and all transactions in respect of each mark, required to be recorded by virtue of this law. 137.2. The registration of a mark shall include a reproduction of the mark and shall mention: its number; the name and address of the registered owner and, if the registered owner's address is outside the country, his address for service within the country; the dates of application and registration; if priority is claimed, an indication of this fact, and the number, date and country of the application, basis of the priority claims; the list of goods or services in respect of which registration has been granted, with the indication of the corresponding class or classes; and such other data as the Regulations may prescribe from time to time. 137.3. A certificate of registration of a mark may be issued to the assignee of the applicant: Provided, That the assignment is recorded in the Office. In case of a change of ownership, the Office shall at the written request signed by the owner, or his representative, or by the new owner, or his representative and upon a proper showing and the payment of the prescribed fee, issue to such assignee a new certificate of registration of the said mark in the name of such assignee, and for the unexpired part of the original period. 137.4. The Office shall record any change of address, or address for service, which shall be notified to it by the registered owner. 137.5. In the absence of any provision to the contrary in this Act, communications to be made to the registered owner by virtue of this Act shall be sent to him at his last recorded address and, at the same, at his last recorded address for service. (Sec. 19, R.A. No. 166a) Section 138. Certificates of Registration. - A certificate of registration of a mark shall be prima facie evidence of the validity of the registration, the registrant's ownership of the mark, and of the registrant's exclusive right to use the same in connection with the goods or services and those that are related thereto specified in the certificate. (Sec. 20, R.A. No. 165) Section 139. Publication of Registered Marks; Inspection of Register. - 139.1. The Office shall publish, in the form and within the period fixed by the Regulations, the marks registered, in the order of their registration, reproducing all the particulars referred to in Subsection 137.2. 139.2. Marks registered at the Office may be inspected free of charge and any person may obtain copies thereof at his own expense. This provision shall also be applicable to transactions recorded in respect of any registered mark. (n) Section 140. Cancellation upon Application by Registrant; Amendment or Disclaimer of Registration. - Upon application of the registrant, the Office may permit any registration to be surrendered for cancellation, and upon cancellation the appropriate entry shall be made in the records of the Office. Upon application of the registrant and payment of the prescribed fee, the Office for good cause may permit any registration to be amended or to be disclaimed in part: Provided, That the amendment or disclaimer does not alter materially the character of the mark. Appropriate entry shall be made in the records of the Office upon the certificate of registration or, if said certificate is lost or destroyed, upon a certified copy thereof (Sec. 14, R.A. No. 166) Section 141. Sealed and Certified Copies as Evidence. - Copies of any records, books, papers, or drawings belonging to the Office relating to marks, and copies of registrations, when authenticated by the seal of the Office and certified by the Director of the Administrative, Financial and Human Resource Development Service Bureau or in his name by an employee of the Office duly authorized by said Director, shall be evidence in all cases wherein the originals would be evidence; and any person who applies and pays the prescribed fee shall secure such copies. (n) Section 142. Correction of Mistakes Made by the Office. - Whenever a material mistake in a registration incurred through the fault of the Office is clearly disclosed by the records of the Office, a certificate stating the fact and nature of such mistake shall be issued without charge, recorded and a printed copy thereof shall be attached to each printed copy of the registration. Such corrected registration shall thereafter have the same effect as the original certificate; or in the discretion of the Director of the Administrative, Financial and Human Resource Development Service Bureau a new certificate of registration may be issued without charge. All certificates of correction heretofore issued in accordance with the Regulations and the registration to which they are attached shall have the same force and effect as if such certificates and their issuance had been authorized by this Act. (n) Section 143. Correction of Mistakes Made by Applicant. - Whenever a mistake is made in a registration and such mistake occurred in good faith through the fault of the applicant, the Office may issue a certificate upon the payment of the prescribed fee: Provided, That the correction does not involve any change in the registration that requires republication of the mark. (n) Section 144. Classification of Goods and Services. - 144.1. Each registration, and any publication of the Office which concerns an application or registration effected by the Office shall indicate the goods or services by their names, grouped according to the classes of the Nice Classification, and each group shall be preceded by the number
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of the class of that Classification to which that group of goods or services belongs, presented in the order of the classes of the said Classification. 144.2. Goods or services may not be considered as being similar or dissimilar to each other on the ground that, in any registration or publication by the Office, they appear in different classes of the Nice Classification. (Sec. 6, R.A. No. 166a) Section 145. Duration. - A certificate of registration shall remain in force for ten (10) years: Provided, That the registrant shall file a declaration of actual use and evidence to that effect, or shall show valid reasons based on the existence of obstacles to such use, as prescribed by the Regulations, within one (1) year from the fifth anniversary of the date of the registration of the mark. Otherwise, the mark shall be removed from the Register by the Office. (Sec. 12, R.A. No. 166a) Section 146. Renewal. - 146.1. A certificate of registration may be renewed for periods of ten (10) years at its expiration upon payment of the prescribed fee and upon filing of a request. The request shall contain the following indications: (a) An indication that renewal is sought; (b) The name and address of the registrant or his successor-in-interest, hereafter referred to as the "right holder"; (c) The registration number of the registration concerned; (d) The filing date of the application which resulted in the registration concerned to be renewed; (e) Where the right holder has a representative, the name and address of that representative; (f) The names of the recorded goods or services for which the renewal is requested or the names of the recorded goods or services for which the renewal is not requested, grouped according to the classes of the Nice Classification to which that group of goods or services belongs and presented in the order of the classes of the said Classification; and (g) A signature by the right holder or his representative. 146.2. Such request shall be in Filipino or English and may be made at any time within six (6) months before the expiration of the period for which the registration was issued or renewed, or it may be made within six (6) months after such expiration on payment of the additional fee herein prescribed. 146.3. If the Office refuses to renew the registration, it shall notify the registrant of his refusal and the reasons therefor. 146.4. An applicant for renewal not domiciled in the Philippines shall be subject to and comply with the requirements of this Act. (Sec. 15, R.A. No. 166a) Section 147. Rights Conferred. - 147.1. The owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs or containers for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. 147.2. The exclusive right of the owner of a well-known mark defined in Subsection 123.1(e) which is registered in the Philippines, shall extend to goods and services which are not similar to those in respect of which the mark is registered: Provided, That use of that mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered mark: Provided further, That the interests of the owner of the registered mark are likely to be damaged by such use. (n) Section 148. Use of Indications by Third Parties for Purposes Other than those for which the Mark is Used. Registration of the mark shall not confer on the registered owner the right to preclude third parties from using bona fide their names, addresses, pseudonyms, a geographical name, or exact indications concerning the kind, quality, quantity, destination, value, place of origin, or time of production or of supply, of their goods or services: Provided, That such use is confined to the purposes of mere identification or information and cannot mislead the public as to the source of the goods or services. (n) Section 149. Assignment and Transfer of Application and Registration. - 149.1. An application for registration of a mark, or its registration, may be assigned or transferred with or without the transfer of the business using the mark. (n)
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149.2. Such assignment or transfer shall, however, be null and void if it is liable to mislead the public, particularly as regards the nature, source, manufacturing process, characteristics, or suitability for their purpose, of the goods or services to which the mark is applied. 149.3. The assignment of the application for registration of a mark, or of its registration, shall be in writing and require the signatures of the contracting parties. Transfers by mergers or other forms of succession may be made by any document supporting such transfer. 149.4. Assignments and transfers of registrations of marks shall be recorded at the Office on payment of the prescribed fee; assignment and transfers of applications for registration shall, on payment of the same fee, be provisionally recorded, and the mark, when registered, shall be in the name of the assignee or transferee. 149.5. Assignments and transfers shall have no effect against third parties until they are recorded at the Office. (Sec. 31, R.A. No. 166a) Section 150. License Contracts. - 150.1. Any license contract concerning the registration of a mark, or an application therefor, shall provide for effective control by the licensor of the quality of the goods or services of the licensee in connection with which the mark is used. If the license contract does not provide for such quality control, or if such quality control is not effectively carried out, the license contract shall not be valid. 150.2. A license contract shall be submitted to the Office which shall keep its contents confidential but shall record it and publish a reference thereto. A license contract shall have no effect against third parties until such recording is effected. The Regulations shall fix the procedure for the recording of the license contract. (n) Section 151. Cancellation. - 151.1. A petition to cancel a registration of a mark under this Act may be filed with the Bureau of Legal Affairs by any person who believes that he is or will be damaged by the registration of a mark under this Act as follows: (a) Within five (5) years from the date of the registration of the mark under this Act. (b) At any time, if the registered mark becomes the generic name for the goods or services, or a portion thereof, for which it is registered, or has been abandoned, or its registration was obtained fraudulently or contrary to the provisions of this Act, or if the registered mark is being used by, or with the permission of, the registrant so as to misrepresent the source of the goods or services on or in connection with which the mark is used. If the registered mark becomes the generic name for less than all of the goods or services for which it is registered, a petition to cancel the registration for only those goods or services may be filed. A registered mark shall not be deemed to be the generic name of goods or services solely because such mark is also used as a name of or to identify a unique product or service. The primary significance of the registered mark to the relevant public rather than purchaser motivation shall be the test for determining whether the registered mark has become the generic name of goods or services on or in connection with which it has been used. (n) (c) At any time, if the registered owner of the mark without legitimate reason fails to use the mark within the Philippines, or to cause it to be used in the Philippines by virtue of a license during an uninterrupted period of three (3) years or longer. 151.2. Notwithstanding the foregoing provisions, the court or the administrative agency vested with jurisdiction to hear and adjudicate any action to enforce the rights to a registered mark shall likewise exercise jurisdiction to determine whether the registration of said mark may be cancelled in accordance with this Act. The filing of a suit to enforce the registered mark with the proper court or agency shall exclude any other court or agency from assuming jurisdiction over a subsequently filed petition to cancel the same mark. On the other hand, the earlier filing of petition to cancel the mark with the Bureau of Legal Affairs shall not constitute a prejudicial question that must be resolved before an action to enforce the rights to same registered mark may be decided. (Sec. 17, R.A. No. 166a) Section 152. Non-use of a Mark When Excused. - 152.1. Non-use of a mark may be excused if caused by circumstances arising independently of the will of the trademark owner. Lack of funds shall not excuse non-use of a mark. 152.2. The use of the mark in a form different from the form in which it is registered, which does not alter its distinctive character, shall not be ground for cancellation or removal of the mark and shall not diminish the protection granted to the mark. 152.3. The use of a mark in connection with one or more of the goods or services belonging to the class in respect of which the mark is registered shall prevent its cancellation or removal in respect of all other goods or services of the same class. 152.4. The use of a mark by a company related with the registrant or applicant shall inure to the latter's benefit, and such use shall not affect the validity of such mark or of its registration: Provided, That such mark is not used in such manner as to deceive the public. If use of a mark by a person is controlled by the registrant or applicant with respect to the nature and quality of the goods or services, such use shall inure to the benefit of the registrant or applicant. (n)
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Section 153. Requirements of Petition; Notice and Hearing. - Insofar as applicable, the petition for cancellation shall be in the same form as that provided in Section 134 hereof, and notice and hearing shall be as provided in Section 135 hereof. Section 154. Cancellation of Registration. - If the Bureau of Legal Affairs finds that a case for cancellation has been made out, it shall order the cancellation of the registration. When the order or judgment becomes final, any right conferred by such registration upon the registrant or any person in interest of record shall terminate. Notice of cancellation shall be published in the IPO Gazette. (Sec. 19, R.A. No. 166a) Section 155. Remedies; Infringement. - Any person who shall, without the consent of the owner of the registered mark: 155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or 155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, That the infringement takes place at the moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material. (Sec. 22, R.A. No 166a) Section 156. Actions, and Damages and Injunction for Infringement. - 156.1. The owner of a registered mark may recover damages from any person who infringes his rights, and the measure of the damages suffered shall be either the reasonable profit which the complaining party would have made, had the defendant not infringed his rights, or the profit which the defendant actually made out of the infringement, or in the event such measure of damages cannot be readily ascertained with reasonable certainty, then the court may award as damages a reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party. (Sec. 23, first par., R.A. No. 166a) 156.2. On application of the complainant, the court may impound during the pendency of the action, sales invoices and other documents evidencing sales. (n) 156.3. In cases where actual intent to mislead the public or to defraud the complainant is shown, in the discretion of the court, the damages may be doubled. (Sec. 23, first par., R.A. No. 166) 156.4. The complainant, upon proper showing, may also be granted injunction. (Sec. 23, second par., R.A. No. 166a) Section 157. Power of Court to Order Infringing Material Destroyed. - 157.1 In any action arising under this Act, in which a violation of any right of the owner of the registered mark is established, the court may order that goods found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or destroyed; and all labels, signs, prints, packages, wrappers, receptacles and advertisements in the possession of the defendant, bearing the registered mark or trade name or any reproduction, counterfeit, copy or colorable imitation thereof, all plates, molds, matrices and other means of making the same, shall be delivered up and destroyed. 157.2. In regard to counterfeit goods, the simple removal of the trademark affixed shall not be sufficient other than in exceptional cases which shall be determined by the Regulations, to permit the release of the goods into the channels of commerce. (Sec. 24, R.A. No. 166a) Section 158. Damages; Requirement of Notice. - In any suit for infringement, the owner of the registered mark shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is likely to cause confusion, or to cause mistake, or to deceive. Such knowledge is presumed if the registrant gives notice that his mark is registered by displaying with the mark the words '"Registered Mark" or the letter R within a circle or if the defendant had otherwise actual notice of the registration. (Sec. 21, R.A. No. 166a) Section 159. Limitations to Actions for Infringement. - Notwithstanding any other provision of this Act, the remedies given to the owner of a right infringed under this Act shall be limited as follows: 159.1. Notwithstanding the provisions of Section 155 hereof, a registered mark shall have no effect against any person who, in good faith, before the filing date or the priority date, was using the mark for the purposes of his business or enterprise: Provided, That his right may only be transferred or assigned together with his enterprise or business or with that part of his enterprise or business in which the mark is used.
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159.2. Where an infringer who is engaged solely in the business of printing the mark or other infringing materials for others is an innocent infringer, the owner of the right infringed shall be entitled as against such infringer only to an injunction against future printing. 159.3. Where the infringement complained of is contained in or is part of paid advertisement in a newspaper, magazine, or other similar periodical or in an electronic communication, the remedies of the owner of the right infringed as against the publisher or distributor of such newspaper, magazine, or other similar periodical or electronic communication shall be limited to an injunction against the presentation of such advertising matter in future issues of such newspapers, magazines, or other similar periodicals or in future transmissions of such electronic communications. The limitations of this subparagraph shall apply only to innocent infringers: Provided, That such injunctive relief shall not be available to the owner of the right infringed with respect to an issue of a newspaper, magazine, or other similar periodical or an electronic communication containing infringing matter where restraining the dissemination of such infringing matter in any particular issue of such periodical or in an electronic communication would delay the delivery of such issue or transmission of such electronic communication is customarily conducted in accordance with the sound business practice, and not due to any method or device adopted to evade this section or to prevent or delay the issuance of an injunction or restraining order with respect to such infringing matter. (n) Section 160. Right of Foreign Corporation to Sue in Trademark or Service Mark Enforcement Action. - Any foreign national or juridical person who meets the requirements of Section 3 of this Act and does not engage in business in the Philippines may bring a civil or administrative action hereunder for opposition, cancellation, infringement, unfair competition, or false designation of origin and false description, whether or not it is licensed to do business in the Philippines under existing laws. (Sec. 21-A, R.A. No. 166a) Section 161. Authority to Determine Right to Registration. - In any action involving a registered mark, the court may determine the right to registration, order the cancellation of a registration, in whole or in part, and otherwise rectify the register with respect to the registration of any party to the action in the exercise of this. Judgment and orders shall be certified by the court to the Director, who shall make appropriate entry upon the records of the Bureau, and shall be controlled thereby. (Sec. 25, R.A. No. 166a) Section 162. Action for False or Fraudulent Declaration. - Any person who shall procure registration in the Office of a mark by a false or fraudulent declaration or representation, whether oral or in writing, or by any false means, shall be liable in a civil action by any person injured thereby for any damages sustained in consequence thereof (Sec. 26, R.A. No. 166) Section 163. Jurisdiction of Court. - All actions under Sections 150, 155, 164, and 166 to 169 shall be brought before the proper courts with appropriate jurisdiction under existing laws. (Sec. 27, R.A. No. 166) Section 164. Notice of Filing Suit Given to the Director. - It shall be the duty of the clerks of such courts within one (1) month after the filing of any action, suit, or proceeding involving a mark registered under the provisions of this Act, to notify the Director in writing setting forth: the names and addresses of the litigants and designating the number of the registration or registrations and within one (1) month after the judgment is entered or an appeal is taken, the clerk of court shall give notice thereof to the Office, and the latter shall endorse the same upon the filewrapper of the said registration or registrations and incorporate the same as a part of the contents of said filewrapper. (n) Section 165. Trade Names or Business Names. - 165.1. A name or designation may not be used as a trade name if by its nature or the use to which such name or designation may be put, it is contrary to public order or morals and if, in particular, it is liable to deceive trade circles or the public as to the nature of the enterprise identified by that name. 165.2.(a) Notwithstanding any laws or regulations providing for any obligation to register trade names, such names shall be protected, even prior to or without registration, against any unlawful act committed by third parties. (b) In particular, any subsequent use of the trade name by a third party, whether as a trade name or a mark or collective mark, or any such use of a similar trade name or mark, likely to mislead the public, shall be deemed unlawful. 165.3. The remedies provided for in Sections 153 to 156 and Sections 166 and 167 shall apply mutatis mutandis. 165.4. Any change in the ownership of a trade name shall be made with the transfer of the enterprise or part thereof identified by that name. The provisions of Subsections 149.2 to 149.4 shall apply mutatis mutandis. Section 166. Goods Bearing Infringing Marks or Trade Names. - No article of imported merchandise which shall copy or simulate the name of any domestic product, or manufacturer, or dealer, or which shall copy or simulate a mark registered in accordance with the provisions of this Act, or shall bear a mark or trade name calculated to induce the public to believe that the article is manufactured in the Philippines, or that it is manufactured in any foreign country or locality other than the country or locality where it is in fact manufactured, shall be admitted to entry at any customhouse of the Philippines. In order to aid the officers of the customs service in enforcing this prohibition, any person who is entitled to the benefits of this Act, may require that his name and residence, and the name of the locality in which his goods are manufactured, a copy of the certificate of registration of his mark or trade name, to be recorded in books which shall be kept for this purpose in the Bureau of Customs, under such regulations as the
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Collector of Customs with the approval of the Secretary of Finance shall prescribe, and may furnish to the said Bureau facsimiles of his name, the name of the locality in which his goods are manufactured, or his registered mark or trade name, and thereupon the Collector of Customs shall cause one (1) or more copies of the same to be transmitted to each collector or to other proper officer of the Bureau of Customs. (Sec. 35, R.A. No. 166) Section 167. Collective Marks. - 167.1. Subject to Subsections 167.2 and 167.3, Sections 122 to 164 and 166 shall apply to collective marks, except that references therein to "mark" shall be read as "collective mark". 167.2.(a) An application for registration of a collective mark shall designate the mark as a collective mark and shall be accompanied by a copy of the agreement, if any, governing the use of the collective mark. (b) The registered owner of a collective mark shall notify the Director of any changes made in respect of the agreement referred to in paragraph (a). 167.3. In addition to the grounds provided in Section 149, the Court shall cancel the registration of a collective mark if the person requesting the cancellation proves that only the registered owner uses the mark, or that he uses or permits its use in contravention of the agreements referred to in Subsection 166.2 or that he uses or permits its use in a manner liable to deceive trade circles or the public as to the origin or any other common characteristics of the goods or services concerned. 167.4. The registration of a collective mark, or an application therefor shall not be the subject of a license contract. (Sec. 40, R.A. No. 166a) Section 168. Unfair Competition, Rights, Regulation and Remedies. - 168.1. A person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights. 168.2. Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor. 168.3. In particular, and without in any way limiting the scope of protection against unfair competition, the following shall be deemed guilty of unfair competition: (a) Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose; (b) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or (c) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another. 168.4. The remedies provided by Sections 156, 157 and 161 shall apply mutatis mutandis. (Sec. 29, R.A. No. 166a) Section 169. False Designations of Origin; False Description or Representation. - 169.1. Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which: (a) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; or (b) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable to a civil action for damages and injunction provided in Sections 156 and 157 of this Act by any person who believes that he or she is or is likely to be damaged by such act. 169.2. Any goods marked or labelled in contravention of the provisions of this Section shall not be imported into the Philippines or admitted entry at any customhouse of the Philippines. The owner, importer, or consignee of goods
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refused entry at any customhouse under this section may have any recourse under the customs revenue laws or may have the remedy given by this Act in cases involving goods refused entry or seized. (Sec. 30, R.A. No. 166a) Section 170. Penalties. - Independent of the civil and administrative sanctions imposed by law, a criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty thousand pesos (P50,000) to Two hundred thousand pesos(P200,000), shall be imposed on any person who is found guilty of committing any of the acts mentioned in Section 155, Section 168 and Subsection 169.1. (Arts. 188 and 189, Revised Penal Code)
PART IV THE LAW ON COPYRIGHT CHAPTER I PRELIMINARY PROVISIONS Section 171. Definitions. - For the purpose of this Act, the following terms have the following meaning: 171.1. "Author" is the natural person who has created the work; 171.2. A "collective work" is a work which has been created by two (2) or more natural persons at the initiative and under the direction of another with the understanding that it will be disclosed by the latter under his own name and that contributing natural persons will not be identified; 171.3. "Communication to the public" or "communicate to the public" means the making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them; 171.4. A "computer" is an electronic or similar device having information-processing capabilities, and a "computer program" is a set of instructions expressed in words, codes, schemes or in any other form, which is capable when incorporated in a medium that the computer can read, of causing the computer to perform or achieve a particular task or result; 171.5. "Public lending" is the transfer of possession of the original or a copy of a work or sound recording for a limited period, for non-profit purposes, by an institution the services of which are available to the public, such as public library or archive; 171.6. "Public performance", in the case of a work other than an audiovisual work, is the recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process; in the case of an audiovisual work, the showing of its images in sequence and the making of the sounds accompanying it audible; and, in the case of a sound recording, making the recorded sounds audible at a place or at places where persons outside the normal circle of a family and that family's closest social acquaintances are or can be present, irrespective of whether they are or can be present at the same place and at the same time, or at different places and/or at different times, and where the performance can be perceived without the need for communication within the meaning of Subsection 171.3; 171.7. "Published works" means works, which, with the consent of the authors, are made available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them: Provided, That availability of such copies has been such, as to satisfy the reasonable requirements of the public, having regard to the nature of the work; 171.8. "Rental" is the transfer of the possession of the original or a copy of a work or a sound recording for a limited period of time, for profit-making purposes; 171.9. "Reproduction" is the making of one (1) or more copies of a work or a sound recording in any manner or form (Sec. 41 (E), P.D. No. 49 a); 171.10. A "work of applied art" is an artistic creation with utilitarian functions or incorporated in a useful article, whether made by hand or produced on an industrial scale; 171.11. A "work of the Government of the Philippines" is a work created by an officer or employee of the Philippine Government or any of its subdivisions and instrumentalities, including government-owned or controlled corporations as a part of his regularly prescribed official duties.
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CHAPTER II ORIGINAL WORKS Section 172. Literary and Artistic Works. - 172.1. Literary and artistic works, hereinafter referred to as "works", are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular: (a) Books, pamphlets, articles and other writings; (b) Periodicals and newspapers; (c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form; (d) Letters; (e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows; (f) Musical compositions, with or without words; (g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art; (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; (i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science; (j) Drawings or plastic works of a scientific or technical character; (k) Photographic works including works produced by a process analogous to photography; lantern slides; (l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings; (m) Pictorial illustrations and advertisements; (n) Computer programs; and (o) Other literary, scholarly, scientific and artistic works. 172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. (Sec. 2, P.D. No. 49a) CHAPTER III DERIVATIVE WORKS Section 173. Derivative Works. - 173.1. The following derivative works shall also be protected by copyright: (a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and (b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P] and [Q], P.D. No. 49) 173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. (Sec. 8, P.D. 49; Art. 10, TRIPS) Section 174. Published Edition of Work. - In addition to the right to publish granted by the author, his heirs, or assigns, the publisher shall have a copyright consisting merely of the right of reproduction of the typographical arrangement of the published edition of the work. (n)
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CHAPTER IV WORKS NOT PROTECTED Section 175. Unprotected Subject Matter. - Notwithstanding the provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof (n) Section 176. Works of the Government. - 176.1. No copyright shall subsist in any work of the Government of the Philippines. However, prior approval of the government agency or office wherein the work is created shall be necessary for exploitation of such work for profit. Such agency or office may, among other things, impose as a condition the payment of royalties. No prior approval or conditions shall be required for the use of any purpose of statutes, rules and regulations, and speeches, lectures, sermons, addresses, and dissertations, pronounced, read or rendered in courts of justice, before administrative agencies, in deliberative assemblies and in meetings of public character. (Sec. 9, first par., P.D. No. 49) 176.2. The author of speeches, lectures, sermons, addresses, and dissertations mentioned in the preceding paragraphs shall have the exclusive right of making a collection of his works. (n) 176.3. Notwithstanding the foregoing provisions, the Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise; nor shall publication or republication by the Government in a public document of any work in which copyright is subsisting be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such work without the consent of the copyright owner. (Sec. 9, third par., P.D. No. 49) CHAPTER V COPYRIGHT OR ECONOMIC RIGHTS Section 177. Copyright or Economic Rights. - Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: 177.1. Reproduction of the work or substantial portion of the work; 177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; 177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; 177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n) 177.5. Public display of the original or a copy of the work; 177.6. Public performance of the work; and 177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a) CHAPTER VI OWNERSHIP OF COPYRIGHT Section 178. Rules on Copyright Ownership. - Copyright ownership shall be governed by the following rules: 178.1 Subject to the provisions of this section, in the case of original literary and artistic works, copyright shall belong to the author of the work; 178.2. In the case of works of joint authorship, the co-authors shall be the original owners of the copyright and in the absence of agreement, their rights shall be governed by the rules on co-ownership. If, however, a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of the copyright in the part that he has created; 178.3. In the case of work created by an author during and in the course of his employment, the copyright shall belong to: (a) The employee, if the creation of the object of copyright is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer.
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(b) The employer, if the work is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary. 178.4. In the case of a work commissioned by a person other than an employer of the author and who pays for it and the work is made in pursuance of the commission, the person who so commissioned the work shall have ownership of the work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary; 178.5. In the case of audiovisual work, the copyright shall belong to the producer, the author of the scenario, the composer of the music, the film director, and the author of the work so adapted. However, subject to contrary or other stipulations among the creators, the producer shall exercise the copyright to an extent required for the exhibition of the work in any manner, except for the right to collect performing license fees for the performance of musical compositions, with or without words, which are incorporated into the work; and 178.6. In respect of letters, the copyright shall belong to the writer subject to the provisions of Article 723 of the Civil Code. (Sec. 6, P.D. No. 49a) Section 179. Anonymous and Pseudonymous Works. - For purposes of this Act, the publishers shall be deemed to represent the authors of articles and other writings published without the names of the authors or under pseudonyms, unless the contrary appears, or the pseudonyms or adopted name leaves no doubt as to the author's identity, or if the author of the anonymous works discloses his identity. (Sec. 7, P.D. 49) CHAPTER VII TRANSFER OR ASSIGNMENT OF COPYRIGHT Section 180. Rights of Assignee. - 180.1. The copyright may be assigned in whole or in part. Within the scope of the assignment, the assignee is entitled to all the rights and remedies which the assignor had with respect to the copyright. 180.2. The copyright is not deemed assigned inter vivos in whole or in part unless there is a written indication of such intention. 180.3. The submission of a literary, photographic or artistic work to a newspaper, magazine or periodical for publication shall constitute only a license to make a single publication unless a greater right is expressly granted. If two (2) or more persons jointly own a copyright or any part thereof, neither of the owners shall be entitled to grant licenses without the prior written consent of the other owner or owners. (Sec. 15, P.D. No. 49a) Section 181. Copyright and Material Object. - The copyright is distinct from the property in the material object subject to it. Consequently, the transfer or assignment of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer or assignment of the copyright. (Sec. 16, P.D. No. 49) Section 182. Filing of Assignment or License. - An assignment or exclusive license may be filed in duplicate with the National Library upon payment of the prescribed fee for registration in books and records kept for the purpose. Upon recording, a copy of the instrument shall be returned to the sender with a notation of the fact of record. Notice of the record shall be published in the IPO Gazette. (Sec. 19, P.D. No. 49a) Section 183. Designation of Society. - The copyright owners or their heirs may designate a society of artists, writers or composers to enforce their economic rights and moral rights on their behalf. (Sec. 32, P.D. No. 49a) CHAPTER VIII LIMITATIONS ON COPYRIGHT Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright: (a) The recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (Sec. 10(1), P.D. No. 49) (b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (Sec. 11, third par., P.D. No. 49) (c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (Sec. 11, P.D. No. 49)
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(d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (Sec. 12, P.D. No. 49) (e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned; (f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work; (g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast; (h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use; (i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (n) (j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and (k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner. 184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder's legitimate interests. Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: (a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (b) The nature of the copyrighted work; (c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) The effect of the use upon the potential market for or value of the copyrighted work. 185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Section 186. Work of Architecture. - Copyright in a work of architecture shall include the right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original: Provided, That the copyright in any such work shall not include the right to control the reconstruction or rehabilitation in the same style as the original of a building to which that copyright relates. (n) Section 187. Reproduction of Published Work. - 187.1. Notwithstanding the provision of Section 177, and subject to the provisions of Subsection 187.2, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work.
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187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of: (a) A work of architecture in the form of building or other construction; (b) An entire book, or a substantial part thereof, or of a musical work in graphic form by reprographic means; (c) A compilation of data and other materials; (d) A computer program except as provided in Section 189; and (e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author. (n) Section 188. Reprographic Reproduction by Libraries. - 188.1. Notwithstanding the provisions of Subsection 177.6, any library or archive whose activities are not for profit may, without the authorization of the author of copyright owner, make a single copy of the work by reprographic reproduction: (a) Where the work by reason of its fragile character or rarity cannot be lent to user in its original form; (b) Where the works are isolated articles contained in composite works or brief portions of other published works and the reproduction is necessary to supply them, when this is considered expedient, to persons requesting their loan for purposes of research or study instead of lending the volumes or booklets which contain them; and (c) Where the making of such a copy is in order to preserve and, if necessary in the event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher. 188.2. Notwithstanding the above provisions, it shall not be permissible to produce a volume of a work published in several volumes or to produce missing tomes or pages of magazines or similar works, unless the volume, tome or part is out of stock: Provided, That every library which, by law, is entitled to receive copies of a printed work, shall be entitled, when special reasons so require, to reproduce a copy of a published work which is considered necessary for the collection of the library but which is out of stock. (Sec. 13, P.D. 49a) Section 189. Reproduction of Computer Program. - 189.1. Notwithstanding the provisions of Section 177, the reproduction in one (1) back-up copy or adaptation of a computer program shall be permitted, without the authorization of the author of, or other owner of copyright in, a computer program, by the lawful owner of that computer program: Provided, That the copy or adaptation is necessary for: (a) The use of the computer program in conjunction with a computer for the purpose, and to the extent, for which the computer program has been obtained; and (b) Archival purposes, and, for the replacement of the lawfully owned copy of the computer program in the event that the lawfully obtained copy of the computer program is lost, destroyed or rendered unusable. 189.2. No copy or adaptation mentioned in this Section shall be used for any purpose other than the ones determined in this Section, and any such copy or adaptation shall be destroyed in the event that continued possession of the copy of the computer program ceases to be lawful. 189.3. This provision shall be without prejudice to the application of Section 185 whenever appropriate. (n) Section 190. Importation for Personal Purposes. - 190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances: (a) When copies of the work are not available in the Philippines and: (i) Not more than one (1) copy at one time is imported for strictly individual use only; or (ii) The importation is by authority of and for the use of the Philippine Government; or (iii) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.
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(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3). 190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor's right of action. 190.3. Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and under treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported. (Sec. 30, P.D. No. 49) CHAPTER IX DEPOSIT AND NOTICE Section 191. Registration and Deposit with National Library and the Supreme Court Library. - After the first public dissemination of performance by authority of the copyright owner of a work falling under Subsections 172.1, 172.2 and 172.3 of this Act, there shall, for the purpose of completing the records of the National Library and the Supreme Court Library, within three (3) weeks, be registered and deposited with it, by personal delivery or by registered mail two (2) complete copies or reproductions of the work in such form as the directors of said libraries may prescribe. A certificate of deposit shall be issued for which the prescribed fee shall be collected and the copyright owner shall be exempt from making additional deposit of the works with the National Library and the Supreme Court Library under other laws. If, within three (3) weeks after receipt by the copyright owner of a written demand from the directors for such deposit, the required copies or reproductions are not delivered and the fee is not paid, the copyright owner shall be liable to pay a fine equivalent to the required fee per month of delay and to pay to the National Library and the Supreme Court Library the amount of the retail price of the best edition of the work. Only the above mentioned classes of work shall be accepted for deposit by the National Library and the Supreme Court Library. (Sec. 26, P.D. No. 49a) Section 192. Notice of Copyright. - Each copy of a work published or offered for sale may contain a notice bearing the name of the copyright owner, and the year of its first publication, and, in copies produced after the creator's death, the year of such death. (Sec. 27, P.D. No. 49a)
CHAPTER X MORAL RIGHTS Section 193. Scope of Moral Rights. - The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right: 193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work; 193.2. To make any alterations of his work prior to, or to withhold it from publication; 193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and 193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. (Sec. 34, P.D. No. 49) Section 194. Breach of Contract. - An author cannot be compelled to perform his contract to create a work or for the publication of his work already in existence. However, he may be held liable for damages for breach of such contract. (Sec. 35, P.D. No. 49) Section 195. Waiver of Moral Rights. - An author may waive his rights mentioned in Section 193 by a written instrument, but no such waiver shall be valid where its effects is to permit another: 195.1. To use the name of the author, or the title of his work, or otherwise to make use of his reputation with respect to any version or adaptation of his work which, because of alterations therein, would substantially tend to injure the literary or artistic reputation of another author; or 195.2. To use the name of the author with respect to a work he did not create. (Sec. 36, P.D. No. 49)
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Section 196. Contribution to Collective Work. - When an author contributes to a collective work, his right to have his contribution attributed to him is deemed waived unless he expressly reserves it. (Sec. 37, P.D. No. 49) Section 197. Editing, Arranging and Adaptation of Work. - In the absence of a contrary stipulation at the time an author licenses or permits another to use his work, the necessary editing, arranging or adaptation of such work, for publication, broadcast, use in a motion picture, dramatization, or mechanical or electrical reproduction in accordance with the reasonable and customary standards or requirements of the medium in which the work is to be used, shall not be deemed to contravene the author's rights secured by this chapter. Nor shall complete destruction of a work unconditionally transferred by the author be deemed to violate such rights. (Sec. 38, P.D. No. 49) Section 198. Term of Moral Rights. - 198.1. The rights of an author under this chapter shall last during the lifetime of the author and for fifty (50) years after his death and shall not be assignable or subject to license. The person or persons to be charged with the posthumous enforcement of these rights shall be named in writing to be filed with the National Library. In default of such person or persons, such enforcement shall devolve upon either the author's heirs, and in default of the heirs, the Director of the National Library. 198.2. For purposes of this Section, "Person" shall mean any individual, partnership, corporation, association, or society. The Director of the National Library may prescribe reasonable fees to be charged for his services in the application of provisions of this Section. (Sec. 39, P.D. No. 49) Section 199. Enforcement Remedies. - Violation of any of the rights conferred by this Chapter shall entitle those charged with their enforcement to the same rights and remedies available to a copyright owner. In addition, damages which may be availed of under the Civil Code may also be recovered. Any damage recovered after the creator's death shall be held in trust for and remitted to his heirs, and in default of the heirs, shall belong to the government. (Sec. 40, P D No. 49)
CHAPTER XI RIGHTS TO PROCEEDS IN SUBSEQUENT TRANSFERS Section 200. Sale or Lease of Work. - In every sale or lease of an original work of painting or sculpture or of the original manuscript of a writer or composer, subsequent to the first disposition thereof by the author, the author or his heirs shall have an inalienable right to participate in the gross proceeds of the sale or lease to the extent of five percent (5%). This right shall exist during the lifetime of the author and for fifty (50) years after his death. (Sec. 31, P.D. No. 49) Section 201. Works Not Covered. - The provisions of this Chapter shall not apply to prints, etchings, engravings, works of applied art, or works of similar kind wherein the author primarily derives gain from the proceeds of reproductions. (Sec. 33, P.D. No. 49) CHAPTER XII RIGHTS OF PERFORMERS, PRODUCERS OF SOUNDS RECORDINGS AND BROADCASTING ORGANIZATIONS Section 202. Definitions. - For the purpose of this Act, the following terms shall have the following meanings: 202.1. "Performers" are actors, singers, musicians, dancers, and other persons who act, sing, declaim, play in, interpret, or otherwise perform literary and artistic work; 202.2. "Sound recording" means the fixation of the sounds of a performance or of other sounds, or representation of sound, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work; 202.3. An "audiovisual work or fixation" is a work that consists of a series of related images which impart the impression of motion, with or without accompanying sounds, susceptible of being made visible and, where accompanied by sounds, susceptible of being made audible; 202.4. "Fixation" means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device; 202. 5. "Producer of a sound recording" means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representation of sounds; 202.6. "Publication of a fixed performance or a sound recording" means the offering of copies of the fixed performance or the sound recording to the public, with the consent of the right holder: Provided, That copies are offered to the public in reasonable quality;
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202.7. "Broadcasting" means the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent; 202.8. "Broadcasting organization" shall include a natural person or a juridical entity duly authorized to engage in broadcasting; and 202.9 "Communication to the public of a performance or a sound recording" means the transmission to the public, by any medium, otherwise than by broadcasting, of sounds of a performance or the representations of sounds fixed in a sound recording. For purposes of Section 209, "communication to the public" includes making the sounds or representations of sounds fixed in a sound recording audible to the public. Section 203. Scope of Performers' Rights. - Subject to the provisions of Section 212, performers shall enjoy the following exclusive rights: 203.1. As regards their performances, the right of authorizing: (a) The broadcasting and other communication to the public of their performance; and (b) The fixation of their unfixed performance. 203.2. The right of authorizing the direct or indirect reproduction of their performances fixed in sound recordings, in any manner or form; 203.3. Subject to the provisions of Section 206, the right of authorizing the first public distribution of the original and copies of their performance fixed in the sound recording through sale or rental or other forms of transfer of ownership; 203.4. The right of authorizing the commercial rental to the public of the original and copies of their performances fixed in sound recordings, even after distribution of them by, or pursuant to the authorization by the performer; and 203.5. The right of authorizing the making available to the public of their performances fixed in sound recordings, by wire or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them. (Sec. 42, P.D. No. 49a) Section 204. Moral Rights of Performers. - 204.1. Independently of a performer's economic rights, the performer, shall, as regards his live aural performances or performances fixed in sound recordings, have the right to claim to be identified as the performer of his performances, except where the omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation. 204.2. The rights granted to a performer in accordance with Subsection 203.1 shall be maintained and exercised fifty (50) years after his death, by his heirs, and in default of heirs, the government, where protection is claimed. (Sec. 43, P.D. No. 49) Section 205. Limitation on Right. - 205.1. Subject to the provisions of Section 206, once the performer has authorized the broadcasting or fixation of his performance, the provisions of Sections 203 shall have no further application. 205.2. The provisions of Section 184 and Section 185 shall apply mutatis mutandis to performers. (n) Section 206. Additional Remuneration for Subsequent Communications or Broadcasts. - Unless otherwise provided in the contract, in every communication to the public or broadcast of a performance subsequent to the first communication or broadcast thereof by the broadcasting organization, the performer shall be entitled to an additional remuneration equivalent to at least five percent (5%) of the original compensation he or she received for the first communication or broadcast. (n) Section 207. Contract Terms. - Nothing in this Chapter shall be construed to deprive performers of the right to agree by contracts on terms and conditions more favorable for them in respect of any use of their performance. (n) CHAPTER XIII PRODUCERS OF SOUND RECORDINGS Section 208. Scope of Right. - Subject to the provisions of Section 212, producers of sound recordings shall enjoy the following exclusive rights:
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208.1. The right to authorize the direct or indirect reproduction of their sound recordings, in any manner or form; the placing of these reproductions in the market and the right of rental or lending; 208.2. The right to authorize the first public distribution of the original and copies of their sound recordings through sale or rental or other forms of transferring ownership; and 208.3. The right to authorize the commercial rental to the public of the original and copies of their sound recordings, even after distribution by them by or pursuant to authorization by the producer. (Sec. 46, P.D. No. 49a) Section 209. Communication to the Public. - If a sound recording published for commercial purposes, or a reproduction of such sound recording, is used directly for broadcasting or for other communication to the public, or is publicly performed with the intention of making and enhancing profit, a single equitable remuneration for the performer or performers, and the producer of the sound recording shall be paid by the user to both the performers and the producer, who, in the absence of any agreement shall share equally. (Sec. 47, P.D. No. 49a) Section 210. Limitation of Right. - Sections 184 and 185 shall apply mutatis mutandis to the producer of sound recordings. (Sec. 48, P.D. No. 49a) CHAPTER XIV BROADCASTING ORGANIZATIONS Section 211. Scope of Right. - Subject to the provisions of Section 212, broadcasting organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the following acts: 211.1. The rebroadcasting of their broadcasts; 211.2. The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts of the same; and 211.3. The use of such records for fresh transmissions or for fresh recording. (Sec. 52, P.D. No. 49) CHAPTER XV LIMITATIONS ON PROTECTION Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to: 212.1. The use by a natural person exclusively for his own personal purposes; 212.2. Using short excerpts for reporting current events; 212.3. Use solely for the purpose of teaching or for scientific research; and 212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44, P.D. No. 49a) CHAPTER XVI TERM OF PROTECTION Section 213. Term of Protection. - 213.1. Subject to the provisions of Subsections 213.2 to 213.5, the copyright in works under Sections 172 and 173 shall be protected during the life of the author and for fifty (50) years after his death. This rule also applies to posthumous works. (Sec. 21, first sentence, P.D. No. 49a) 213.2. In case of works of joint authorship, the economic rights shall be protected during the life of the last surviving author and for fifty (50) years after his death. (Sec. 21, second sentence, P.D. No. 49) 213.3. In case of anonymous or pseudonymous works, the copyright shall be protected for fifty (50) years from the date on which the work was first lawfully published: Provided, That where, before the expiration of the said period, the author's identity is revealed or is no longer in doubt, the provisions of Subsections 213.1. and 213.2 shall apply, as the case may be: Provided, further, That such works if not published before shall be protected for fifty (50) years counted from the making of the work. (Sec. 23, P.D. No. 49) 213.4. In case of works of applied art the protection shall be for a period of twenty-five (25) years from the date of making. (Sec. 24(B), P.D. No. 49a) 213.5. In case of photographic works, the protection shall be for fifty (50) years from publication of the work and, if unpublished, fifty (50) years from the making. (Sec. 24(C), P.D. 49a)
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213.6. In case of audio-visual works including those produced by process analogous to photography or any process for making audio-visual recordings, the term shall be fifty (50) years from date of publication and, if unpublished, from the date of making. (Sec. 24(C), P.D. No. 49a) Section 214. Calculation of Term. - The term of protection subsequent to the death of the author provided in the preceding Section shall run from the date of his death or of publication, but such terms shall always be deemed to begin on the first day of January of the year following the event which gave rise to them. (Sec. 25, P.D. No. 49) Section 215. Term of Protection for Performers, Producers and Broadcasting Organizations. - 215.1. The rights granted to performers and producers of sound recordings under this law shall expire: (a) For performances not incorporated in recordings, fifty (50) years from the end of the year in which the performance took place; and (b) For sound or image and sound recordings and for performances incorporated therein, fifty (50) years from the end of the year in which the recording took place. 215.2. In case of broadcasts, the term shall be twenty (20) years from the date the broadcast took place. The extended term shall be applied only to old works with subsisting protection under the prior law. (Sec. 55, P.D. No. 49a) CHAPTER XVII INFRINGEMENT Section 216. Remedies for Infringement. - 216.1. Any person infringing a right protected under this law shall be liable: (a) To an injunction restraining such infringement. The court may also order the defendant to desist from an infringement, among others, to prevent the entry into the channels of commerce of imported goods that involve an infringement, immediately after customs clearance of such goods. (b) Pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty. (c) Deliver under oath, for impounding during the pendency of the action, upon such terms and conditions as the court may prescribe, sales invoices and other documents evidencing sales, all articles and their packaging alleged to infringe a copyright and implements for making them. (d) Deliver under oath for destruction without any compensation all infringing copies or devices, as well as all plates, molds, or other means for making such infringing copies as the court may order. (e) Such other terms and conditions, including the payment of moral and exemplary damages, which the court may deem proper, wise and equitable and the destruction of infringing copies of the work even in the event of acquittal in a criminal case. 216.2. In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings. (Sec. 28, P.D. No. 49a) Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by provisions of Part IV of this Act or aiding or abetting such infringement shall be guilty of a crime punishable by: (a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for the first offense. (b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One hundred fifty thousand pesos (P150,000) to Five hundred thousand pesos (P500,000) for the second offense. (c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from five hundred thousand pesos (P500,000) to One million five hundred thousand pesos (P1,500,000) for the third and subsequent offenses. (d) In all cases, subsidiary imprisonment in cases of insolvency. 217.2. In determining the number of years of imprisonment and the amount of fine, the court shall consider the value of the infringing materials that the defendant has produced or manufactured and the damage that the copyright owner has suffered by reason of the infringement.
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217.3. Any person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the purpose of: (a) Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the article; (b) Distributing the article for purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or (c) Trade exhibit of the article in public, shall be guilty of an offense and shall be liable on conviction to imprisonment and fine as above mentioned. (Sec. 29, P.D. No. 49a) Section 218. Affidavit Evidence. - 218.1. In an action under this Chapter, an affidavit made before a notary public by or on behalf of the owner of the copyright in any work or other subject matter and stating that: (a) At the time specified therein, copyright subsisted in the work or other subject matter; (b) He or the person named therein is the owner of the copyright; and (c) The copy of the work or other subject matter annexed thereto is a true copy thereof, shall be admitted in evidence in any proceedings for an offense under this Chapter and shall be prima facie proof of the matters therein stated until the contrary is proved, and the court before which such affidavit is produced shall assume that the affidavit was made by or on behalf of the owner of the copyright. 218.2. In an action under this Chapter: (a) Copyright shall be presumed to subsist in the work or other subject matter to which the action relates if the defendant does not put in issue the question whether copyright subsists in the work or other subject matter; and (b) Where the subsistence of the copyright is established, the plaintiff shall be presumed to be the owner of the copyright if he claims to be the owner of the copyright and the defendant does not put in issue the question of his ownership. (c) Where the defendant, without good faith, puts in issue the questions of whether copyright subsists in a work or other subject matter to which the action relates, or the ownership of copyright in such work or subject matter, thereby occasioning unnecessary costs or delay in the proceedings, the court may direct that any costs to the defendant in respect of the action shall not be allowed by him and that any costs occasioned by the defendant to other parties shall be paid by him to such other parties. (n) Section 219. Presumption of Authorship. - 219.1. The natural person whose name is indicated on a work in the usual manner as the author shall, in the absence of proof to the contrary, be presumed to be the author of the work. This provision shall be applicable even if the name is a pseudonym, where the pseudonym leaves no doubt as to the identity of the author. 219.2. The person or body corporate whose name appears on a audio-visual work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker of said work. (n) Section 220. International Registration of Works. - A statement concerning a work, recorded in an international register in accordance with an international treaty to which the Philippines is or may become a party, shall be construed as true until the contrary is proved except: 220.1. Where the statement cannot be valid under this Act or any other law concerning intellectual property. 220.2. Where the statement is contradicted by another statement recorded in the international register. (n) CHAPTER XVIII SCOPE OF APPLICATION Section 221. Points of Attachment for Works under Sections 172 and 173. - 221.1. The protection afforded by this Act to copyrightable works under Sections 172 and 173 shall apply to: (a) Works of authors who are nationals of, or have their habitual residence in, the Philippines; (b) Audio-visual works the producer of which has his headquarters or habitual residence in the Philippines; (c) Works of architecture erected in the Philippines or other artistic works incorporated in a building or other structure located in the Philippines;
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(d) Works first published in the Philippines; and (e) Works first published in another country but also published in the Philippines within thirty days, irrespective of the nationality or residence of the authors. 221.2. The provisions of this Act shall also apply to works that are to be protected by virtue of and in accordance with any international convention or other international agreement to which the Philippines is a party. (n) Section 222. Points of Attachment for Performers. - The provisions of this Act on the protection of performers shall apply to: 222.1. Performers who are nationals of the Philippines; 222.2. Performers who are not nationals of the Philippines but whose performances: (a) Take place in the Philippines; or (b) Are incorporated in sound recordings that are protected under this Act; or (c) Which has not been fixed in sound recording but are carried by broadcast qualifying for protection under this Act. (n) Section 223. Points of Attachment for Sound Recordings. - The provisions of this Act on the protection of sound recordings shall apply to: 223.1. Sound recordings the producers of which are nationals of the Philippines; and 223.2. Sound recordings that were first published in the Philippines. (n) Section 224. Points of Attachment for Broadcasts. - 224.1. The provisions of this Act on the protection of broadcasts shall apply to: (a) Broadcasts of broadcasting organizations the headquarters of which are situated in the Philippines; and (b) Broadcasts transmitted from transmitters situated in the Philippines. 224.2. The provisions of this Act shall also apply to performers who, and to producers of sound recordings and broadcasting organizations which, are to be protected by virtue of and in accordance with any international convention or other international agreement to which the Philippines is a party. (n) CHAPTER XIX INSTITUTION OF ACTIONS Section 225. Jurisdiction. - Without prejudice to the provisions of Subsection 7.1(c), actions under this Act shall be cognizable by the courts with appropriate jurisdiction under existing law. (Sec. 57, P.D. No. 49a) Section 226. Damages. - No damages may be recovered under this Act after four (4) years from the time the cause of action arose. (Sec. 58, P.D. No. 49) CHAPTER XX MISCELLANEOUS PROVISIONS Section 227. Ownership of Deposit and Instruments. - All copies deposited and instruments in writing filed with the National Library and the Supreme Court Library in accordance with the provisions of this Act shall become the property of the Government. (Sec. 60, P.D. No. 49) Section 228. Public Records. - The section or division of the National Library and the Supreme Court Library charged with receiving copies and instruments deposited and with keeping records required under this Act and everything in it shall be opened to public inspection. The Director of the National Library is empowered to issue such safeguards and regulations as may be necessary to implement this Section and other provisions of this Act. (Sec. 61, P.D. No. 49) Section 229. Copyright Division; Fees. - The Copyright Section of the National Library shall be classified as a Division upon the effectivity of this Act. The National Library shall have the power to collect, for the discharge of its
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services under this Act, such fees as may be promulgated by it from time to time subject to the approval of the Department Head. (Sec. 62, P.D. 49a) PART V FINAL PROVISIONS Section 230. Equitable Principles to Govern Proceedings. - In all inter partes proceedings in the Office under this Act, the equitable principles of laches, estoppel, and acquiescence where applicable, may be considered and applied. (Sec. 9-A, R.A. No. 165) Section 231. Reverse Reciprocity of Foreign Laws. - Any condition, restriction, limitation, diminution, requirement, penalty or any similar burden imposed by the law of a foreign country on a Philippine national seeking protection of intellectual property rights in that country, shall reciprocally be enforceable upon nationals of said country, within Philippine jurisdiction. (n) Section 232. Appeals. - 232.1. Appeals from decisions of regular courts shall be governed by the Rules of Court. Unless restrained by a higher court, the judgment of the trial court shall be executory even pending appeal under such terms and conditions as the court may prescribe. 232.2. Unless expressly provided in this Act or other statutes, appeals from decisions of administrative officials shall be provided in the Regulations. (n) Section 233. Organization of the Office; Exemption from the Salary Standardization Law and the Attrition Law. 233.1. The Office shall be organized within one (1) year after the approval of this Act. It shall not be subject to the provisions of Republic Act No. 7430. 233.2. The Office shall institute its own compensation structure: Provided, That the Office shall make its own system conform as closely as possible with the principles provided for under Republic Act No. 6758. (n) Section 234. Abolition of the Bureau of Patents, Trademarks, and Technology Transfer. - The Bureau of Patents, Trademarks, and Technology Transfer under the Department of Trade and Industry is hereby abolished. All unexpended funds and fees, fines, royalties and other charges collected for the calendar year, properties, equipment and records of the Bureau of Patents, Trademarks and Technology Transfer, and such personnel as may be necessary are hereby transferred to the Office. Personnel not absorbed or transferred to the Office shall enjoy the retirement benefits granted under existing law, otherwise, they shall be paid the equivalent of one month basic salary for every year of service, or the equivalent nearest fractions thereof favorable to them on the basis of the highest salary received.(n) Section 235. Applications Pending on Effective Date of Act. - 235.1. All applications for patents pending in the Bureau of Patents, Trademarks and Technology Transfer shall be proceeded with and patents thereon granted in accordance with the Acts under which said applications were filed, and said Acts are hereby continued to be enforced, to this extent and for this purpose only, notwithstanding the foregoing general repeal thereof: Provided, That applications for utility models or industrial designs pending at the effective date of this Act, shall be proceeded with in accordance with the provisions of this Act, unless the applicants elect to prosecute said applications in accordance with the Acts under which they were filed. 235.2. All applications for registration of marks or trade names pending in the Bureau of Patents, Trademarks and Technology Transfer at the effective date of this Act may be amended, if practicable to bring them under the provisions of this Act. The prosecution of such applications so amended and the grant of registrations thereon shall be proceeded with in accordance with the provisions of this Act. If such amendments are not made, the prosecution of said applications shall be proceeded with and registrations thereon granted in accordance with the Acts under which said applications were filed, and said Acts are hereby continued in force to this extent for this purpose only, notwithstanding the foregoing general repeal thereof (n) Section 236. Preservation of Existing Rights. - Nothing herein shall adversely affect the rights on the enforcement of rights in patents, utility models, industrial designs, marks and works, acquired in good faith prior to the effective date of this Act. (n) Section 237. Notification on Berne Appendix. - The Philippines shall by proper compliance with the requirements set forth under the Appendix of the Berne Convention (Paris Act, 1971) avail itself of the special provisions regarding developing countries, including provisions for licenses grantable by competent authority under the Appendix. (n) Section 238. Appropriations. - The funds needed to carry out the provisions of this Act shall be charged to the appropriations of the Bureau of Patents, Trademarks, and Technology Transfer under the current General Appropriations Act and the fees, fines, royalties and other charges collected by the Bureau for the calendar year pursuant to Sections 14.1 and 234 of this Act. Thereafter such sums as may be necessary for its continued implementations shall be included in the annual General Appropriations Act. (n)
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Section 239. Repeals. - 239.1. All Acts and parts of Acts inconsistent herewith, more particularly Republic Act No. 165, as amended; Republic Act No. 166, as amended; and Articles 188 and 189 of the Revised Penal Code; Presidential Decree No. 49, including Presidential Decree No. 285, as amended, are hereby repealed. 239.2. Marks registered under Republic Act No. 166 shall remain in force but shall be deemed to have been granted under this Act and shall be due for renewal within the period provided for under this Act and, upon renewal shall be reclassified in accordance with the International Classification. Trade names and marks registered in the Supplemental Register under Republic Act No. 166 shall remain in force but shall no longer be subject to renewal. 239.3. The provisions of this Act shall apply to works in which copyright protection obtained prior to the effectivity of this Act is subsisting: Provided, That the application of this Act shall not result in the diminution of such protection. (n) Section 240. Separability. - If any provision of this Act or the application of such provision to any circumstances is held invalid, the remainder of the Act shall not be affected thereby. (n) Section 241. Effectivity. - This Act shall take effect on 1 January 1998. (n) Approved: June 6, 1997
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Republic of the Philippines Congress of the Philippines Metro Manila Twelfth Congress Third Regular Session
Begun and held in Metro Manila, on Monday, the twenty-eighth day of July, two thousand and three. Republic Act No. 9239
February 10, 2004
AN ACT REGULATING OPTICAL MEDIA, REORGANIZING FOR THIS PURPOSE THE VIDEOGRAM REGULATORY BOARD, PROVIDING PENALTIES THEREFOR, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: I. GENERAL PROVISIONS Section 1. Short Title. - This Act shall be known as the "Optical Media Act of 2003". Section 2. Policy. - It is hereby declared to be the policy of the State to ensure the protection and promotion of intellectual property rights. The unregulated mastering, manufacture, replication, importation and exportation of optical media in all forms is inimical to economic growth and public interest. Towards this end, the State shall institute the means to regulate the manufacture, mastering, replication, importation and exportation of optical media. Section 3. Definition of Terms. - For the Purpose of this Act, the following terms shall mean: (a) Economic Zone - the Special Economic Zones, Industrial Estates, Export Processing Zones and Free Trade Zones as defined in Republic Act No. 7916 or the PEZA Law including the Clark Special Economic Zone, the Cagayan Special Economic Zone, the Zamboanga City Special Economic Zone, the Subic Bay Freeport and other economic zones now in existence in the Philippines or as may be established in the future; (b) IP Code - Republic Act No. 8293 also known as the Intellectual Property Code of the Philippines; (c) License - the authority granted by the Optical Media Board (OMB) to establishments or entities registered with the OMB to engage in the business of mastering, manufacture, replication, importation or exportation of optical media; (d) Magnetic Media - a storage medium or device characterized by a base, usually plastic, coated with ferric oxide powder, in which visual and/or aural information, or software code, may be recorded or stored, including, but not limited to, magnetic tape, cassettes, video tape, diskettes, and floppy discs; (e) Manufacture - the act or business of producing optical media or devices containing sounds and/or images, or software code, including any work protected in Part IV of the IP Code, by mastering and/or replication. In relation to equipment, "manufacture" shall refer to the assembly or integration of various components into any equipment useful for the mastering, manufacture and/or replication of optical media; (f) Manufacturing Equipment - any and all equipment, machine or device, now known or to be known in the future, intended or design for the production or manufacture, by mastering and/or replication of optical media, optical media masters, or production parts thereof, including but not limited to, those which shall be listed in the Implementing Rules and Regulations (IRR) of this Act or as prescribed by the OMB. For the purpose of this Act, optical disc writers and such other devices used in personal computers not for commercial purposes shall not be considered as manufacturing equipment; (g) Manufacturing Material - any material such as, but not limited to, optical grade polycarbonate or polycarbonate substitutes with physical properties suitable for the manufacture of optical media; (h) Mastering - the act or business of producing a stamper made of glass, metal or other material, intended for the manufacture of optical media; (i) Optical Media - a storage medium or device in which information, including sounds and/or images, or software code, has been stored, either by mastering and/or replication, which may be accessed and read using a lens scanning
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mechanism employing a high intensity light source such as a laser or any such other means as may be developed in the future. The term shall include, but not be limited to, devices which shall be listed in the IRR of this Act, or as prescribed by the OMB; (j) OMB - the Optical Media Board; (k) Replication - the process of manufacturing optical media by reproducing or generating copies of the stamper in an injection molding machine or other forms of replicating equipment; and (l) Source Identification Code or SID Code - a system of codes to identify the source of all optical media mastered, manufactured or replicated by any establishment or entity. II. THE OPTICAL MEDIA BOARD Section 4. Reorganization. - To implement the policies and attain the objectives enunciated in this Act, the Videogram Regulatory Board (VRB) created under Presidential Decree No. 1987 is hereby reorganized into the Optical Media Board (OMB). The OMB shall be placed under the Office of the President (OP) and shall have its principal offices in Metropolitan Manila. Section 5. Coverage. - The authority of the OMB shall cover the entire territory of the Republic of the Philippines including the economic zones as defined in this Act and in Republic Act No. 7916. Section 6. The Board - The OMB shall be composed of four (4) ex officio members and five (5) regular members to be appointed by the President. The Chairperson shall be appointed by the President from among the five (5) regular members. The ex officio members of the Board shall be composed of the Secretary of the Department of Trade and Industry (DTI) or his duly authorized representative; the Secretary of the Department of the Interior and Local Government (DILG) or his duly authorized representative; the Secretary of the Department of Finance (DOF) or his duly authorized representative; and the Director-General of the Intellectual Property Office (IPO) or his duly authorized representative: Provided, That the authorized representatives shall have a rank not lower than the Assistant Secretary. The Five (5) regular members shall be composed of three (3) representatives from the private sector, each of whom shall be appointed from an identified industry relying on intellectual property protection, one (1) representative from the consumer organizations and one (1) representative from the academe. The regular members shall be nominated by their nationally recognized associations or organizations. The members of the Board shall elect from among themselves the Vice-Chairperson. The Chairperson and the regular members of the Board shall hold office for a term of three (3) years, unless sooner removed by the President for cause: Provided, That the Chairperson and the Regular members may not serve for more than two (2) consecutive terms: Provided, further, That if any member fails to complete his or her term, the person appointed to fill the vacancy shall serve only for the unexpired portion of the term. Section 7. Qualifications - The regular members of the Board shall be Filipino citizens, at least twenty-one (21) years old, of good moral character and standing in the community, and with proven competence in the industry they represent: Provided, that the Chairperson shall be at least thirty-five (35) years old, of known probity and managerial and administrative competence: Provided, finally, That at least two (2) members of the board must be members of the Philippine Bar. Section 8. Compensation - The Chairperson shall receive a salary and allowances based on current approved standardized government compensation. The Vice-Chairperson and members of the Board shall receive honoraria and allowances based on existing government accounting and auditing rules and regulations. Section 9. Meetings - The Board shall meet regularly at least once a moth or as often as necessary at the call of the Chairperson. A majority of the members of the Board shall constitute a quorum to do business. Section 10. Powers and Functions of the OMB. - The OMB shall have the following powers and functions: (a) Formulate and implement such policies and programs as are necessary for the accomplishment of the purposes of this Act;
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(b) Evaluate the qualifications of any individual, establishment or other entity to engage in the mastering, manufacture or replication of optical media. For this purpose, the OMB shall require such person to substantiate its capability to engage in said activities; (c) Supervise regulate, grant, or renew licenses for specific periods, or deny, suspend, or cancel the same, subject to such conditions as it may impose, for the activities enumerated in Section 13(a), (b) and (c); (d) Conduct inspections, by itself or in coordination with other competence agencies of the government, at anytime, with or without prior notice, of establishments or entities including those within the economic zones engaged in the activities as provided in Section 13(a), (b) and (c) of this Act, and employ reasonable force in the event that the responsible person or persons of such establishment or entity evades, obstructs, or refuses such inspection. For this purpose, the agents of the OMB shall be considered agents in authority; (e) Apply for or obtain search warrants from any court of law, or take into preventive custody any optical media and/or material or equipment, including parts, accessories and paraphernalia used for the mastering, manufacture or replication of optical media which are found in any premises if the OMB has reasonable ground to believe or suspect that these are evidence of violation of the provisions of this Act; (f) Act as complainant in the criminal prosecution of violators of this Act; (g) Hear and resolve administrative cases against violators of this Act and impose administrative sanctions including, but not limited to, the imposition of fines and penalties; confiscation of optical media; and suspension, non-renewal or cancellation of the license to operate and/or closure of establishments or entities that violate the provisions of this Act. For this purpose, the Board shall have the power to issue subpoena or subpoena duces tecum to compel the attendance of witnesses and production of documents and other effects; (h) Call upon law enforcement agencies and the managing authorities in the economic zones for assistance in the implementation and enforcement of its decisions, orders, rules and regulations; (i) To deputize, whenever necessary, provincial governors, city and municipal mayors, and representatives of the national government agencies, organizations representing copyright owners, neighboring rights owners and concerned sectors to help monitor compliance with and report to the OMB any violation of this Act; (j) Require persons, establishments and entities engaged in the activities in Section 13 to keep and maintain for a period of at least five (5) years true and complete records of all activities related to the conduct of its business. For this purpose, the Board may, at any time, require the production of such records and samples of optical media from each mastering, manufacturing or replicating line; (k) Levy, assess and collect, and periodically adjust and/or revise the rates of fees and charges for the issuance of licenses granted under this Act; (l) Establish support offices as may be necessary; (m) Create and maintain a database, and regularly publish data containing the list and activities of registered and/or licensed optical media and other related establishments. Any enforcement agency, including the Bureau of Customs, may refer to this database for enforcement and/or seizure; (n) Prescribe the internal and operational procedures for the exercise of its powers and functions, the performance of its duties and responsibilities and other related matters; and (o) Exercise such other powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act, and to perform other related duties and responsibilities as may be directed by the President. Section 11. Chief Executive Officer. - The Chairperson of the Board shall be the Chief Executive officer (CEO). The CEO shall exercise the following powers and functions: (a) Execute and administer the policies, decisions, orders, resolutions and the rules and regulations issued by the Board; (b) Establish the internal organization and administrative procedures of the OMB, and recommend to the Board the appointment, transfer, detail, and suspension or dismissal for cause of its administrative and subordinate personnel; (c) Direct and supervise the operations and the internal affairs of the OMB; (d) Submit an annual budget to the Board for its approval;
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(e) Delegate his or her authority, in whole or in part, to other members of the Board, in accordance with the rules and regulations of the OMB; and (f) Perform such other powers and functions as may be authorized by the Board or the President. Section 12. The OMB Secretariat. - The OMB shall have a Secretariat, herein created, headed by an Executive Director who shall assist the Chairperson/CEO in the day-to-day operations of the OMB. The Executive Director shall be appointed by the Chairperson subject to the approval of the Board. His term shall be coterminous with the CEO.
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REPUBLIC ACT NO. 8047 AN ACT PROVIDING FOR THE DEVELOPMENT OF THE BOOK PUBLISHING INDUSTRY THROUGH THE FORMULATION AND IMPLEMENTATION OF A NATIONAL BOOK POLICY AND A NATIONAL BOOK DEVELOPMENT PLAN. Section 1. Title. — This Act shall be known as the "Book Publishing Industry Development Act." Sec. 2. Declaration of Policy. — It is recognized that the book publishing industry has a significant role in national development, considering that books which are its products are instrumental in the citizenry's intellectual, technical and cultural development — the basic social foundation for the economic and social growth of the country. Books are the most effective and economical tools for achieving educational growth, for imparting information and for recording, preserving, and disseminating the nation's cultural heritage. Accordingly, it is hereby declared a policy of the State to promote the continuing development of the book publishing industry, with the active participation of the private sector, to ensure an adequate supply of affordable, qualityproduced books not only for the domestic but also for the export market. For this purpose, the Government shall formulate, adopt, and implement a National Book Policy and a corresponding National Book Development Plan that will serve as the enduring basis for fostering the progressive growth and viability of the book industry. SECTION 3. Definition of Terms. — For purposes of this Act, the terms below shall be construed to mean, except where explicitly indicated or where the context clearly indicates otherwise, as follows: (a) Book — as defined by the United Nations Educational Scientific and Cultural Organization (UNESCO), a printed non-periodical publication of at least forty-eight (48) pages, exclusive of cover pages, published in the country and made available to the public. (b) Textbook — a book which is an exposition of generally accepted principles in one (1) subject, intended primarily as a basis for instruction in a classroom or pupil-book-teacher situation. (c) Book Title — refers to a particular book of which a number of copies are printed. (d) National Book Policy — a statement of the intention and philosophy of the State as a basis for the formulation and implementation of measures for the development, production and distribution of books. (e) National Book Development Plan — refers to the integrated approach for fostering book development, consisting of the totality of the procedures and systems for attaining the balanced growth of the various components of book development and production, including preparation and distribution of books. (f) National Development — is used in the most general sense to refer to the country's progress as well as to the processes or measures that contribute to such progress. (g) Book Publishing — a process of choosing and making books dealing with everything known to the human spirit, philosophy, religious beliefs, intellectual ideas, the physical world, all the arts and the sciences. (h) Book Development — a condition not only of having more output but also different kinds of outputs than were previously produced, as well as changes in the technical and institutional arrangements by which output is produced and distributed. (i) Related Activities — the domestic manufacturing industries which have direct bearing on the long term viability of the book publishing industry. Sec. 4. National Book Policy. — The National Book Policy shall conform to the policy provided for in Section 2 hereof and shall have the following basic purposes and objectives: (a) to create condition conducive to development, production and distribution of books, especially the acquisition and adoption of state-of-the-art technology, equipment and machineries on book publishing; (b) to obtain priority status for the book publishing industry; (c) to ensure an adequate, affordable and accessible supply of books for all segments of the population; (d) to promote book readership especially among the young and neo-literates, through programs promoting literary and good reading habits, book fairs and exhibits; and an efficient nationwide system of libraries and reading centers especially in the rural areas; (e) to promote the development of indigenous authorship and of translations among various language groups in the country; (f) to promote the translation and publication of scientific and technical books and classic works in literature and the arts; (g) to promote the effective distribution of books in the domestic as well as in the international markets through an efficient and reliable postal and transport delivery system; (h) to foster the development of the skills of personnel engaged in book publishing through in-service training programs and formal degree and non-degree book publishing courses in schools;
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(i) to respect and inculcate the concept of intellectual property ownership and to protect the rights of authors and publishers by strictly enforcing copyright laws and providing legal assistance to authors and publishers in suits related thereto; (j) to reaffirm and ensure the country's commitment to the UNESCO principle of free flow of information and other related provisions as embodied in the Florence Agreement and in other similar international agreements; and (k) to promote whenever appropriate the use of recycled/waste paper and other inexpensive local materials in the manufacture of books to reduce the cost of such locally produced books. Sec. 5. National Book Development Plan. — The National Book Development Plan shall include the specific measures needed to realize the purposes and objectives of the National Book Policy.The formulation of the plan shall involve: (a) the collection and tabulation of data on book production covering such areas as paper production, supply and consumption, publishing equipment and machinery and existing distribution networks; (b) a survey on the availability of adequate and proper manpower and supporting skills needed by the publishing industry such as authors, editors, designers and illustrators, marketing personnel and printers; (c) a survey of existing legislation affecting the book industry both at the national and international levels; (d) a survey of professional training capability as well as of reading habits and attitudes; and (e) consultations with all segments of the book industry concerned in planning for and preparing the National Book Development Plan on the basis of the results of the aforementioned surveys. The National Book Development Plan shall have the following components and/or requisites: i. a human resource development program for book personnel; ii. guidelines for ethical practices in the book trade; iii. measures for attaining balanced attention and bridging the communication gap among people living in different parts of the country; iv. provisions for a strong and effective mechanism for book development in the country; v. provisions for producing books or other periodicals such as appropriate or selected comics as instructional or teaching material for such various categories of readers in the country as pre-school children and school children, school drop-outs, neo-literates, the handicapped, professionals, general readers and ethnic groups; and vi. measures for addressing the needs and problems of the book development industry as indicated in the surveys conducted. Sec. 6. Registration of Entities. — Persons and enterprises engaged in book publishing and its related activities shall register with the National Book Development Board. Sec. 7. Governing Board; Composition; Terms, Powers and Functions. — There is hereby created a National Book Development Board hereinafter referred to as the Board, which shall be under the administrative supervision of the Office of the President. The Governing Board shall be composed of eleven (11) members who shall be appointed by the President of the Philippines. The eleven (11) members shall be composed of: (a) Five (5) representatives of the government to be chosen from the Department of Education, Culture and Sports (DECS), Department of Trade and Industry (DTI), Department of Science and Technology (DOST), National Commission for Culture and Arts (NCCA), and nominees by the Commission on Higher Education (CHED), and Technical Education Skills Development Authority (TESDA) from the academe and training institutions, respectively; and (b) Six (6) representatives from the nominees of organizations of private book publishers, printers, writers, book industry related activities, students and the private education sector, preferably representatives of the three (3) main islands of the country, in view of the substantial progress made by other regions in the book publishing industry. The appointees to the Board shall be one of the three (3) nominees of the concerned nationwide organizations duly incorporated with the Securities and Exchange Commission (SEC) and with membership, whenever feasible, in all the cities and provinces throughout the country. The members of the Board shall elect a chairman from among themselves. The DECS representative in the Board shall be the ex-officio vice-chairman of the Board. The members of the Board shall serve for a term of three (3) years:Provided, That no member shall serve for more than (2) consecutive terms. Provided, further, that the terms of the first appointees from the private sector shall be staggered thus: the first two (2) representatives of the private sector shall serve for three (3) years; the second two (2) for two (2) years; and the third two (2) for one (1) year:Provided, furthermore, That the appointee from the academe shall serve for a period of three (3) years and the appointee from training institutions shall serve for a term of two (2) years. The members of the Board shall serve and continue to hold office until their successors shall have been appointed and qualified. Should a member of the Board fail to complete his term, his successor shall be appointed by the President of the Philippines but only for the unexpired portion of the term. No person shall be appointed to the Board unless he is a citizen of the Philippines, at least thirty (30) years of age, and of established competence and integrity.
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For administrative purposes, the Board shall be under the Office of the President. The members of the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules and regulations. Sec. 8. Powers and Functions. — The Governing Board shall have the following powers and functions: (a) assume responsibility for carrying out and implementing the policies, purposes and objectives provided for in this Act; (b) formulate plans and programs as well as operational policies and guidelines for undertaking activities relative to promoting book development, production and distribution as well as an incentive scheme for individual authors and writers; (c) formulate policies, guidelines and mechanisms to ensure that editors, compilers and especially authors are paid justly and promptly royalties due them for reproduction of their works in any form and number and for whatever purpose; (d) conduct or contract research on the book publishing industry including monitoring, compiling and providing data and information of book production; (e) provide a forum for interaction among private publishers, and, for the purpose, establish and maintain liaison with all the segments of the book publishing industry; (f) ask the appropriate government authority to ensure effective implementation of the National Book Development Plan; (g) promulgate rules and regulations for the implementation of this Act in consultation with other agencies concerned, except for Section 9 hereof on incentives for book development, which shall be the concern of appropriate agencies involved; (h) approve, with the concurrence of the Department of Budget and Management (DBM), the annual and supplemental budgets submitted to it by the Executive Director; (i) own, lease, mortgage, encumber or otherwise real and personal property for the attainment of its purposes and objectives; (j) enter into any obligation or contract essential to the proper administration of its affairs, the conduct of its operations or the accomplishment of its purposes and objectives; (k) receive donations, grants, legacies, devices and similar acquisitions which shall form a trust fund of the Board to accomplish its development plans on book publishing; (l) import books or raw materials used in book publishing which are exempt from all taxes, customs duties and other charges in behalf of persons and enterprises engaged in book publishing and its related activities duly registered with the Board; (m) promulgate rules and regulations governing the matter in which the general affairs of the Board are to be exercised and amend, repeal, and modify such rules and regulations whenever necessary: (n) recommend to the President of the Philippines nominees for the positions of the Executive Officer and Deputy Executive Officer of the Board; (o) adopt rules and procedures and fix the time and place for holding meetings: Provided, That at least one (1) regular meeting shall be held monthly; (p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other related activities on book development such as indigenous authorship, intellectual property rights, use of alternative materials for printing, distribution and others; and (q) Exercise such other powers and perform such other duties as may be required by the law. Sec. 9. The Secretariat. — The Board shall have a permanent Secretariat under an Executive Officer, who shall be appointed by the Board. The authority and responsibility for the day-to-day management and direction of the operations of the affairs of the Board shall be vested in the Executive Officer. The Executive Officer shall be assisted by a Deputy Executive Officer. Both the Executive Officer and the Deputy Executive Officer shall be appointed by the President of the Philippines. They shall hold office unless sooner terminated in accordance with applicable laws. No person shall be appointed Executive Officer and Deputy Executive Officer of the Board unless he is a citizen of the Philippines, at least thirty (30) years of age, and of established competence and integrity. The Executive Officer shall have the following powers and functions: (a) Execute, administer and implement the policies and measures approved by the Board; (b) Direct and manage the affairs and operations of the Board;
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(c) Submit within thirty (30) days after the close of every calendar year an annual report to the Board and such other reports it may require; (d) Submit an annual budget and such supplemental budgets as may be necessary to the Board for its consideration and approval; (e) Represent the Board in all transactions with other offices, agencies, and instrumentalities of government and with all persons and other entities, public or private, domestic or foreign; (f) Appoint, subject to the confirmation of the Board, and discipline for cause in accordance with Civil Service laws, rules and regulations, the Board's officers and personnel below the level of Deputy Executive Officer; (g) Delegate in writing, authority, as may be necessary to subordinate officers and personnel of the Board; and (h) Perform such other duties as may be assigned to him by the Board, which according to its sound discretion, are necessary for the efficient and effective implementation of this Act. The Deputy Executive Officer shall have the following powers and functions; assist the Executive Officer in the discharge of his powers and functions; act as Executive Officer during the Executive Officer's absence, sickness or other temporary disability; and discharge such other powers and perform such other functions as may be required by the Executive Officer of the Board. The structural and functional organization, compensation plan and the staffing pattern of the Secretariat shall be approved by the Board upon the recommendation of the Executive Officer. The Board may create, abolish, merge, or otherwise reorganize positions therein as may be necessary for the economical, effective and efficient discharge of its functions and responsibilities subject to the existing laws. Sec. 10. Public School and Textbook Publishing. — The DECS shall consult with the Board in prescribing the guidelines, rules and regulations in preparing the minimum learning competencies and/or prototypes and other specifications for books required by public elementary and secondary schools. The DECS shall confine itself to: (a) preparing the minimum learning competencies, and/or prototypes and other specifications for books and/or manuscripts called for; (b) testing, evaluating, selecting and approving the manuscripts or books to be submitted by the publishers for multiple adoption; (c) providing assistance in the distribution of textbooks to the public school systems; and (d) promulgating with the participation and assistance of the Board rules and regulations for the private book publishers in the call, testing evaluation, selection, approval, as well as production specification and acquisition of public school textbooks. The printing of public elementary and secondary school textbooks shall be done on a regional or provincial level, whenever economically feasible. The DECS shall within a period of not more than three (3) years from the effectivity of this Act phase out its elementary and secondary textbook publication and distribution functions and shall support the phasing in of private sector publishers to assume these functions here. For its part, the Board shall monitor and conduct an annual evaluation of the progress of the shift of functions from the DECS to the private sector. Sec. 11. Participation of Private Publishers in the Public School Textbook Program. — Guided by the minimum learning competencies for the elementary level, the desired learning competencies for the secondary level, and other specifications prepared by the DECS, publishers shall develop and submit to the DECS those syllabi and/or prototypes and manuscripts or books intended for use in the public schools for testing, evaluation, selection and approval. Upon approval of the manuscripts or books, publishers shall produce and supply the textbooks as ordered by the DECS. Sec. 12. Incentives for Book Development. — Persons and enterprises engaged in book publishing and its related activities duly registered with the National Book Development Board shall be entitled to the applicable fiscal and non-fiscal incentives as provided for underExecutive Order No. 226, otherwise known as the Omnibus Investment Code, as amended, subject to the qualifications and requirements set by the Board of Investments (BOI): Provided, That book development activities shall always be included in the Investment Priorities Plan (IPP). In the case of tax and duty-free importation of books or raw materials to be used in book publishing, the Board and its duly authorized representatives shall strictly monitor the quality and volume of imported books and materials as well as their distribution and the utilization of the said imported materials. The Board shall also recommend to the proper prosecuting agencies any violations of the conditions of the duty-free importation. Books, magazines, periodicals, newspapers, including book publishing and printing, as well as its distribution and circulation, shall be exempt from the coverage of the expanded value added tax law.
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Sec. 13. Implementing Rules and Regulations. — The Board, in consultation with the BOI, Bureau of Customs (BOC), and other appropriate agencies from the private and government sectors, shall issue guidelines and prescribe rules and regulations for Sections 6, 10, and 12 within one hundred twenty (120) days after the effectivity of this Act which shall be published in two (2) newspapers of general circulation. A copy of such guidelines, rules, and regulations shall be furnished the Congress of the Philippines. Sec. 14. Penalties. — Any person who violates any provision of this Act or the terms and conditions of the rules and regulations issued pursuant thereto, or aids or abets in any manner any violation shall be subject to a fine not exceeding One hundred thousand pesos (P100,000.00) or imprisonment of not more than five (5) years or both, at the discretion of the court. If the violation is committed by a juridical entity, it shall be subject to a fine not exceeding Five hundred thousand pesos (P500,000.00).The president and/or officials responsible therefore shall also be subject to a fine not exceeding Seven hundred thousand pesos (P700,000.00). In addition to the foregoing, any person, firm, or juridical entity involved shall be subject to forfeiture of all benefits granted under this Act. The SEC shall have the power to impose administrative sanctions as provided herein for any violation of this Act or its implementing rules and regulations. Sec. 15. Transfer of Assets, Properties, Funds and Liabilities. — Assets, properties, and liabilities of the Instructional Material Corporation (IMC) and the Instructional Material Development Center (IMDC) under the DECS shall be transferred to the National Book Development Board. Sec. 16. Appropriations. — For the initial operating expenses of the Board and the Secretariat, the amount of Five million (P5,000,000.00) pesos is hereby appropriated to be charged to the Office of the President. Thereafter, it shall submit to the Department of Budget and Management its proposed budget for inclusion in the General Appropriations Act. Sec. 17. Transitory Provisions. — Within a period of one hundred eighty (180) days after the approval of this Act, the Board shall be constituted to start its operation. All other government offices having the functions similar to those of the Board shall then cease to perform such functions. These functions shall henceforth be deemed transferred to the Board. This notwithstanding , the DECS shall maintain an office and staff to perform functions specified herein relative to its participation in the government textbook program. Employees of the IMDC and the IMC who are not hired by the Board and/or who do not opt to remain with DECS or are laid off as a result of the implementation of this Act, within the transition period provided herein shall be entitled to gratuity at the rate of one and one fourth (1 1/4) month's salary for every year of service in the government or a fraction thereof on the basis of the highest salary received, in addition to the retirement and/or gratuity, benefits or pensions under R.A. No. 6656 and other existing Retirement Laws. Unexpected funds of the IMDC and of the IMC shall revert to the Board, after reserving the amount necessary to pay the benefits of those separated or retired from the service. Sec. 18. Separability Clause. — If any part or section of this Act is declared unconstitutional for any reason whatsoever such declaration shall not in any way affect other parts or sections of this Act. Sec. 19. Repealing Clause. — Executive Order No. 492, series of 1991, as amended; except as herein indicated is hereby repealed. All other laws, decrees, rules, regulations and other administrative issuances or provisions thereof which are contrary to or inconsistent herewith are hereby repealed or modified accordingly. Sec. 20. Effectivity. — This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or in any newspaper of general circulation. Approved: June 7, 1995
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Republic of the Philippines Congress of the Philippines Metro Manila Fourteenth Congress Second Regular Session
Begun and held in Metro Manila, on Monday, the twenty-eighth day of July, two thousand eight. Republic Act No. 9711
August 18, 2009
AN ACT STRENGTHENING AND RATIONALIZING THE REGULATORY CAPACITY OF THE BUREAU OF FOOD AND DRUGS (BFAD) BY ESTABLISHING ADEQUATE TESTING LABORATORIES AND FIELD OFFICES, UPGRADING ITS EQUIPMENT, AUGMENTING ITS HUMAN RESOURCE COMPLEMENT, GIVING AUTHORITY TO RETAIN ITS INCOME, RENAMING IT THE FOOD AND DRUG ADMINISTRATION (FDA), AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NO. 3720, AS AMENDED, AND APPROPRIATING FUNDS THEREOF Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. The Bureau of Food and Drugs (BFAD) is hereby renamed the Food and Drug Administration (FDA). Section 2. This Act shall be known as the "Food and Drug Administration (FDA) Act of 2009". Section 3. It is hereby declared a policy of the State to adopt, support, establish, institutionalize, improve and maintain structures, processes, mechanisms and initiatives that are aimed, directed and designed to: (a) protect and promote the right to health of the Filipino people; and (b) help establish and maintain an effective health products regulatory system and undertake appropriate health manpower development and research, responsive to the country's health needs and problems. Pursuant to this policy, the State must enhance its regulatory capacity and strengthen its capability with regard to the inspection, licensing and monitoring of establishments, and the registration and monitoring of health products. Section 4. This Act has the following objectives: (a) To enhance and strengthen the administrative and technical capacity of the FDA in the regulation of establishments and products under its jurisdiction; (b) To ensure the FDA's monitoring and regulatory coverage over establishments and products under its jurisdiction; and (c) To provide coherence in the FDA's regulatory system for establishments and products under its jurisdiction. Section 5. Section 4 of Republic Act No. 3720, as amended, is hereby further amended to read as follows: "SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office of the Secretary and shall have the following functions, powers and duties: "(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant to the same; "(b) To assume primary jurisdiction in the collection of samples of health products; "(c) To analyze and inspect health products in connection with the implementation of this Act; "(d) To establish analytical data to serve as basis for the preparation of health products standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of container; "(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of appropriate authorization and spot-check for compliance with regulations regarding operation of manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and other establishments and facilities of health products, as determined by the FDA;
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"x x x "(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate authorizations to ensure safety, efficacy, purity, and quality; "(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers, consumers, and non-consumer users of health products to report to the FDA any incident that reasonably indicates that said product has caused or contributed to the death, serious illness or serious injury to a consumer, a patient, or any person; "(j) To issue cease and desist orders motu propio or upon verified complaint for health produts, whether or not registered with the FDA Provided, That for registered health products, the cease and desist order is valid for thirty (30) days and may be extended for sixty (60) days only after due process has been observed; "(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have caused the death, serious illness or serious injury to a consumer or patient, or is found to be imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all concerned to implement the risk management plan which is a requirement for the issuance of the appropriate authorization; "(l) To strengthen the post market surveillance system in monitoring health products as defined in this Act and incidents of adverse events involving such products; "(m) To develop and issue standards and appropriate authorizations that would cover establishments, facilities and health products; "(n) To conduct, supervise, monitor and audit research studies on health and safety issues of health products undertaken by entities duly approved by the FDA; "(o) To prescribe standards, guidelines, and regulations with respect to information, advertisements and other marketing instruments and promotion, sponsorship, and other marketing activities about the health products as covered in this Act; "(p) To maintain bonded warehouses and/or establish the same, whenever necessary or appropriate, as determined by the director-general for confiscated goods in strategic areas of the country especially at major ports of entry; and "(q) To exercise such other powers and perform such other functions a8 may be necessary to carry out its duties and responsibilities under this Act." Section 6. Section 5 of Republic Act No. 3720, as amended, is hereby further amended and new subsections are added to read as follows: "SEC. 5. The FDA shall have the following centers and offices: "(a) The Centers shall be established per major product category that is regulated, namely: "(1) Center for Drug Regulation and Research (to include veterinary medicine, vaccines and biologicals); "(2) Center for Food Regulation and Research; "(3) Center for Cosmetics Regulation and Research (to include household hazardous/urban substances); and "(4) Center for Device Regulation, Radiation Health, and Research. "These Centers shall regulate the manufacture, importation, exportation, distribution, sale, offer for sale, transfer, promotion, advertisement, sponsorship of, and/or, where appropriate, the use and testing of health products. The Centers shall likewise conduct research on the safety, efficacy, and quality of health products, and to institute standards for the same. "(b) Each Center shall be headed by a director. The Centers shall be so organized such that each will have, at least, the following divisions: "(1) Licensing and Registration Division, which shall be responsible for evaluating health products and establishments as covered by this Act for the purpose of issuance of authorizations and conditions to be observed; "(2) Product Research and Standards Development Division, which shall be responsible for the conduct of research, development of standards and regulations, compliance monitoring, and the oversight and audit of related researches that would ensure safety, quality, purity and efficacy of health products, as covered in this Act; and
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"(3) Laboratory Support Division, which shall be responsible for the conduct of research and appropriate testa and calibration, analyses and trials of products including, but not limited to, assays, and the conduct of oversight and/or audit of centers conducting bioavailability and bioequivalence tests and other tests as covered by this Act. It shall likewise provide direct line support to the centers which shall be separate and distinct per major product category that is regulated. "(c) The Administration and Finance Office headed by the deputy director-general for administration and finance shall have, at least, the following divisions: the Human Resource Development Division; Property and Logistics Management Division; Human Resource Management Division; Assets and Financial Management Division; and the Information and Communication Technology Management Division. "(d) The Policy and Planning Office which shall be under the Office of the Director-General shall have, at least, a training, advocacy and communications division and shall monitor the performance of the centers for product research and evaluation and standards development. "(e) The Field Regulatory Operations Office headed by the deputy director-general for field regulatory operations shall include, among others, all the field offices, field or satellite laboratories and the regulatory enforcement units. "(f) The Legal Services Support Center shall provide legal services to the entire FDA and shall be directly under the Office of the Director-General." Section 7. Section 6 of Republic Act No. 3720, as amended, is hereby further amended, to read as follows: "(a) The FDA shall be headed by a director-general, with the rank of undersecretary, who shall be tasked, among others, to determine the needed personnel and to appoint personnel, below the assistant director level in coordination with the Secretary of Health. "(b) The director-general shall be assisted by two (2) deputy directors-general, one for administration and finance and another for field regulatory operations. "(c) The director-general and deputy directors-general shall be appointed by the President of the Republic of the Philippines. "(d) The director-general shall, referably, possess either a university degree in medicine or at least the relevant master's degree in pharmaceutical sciences or allied sciences, or equivalent executive course in any regulatory management. In addition, he/she shall have management experience in his/her field of discipline or profession and in any development, manufacturing, regulatory work or quality assurance of products as covered in this Act. "(e) The Deputy Director-General for Field Regulatory Operations of the FDA shall, preferably, possess the relevant master's degree in pharmaceutical sciences or allied sciences, or equivalent executive course in any regulatory management. In addition, he/she shall have management experience in his/her field of discipline or profession and in any development, manufacturing, regulatoly work or quality assurance of products as covered in this Act. "(f) The Deputy Director-General for Administration and Finance of the FDA shall he a certified public accountant or shall possess a master's degree in accounting, management, economics or any business course, and must have management experience in a position related to his/her field of discipline or profession. "(g) A person who was previously employed in a regular full-time capacity regardless of its consultative designation at higher management supervisory levels in regulated establishments, including related foundations, shall be disqualified from appointment as director-general and deputy director-general within three (3) years from termination of employment with the said establishment or foundation. All persons who are candidates for appointment as director-general and deputy director-general must disclose all their incomes for the past three (3) years from all establishments regulated by this Act. The director-general and the two (2) deputy directors-gencral shall, upon assumption into office, declare any conflict of interest with any establishment covered by the FDA, including their foundiitions. "(h) Each center and field office shall be headed by a director director who shall be assisted by an assistant director. These directors shall be appointed by the Secretary of Health. "(i) The existing directors of the Bureau of Health Devices and Technology (BHDT) and division chiefs of the BFAD shall be given preference for appointment as directors and assistant directors of their respective centers: Provided, That if the current officers of the BFAD and the BHDT applying for the above positions lack the required third level civil service eligibility, they will have to comply with the said requirement within three (3) yearn from their appointment, otherwise their appointment shall be revoked immediately." Section 8. Section 7 of Republic Act No. 3720, as amended, is hereby further amended to read as follows: "The FDA shall review its staffing pattern and position titles subject to the approval of the Secretary of Health."
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Section 9. Section 10, subsections (a), (e), (f), (g), (h), (i), (q),(r), (v), and (w) of Republic Act No. 3720, as amended, are hereby further amended, and new subsections (x), (y), (z), (aa), (bb), (cc), (dd), (ee), (ff), (gg), (hh), (ii), (jj), (kk), (ll), and (mm) are hereby added to read as follows: "SEC. 10. For the purposes of this Act, the term: "(a) 'FDA' means the Food and Drug Administration. "x x x "(e) 'Food' means any processed substance which is intended for human consumption and includes drink for man, beverages, chewing gum and any substances which have been used as an ingredient in the manufacture, preparation or treatment of food. "(f) 'Drug' means: (1) articles recognized in official pharmacopeias and formularies, including official homeopathic pharmacopeias, or any documentary supplement to any of them, which are recognized and adopted by the FDA; (2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; (3) articles (other than food) intended to affect the structure of any function of the body of humans or animals; or (4)articles intended for use as a component of any articles specified in clauses (1), (2), or (3) but do not include devices or their components, parts or accessories. "(g) 'Device' means medical devices, radiation devices and health-related devices. "(1) 'Medical device' means any instrument, apparatus, implement, machine, appliance, implant, in-vitro reagent or calibrator, software, material, or other similar or related article intended by the manufacturer to be used alone, or in combination, for human beings for one or more of the specific purpose(s) of: diagnosis, prevention,, monitoring, treatment or alleviation of disease; diagnosis, monitoring, treatment, alleviation of, or compensation for an injury; investigation, replacement, modification, or support of the anatomy or of a physiological process; supporting or sustaining life; preventing infection; control of conception; disinfection of medical devices; and providing information for medical or diagnostic purposes by means of in-vitro examination of specimens derived from the human body. This device does not achieve its primary intended action in or on the human body by pharmacological, immunological, or metabolic means but which may be assisted in its intended function by such means. "(2) 'Radiation device' means an electrical or electronic apparatus emitting any ionizing or non-ionizing electromagnetic or particulate radiation; or any sonic; infrasonic, or ultrasonic wave. It includes ionizing radiation emitting equipment which is not intentionally designed to produce radioactive materials. "(3) 'Health-related device' means any device not used in health care but has been determined by the FDA to adversely affect the health of the people. "(h) 'Cosmetics' means any substance or preparation intended to be placed in contact with the various external parts of the human body or with the teeth and the mucous membranes of the oral cavity, with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance and/or correcting body odor, and/or protecting the body or keeping them in good condition. "(i) 'Label' means a display of written, printed, or graphic matter upon, the immediate container of any article and a requirement made by or under authority of this Act that any word, statement, or other information appearing on the label shall not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if any there be, of the retail package of such article, or easily legible through the outside container or wrapper. "x x x "(q) 'Director-general' means the head of the FDA. "(r) 'Distribute' means the delivery or sale of any health product for purposes of distribution in commerce, except that such term does not include the manufacture or retail of such product. "x x x "(v) 'Manufacturer', in relation to a health product, means an establishment engaged in any and all operations involved in the production of health products including preparation, processing, compounding, formnlating, filling, packing, repacking, altering, ornamenting, finishing and labeling with the end in view of its storage, sale or distribution: Provided, That the term shall not apply to the compounding and filling of prescriptions in drugstores and hospital pharmacies. A trader shall be categorized as a manufacturer. "(w) 'Veterinary drugs' means drugs intended for use for animals including any drug intended for use in animal feeds but not including animal feeds within the contemplation of the implementing rules and regulations.
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"(x) 'Assay' is an analysis to determine the (1) presence of a substance and the amount of that substance, or (2) the pharmaceutical potency of a drug. "(y) 'Authorization' means a permission embodied in a document granted by the FDA to a natural or juridical person who has submitted an application to implement the manufacture, importation, exportation, sale, offer for sale, distribution, transfer, and/or, where appropriate, the use, testing, promotion, advertising, or sponsorship of health products. The authorization can take the form of a permit, a license, a certificate of registration, of accreditation, of compliance, or of exemption, or any similar document. "(z) 'Bioavailability' means the rate and extent to which the active ingredient or therapeutic ingredient is absorbed from a drug and becomes available at the site of drug action. "(aa) 'Bioequivalence' means the rate and extent of absorption to which the drugs do not show a significant difference from the rate and extent of the listed drug when administered at the same molar dose of the therapeutic ingredient under similar experimental conditions in either a single dose or multiple doses. Bioequivalence shall also refer to the absence of a signiticant difference on the rate and extent-to-which the active ingredient(s) of the sample and reference drug becomes available at the site of drug action when administered under the same molar dose and under similar conditions. "(bb) 'Distributor/importer/exporter' means any establishment that imports or exports raw materials, active ingredients and/or finished products for its own use or for wholesale distribution to other establishments or outlets. If the distributor/importer/exporter sells to the general public, it shall be considered a retailer. "(cc) 'Distributor/wholesaler' means any establishment that procures raw materials, active ingredients and/or finished products from local establishments for local distribution on wholesale basis. "(dd) 'Establishment' means a sole proprietorship, a partnership, a corporation, an institution, an association, or an organization engaged in the manufacture, importation, exportation, sale, offer for sale, distribution, donation, transfer, use, testing, promotion, advertising, or sponsorship of health products including the facilities and installations needed for its activities. "(ee) 'Food/dietary supplement' means a processed food product intended to supplement the diet that bears or contains one or more of the following dietary ingredients: vitamin, mineral, herb, or other botanical, amino acid, and dietary substance to increase the total daily intake in amounts conforming to the latest Philippine recommended energy and nutrient intakes or internationally agreed minimum daily requirements. It usually is in the form of capsules, tablets, liquids, gels, powders or pills and not represented for use as a conventional food or as the sole item of a meal or diet or replacement of drugs and medicines. "(ff) 'Health products' means food, drugs, cosmetics, devices, biologicals, vaccines, in-vitro diagnostic reagents and household/urban hazardous substances and/or a combination of and/or a derivative thereof. It shall also refer to products that may have an effect on health which require regulations as determined by the FDA. "(gg) 'Household/urban hazardous substance' is: "(1) Any substance or mixture of substances intended for individual or limited purposes and which is toxic, corrosive, an irritant, a strong sensitizer, is flammable or combustible, or generates pressure through decomposition, heat or other means, if such substance or mixture of substances may cause substantial injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable ingestion by children, but shall not include agricultural fertilizer, pesticide, and insecticide, and other economic poisons, radioactive substance, or substances intended for use as fuels, coolants, refrigerants and the like; "(2) Any substance which the FDA finds to be under the categories enumerated in clause (1) of this paragraph; "(3) Any toy or other articles intended for use by children which the FDA may determine to pose an electrical, chemical, physical, or thermal hazard; and "(4) This term shall not apply to food, drugs, cosmetics, devices, or to substances intended for use as fuels when stored in containers and used in the heating, cooking or refrigeration system of a house, but such term shall apply to any article which is not in itself an agricultural pesticide but which is a hazardous substance, as construed in paragraph (1) of this section, by reason of bearing or containing such harmful substances described therein. "(hh) 'In-vitro diagnostic reagents' are reagents and systems intended for use in the diagnosis of disease or other conditions, including a determination of the state of health, in order to cure, mitigate, treat or prevent disease or its sequelae. "(ii) 'Licensing' means the process of approval of an application to operate or establish an establishment prior to engaging in the manufacture, importation, exportation, sale, offer for sale, distribution, transfer, and where applicable the use, testing, promotion, advertisement, and/or sponsorship of health products.
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"(jj) 'Misbranding' means, in addition to definitions in existing laws, misinformation or misleading information on the label or other information materials authorized by the FDA. It shall not refer to copyright, trademark, or other intellectual property-like instruments. "(kk) 'Registration' means the process of approval of an application to register health products prior to engaging in the manufacture, importation, exportation, sale, offer for sale, distribution, transfer, and where applicable, the use, testing, promotion, advertisement, and/or sponsorship of health products. "(ll) 'Trader' means any establishment which is a registered owner of a health product and procures the raw materials and packing components and provides the production monographs, quality control standards and procedures, but subcontract the manufacture of such product to a licensed manufacturer. In addition, a trader may also engage in the distribution and/or marketing of its products. "(mm) 'Retailer' means any establishment which sells or offers to sell any health product directly to the general public." Section 10. Section 11, subsections (a), (b), (d), (g), (j),(k) and (l) of Republic Act No. 3720, as amended, are hereby further amended to read as follows: "SEC. 11. The following acts and the causing thereof are hereby prohibited: "(a) The manufacture, importation, exportation, sale, offering for sale, distribution, transfer, non-consumer use, promotion, advertising, or sponsorship of any health product that is adulterated, unregistered or misbranded. "(b) The adulteration or misbranding of any health product. "x x x "(d) The giving of a guaranty or undertaking referred to in Section twelve (b) hereof which guaranty or undertaking is false, except by a person who relied upon a guaranty or undertaking to the same effect, signed by, and containing the name and address of the person or entity from whom he received in good faith the health products or the giving of a guaranty or undertaking referred to in Section twelve (b) which guaranty or undertaking is false. "x x x "(g) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to health products if such act is done while such article is held for sale (whether or not the first sale) and results in such article being adulterated or misbranded Provided, That a retailer may sell in smaller quantities, subject to guidelines issued by the FDA. "x x x "(j) The manufacture, importation, exportation, sale, offering for sale, distribution, transfer, non-consumer use, promotion, advertisement, or sponsorship of any health product which, although requiring registration, is not registered. with the FDA pursuant to this Act. "(k) The manufacture, importation, exportation, sale, offering for sale, distribution, transfer, or retail of any drug, device or in-vitro diagnostic reagent; the manufacture, importation, exportation, transfer or distribution of any food, cosmetic or household/urban hazardous substance; or the operation of a radiation or pest control establishment by any natural or juridical person without the license to operate from the FDA required under this Act. "(l) The sale, offering for sale, importation, exportation, distribution or transfer of any health product beyond its expiration or expiry date, if applicable. "x x x "The prohibited acts mentioned herein shall cover all applicable health products." Section 11. Section 12, subsection (a) of Republic Act No, 3720, as amended, is hereby further amended to read as follows: "SEC. 12. (a) Any person who violates any of the provisions of Section eleven hereof shall, upon conviction, suffer the penalty of imprisonment ranging from one (1) year but not more than ten (10) years or a fine of not less than Fifty thousand pesos (P50,000.00) but not more than Five hundred thousand pesos (P500,000.00), or both, at the discretion of the court: Provided, That if the offender is a manufacturer, importer or distributor of any health product, the penalty of at least five (5) years imprisonment but not more than ten (10) years and a fine of at least Five hundred thousand pesos (P500,000.00) but not more than Five million pesos (P5,000,000.00) shall be
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imposed Provided, further, That an additional fine of one percent (1%) of the economic value/cost of the violative product or violation, or One thousand pesos (P1,000.00), whichever is higher, shall be imposed for each day of continuing violation: Provided, finally, That health products found in violation of the provisions of this Act and other relevant laws, rules and regulations may be seized and held in custody pending proceedings, without hearing or court order, when the director-general has reasonable cause to believe from facts found by him/her or an authorized officer or employee of the FDA that such health products may cause injury or prejudice to the consuming public. "x x x "Should the offense be committed by a juridical person, the Chairman of the Board of Directors, the president, general manager, or the partners and/or the persons directly responsible therefore shall he penalized. "Should the offense be committed by a foreign national, he/she shall, in addition to the penalties prescribed, be deported without further proceedings after service of sentence. "x x x." Section 12. Section 26, subsections (c) and (d) of Republic Act No. 3720, as amended, are hereby further amended and subsection (g) is hereby added thereto to read as follows: "x x x "(c) Hearings authorized or required by this Act shall be conducted by the FDA. "(d) Upon preliminary findings of the conduct of prohibited act/s, the director-general shall issue the proper notices or orders to the person or persons concerned and such person or persons shall be given an opportunity to be heard before the FDA. "x x x "(g) Both criminal and administrative actions may be instituted separately and independent of one another." Section 13. Section 29-A of Republic Act No. 3720, as amended, is hereby further amended, and new subsections are added to read as follows: "SEC. 29-A. Administrative Sanctions. - Where there is finding of prohibited actions and determination of the persons liable thereto, after notice and hearing, the director-general is empowered to impose one or more of the following administrative penalties: "(1) Cancellation of any authorization which may have been granted by the FDA, or suspension of the validity thereof for such period of time as the director-general may deem reasonable which shall not exceed one (1) year: "(2) A fine of not less than Fifty thousand pesos (P50,000.00) but not more than Five hundred thousand pesos (P500,000.00). An additional fine of not more than One thousand pesos (P1,000.00) shall be imposed for each day of continuing violation; and "(3) Destruction and/or appropriate disposition of the subject health product, and/or closure of the establishment for any violation of this Act, as determined by the director-general." Section 14. A new Section 30 and a new headnote "Additional Powers and Functions of the Director-General" are hereby added to Republic Act No. 3720, which shall read as follows: "SEC. 30. The Director-General shall also exercise the following powers: "(1) To hold in direct or indirect contempt any person who disregards orders or writs he or she issues and impose the appropriate penalties following the same procedures and penalties provided in the Rules of Court; "(2) To administer oaths and affirmations and issue subpoena duces tecum and subpoena ad testificandumrequiring the production of such books, contracts, correspondence, records, statement of accounts and other documents and/or the attendance and testimony of parties and witnesses as may be material to the investigation conducted by the FDA; "(3) To obtain information from any officer or office of the national or local governments, government agencies and its instrumentalities;
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"(4) To issue orders of seizure, to seize and hold in custody any article or articles of food, device, cosmetics, household hazardous substances and health products that is adulterated, counterfeited, misbranded or unregistered, or drug, in-vitro diagnostic reagent, biologicals, and vaccine that is adulterated or misbranded, when introduced into domestic commerce pending the authorized hearing under Republic Act No. 3720, as amended, Executive Order No. 175 (1987), and Republic Act No. 7394, otherwise known as the Consumers Act of the Philippines; "(5) To call on the assistance of any department, office or agency and deputize members of the Philippine National Police or any law enforcement agency for the effective implementation of this Act; and "(6) To exercise such powers and functions as may be necessary for the effective implementation of this Act." Section 15. Two new sections shall be added, which shall be the new Sections 31 and 32 of Republic Act No. 3720, as amended, which shall read as follows: "SEC. 31. The orders, rulings or decisions of the FDA shall become final and executory fifteen (15) days after the receipt of a copy thereof by the party adversely affected unless within that period, an administrative appeal has been perfected. One motion for reconsideration may be filled, which shall suspend the running of the said period." "SEC. 32. The orders, rulings or decisions of the FDA shall be appealable to the Secretary of Health. An appeal shall be deemed perfected upon filing of the notice of appeal and posting of the corresponding appeal bond. "An appeal shall not stay the decision appealed from unless an order from the Secretary of Health is issued to stay the execution thereof." Section 16. Section 30 of Republic Act No. 3720, as amended, shall be renumbered as Section 33, and the subsequent sections shall also be renumbered accordingly. Section 17. Section 31, Chapter XIII of Republic Act No. 3720, as amended, is hereby further amended to read as follows: "SEC. 34. Fees and Other Income. "(a) Upon the sole approval of the Secretary, the authorization and other fees shall annually be determined and reviewed by the FDA and any proposed increase shall be published in two (2) leading newspapers of general circulation. "(b) There shall be determined and constituted additional fees such as sale of publications and services, assessment fees, fines, penalties, and other fees and charges outside the usual licensing and registration fees, to be known as 'other related regulatory fees'. "(c) The Director-General of the FDA, upon approval of the Secretary, shall be authorized to promulgate rules and regulations governing the collection of the 'other related regulatory fees'. Upon approval of the Secretary, these fees shall likewise be reviewed periodically and any proposed increase shall be published in two (2) leading newspapers of general circulation." Section 18. All income that the FDA is allowed to retain under Section 31 of the Universally Accessible Cheaper and Quality Medicines Act of 2008 shall, any provision of law to the contrary notwithstanding, be deposited in an authorized government depository bank as a special regulatory fund. Any interest earned by such fund shall form part of the retained income. Such fund shall be used primarily for the acquisition of office and laboratory space, human resource development and expansion, purchase of laboratory equipment and motor vehicles, the upgrading of its current facilities and equipment and maintenance, other operating expenses ofthe central office laboratory divisions and satellite laboratories in Davao, Cebu and other testing laboratories, in case the above laboratories will be increased, and other activities or services of the agency in the performance of its mandate. The fund shall be allowed to accept grants, donations and all other endowments from local and external sources in accordance with pertinent laws, rules and regulations. The retention, use and application of this fund shall not be delayed, amended, altered or modified, or affected in any way by an order or directive from any executive office, but will be subject only to the general accounting rules and guidelines by the Commission on Audit (COA). The primary purpose of the fund as herein stated shall prevail over any other purpose that may be pursued by the FDA on its own initiative or through an order or directive by any higher office. The FDA shall submit to the Secretary of Health, the Secretary of Budget and Management and the Congressional Oversight Committee, created under Section 23 of this Act, a report on how the funds were utilized, including its accomplishments. There shall also be established a legal fund out of the interest earned from the retained income for use in case of legal actions against the officials and employees of the FDA in the course of the exercise of their official functions and duties.
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Section 19. The FDA shall establish a Regulatory Enforcement Unit (REU) for a period not exceeding five (5) years from the effectivity of this Act. It shall be composed of at least five (5) qualified personnel in every region who shall be directly under the control and supervision of the Deputy Director-General for Field Regulatory Operations and shall be administratively supported by the field offices. They shall: (a) Bear arms, wear official uniforms and insignias and shall be classified as law enforcement agents; (b) Serve and execute rulings, orders, and decisions of the Director-General of the FDA; and (c) Execute and serve search warrants and arrest warrants issued by the courts in connection with violations under this Act and related laws concerning the regulation of health products. All law enforcement agents shall undergo the appropriate training to equip them with the necessary skills needed for this purpose. Their authority and functions shall be strictly limited to the implementation of the FDA's regulatory functions. All regional regulatory enforcement units shall be headed by a lawyer who is at least thirty (30) years old but not older than fifty (50), an Integrated Bar of the Philippines (IBP) member of good standing, and shall have a rank of a Division Director; and an assistant who must be at the very least a law graduate who shall have a rank of an Assistant Division Director. Section 20. A new chapter XIV and three new sections, Sections 35, 36, and 37 shall be introduced, which shall read as follows: "CHAPTER XIV "TESTING LABORATORIES AND FIELD OFFICES "SEC. 35. The FDA is hereby mandated to improve, upgrade and increase the capability of the agency, to test, calibrate, assay and examine samples of health products. For the purpose of achieving the above mandate, there shall be established at least one (1) testing laboratory each in Luzon, Visayas and Mindanao, which shall have the necessary and appropriate state-of-the-art laboratory equipment and personnel complement. The main testing laboratories at the central office shall be maintained and shall serve as a support unit to the centers for product research and evaluation and standards development and shall serve as testing centers that would include assay and the conduct, supervision, oversight and/or audit of bioequivalence and bioavailability test/researches, among others. The existing laboratories in Cebu and Davao will be upgraded and transformed as quality assurance laboratories, while another one will be established in Subic, Zambales. "The testing laboratories may be increased by the director-general, upon approval of the Secretary. Moreover, the director-general, upon approval of the Secretary, may call upon other government and private testing laboratories to conduct testing, calibration, assay and examination of samples of health products: Provided, That the private testing laboratories are accredited by the Philippine Accreditation Office (PAO) of the Department of Trade and industry (DTI) and the DOH." "SEC. 36. The FDA shall establish field offices in all regions of the country to effectively implement its regulatory functions. The current regional food and drug regulatory officers and regional health physicists in every regional office of the DOH shall now be put under the FDA's sole control and supervision. The regional field office shall also assume primary jurisdiction in the collection of samples of food, drugs, devices and cosmetics being imported or offered for import at a port of entry other than Manila in his/her assigned region and where it appears that said items or products satisfy any of the conditions as provided for in Section 33(a) of Republic Act No. 3720, as amended, without prejudice to the exercise of the powers of the director-general provided under Sections 13 and 14 of this Act in the exercise of the agency's regulatory functions. The field offices shall be comprised of the following: (a) licensing, inspection and compliance division, which shall have charge of the inspection of food, drugs and cosmetic establishments engaged in their manufacture, importation, distribution, and sale; (b) satellite laboratory division; and (c) administrative division." "SEC. 37. The FDA, with the approval of the Secretary, shall create organizational units which are deemed necessary to address emerging concerns and to be abreast with internationally acceptable standards. There shall be created additional plantilla positions to augment the human resource complement of the FDA, subject to existing rules and regulations." Section 21. Appropriations. - The appropriations for the BFAD and the BHDT included in the budget of the DOH under the current General Appropriations Act shall be used to carry out the implementation of this Act. The appropriation may be augmented by the income which the agency is authorized to use under this Act. Thereafter, such sums as may be necessary for its continued implementation shall be included in the annual General Appropriations Act. Section 22. Implementing Rules and Regulatiorts. - The DOH shall promulgate, in consultation with the FDA, the implementing rules and regulations of this Act within one hundred twenty (120) days after the passage of this Act.
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Section 23. Congressional Oversight Committee. - A Congressional Oversight Committee (COC) is hereby created composed of the Chairpersons of the Committees on Health and Appropriations of the House of Representatives and two (2) Members to be appointed by the Speaker, the Chairpersons of the Committees on Health and Finance of the Senate and two (2) Members to he appointed by the President of the Senate, to oversee the implementation of this Act for a period of five (5) years and to review the accomplishments and the utilization of income of the FDA. The secretariat of the COC shall be drawn from the existing personnel of the committees comprising the COC. Section 24. Transitory Provisions. - The BFAD Director and Deputy Director shall serve as FDA DirectorGeneral and Deputy Director-General for Field Regulatory Operations, respectively. The current officials and employees of the BFAD shall be transferred as far as practicable to the appropriate unit in the FDA as determined by the Director-General. The current officials and employees of the BHDT shall be transferred to the Center for Device Regulation, Radiation Health, and Research. The current regional food and drug regulatory officers and regional health physicists under the Centers for Health Development of the DOH shall be transferred as far as practicable to the appropriate unit in the FDA as determined by the Director-General. There shall be no demotion in ranks and positions and no diminution in salaries. benefits, allowances and emoluments of all BFAD, BHDT and indicated Center for Health and Development (CHD) personnel transferred to the FDA. All positions, powers, functions and duties together with the facilities, equipment, supplies, records, files, appropriations, and funds for these bureaus and the indicated CHD personnel shall be transferred to the FDA. Section 25. Coverage. - This Act shall govern all health products: Provided, That nothing in this Act shall be deemed to modify the sole and exclusive jurisdiction of other specialized agencies and special laws only insofar as the acts covered by these specialized agencies and laws, including, but not limited to, those covered by Republic Act No. 9211, Executive Order No. 245, Executive Order No. 18, and Presidential Decree No. 1468. Section 26. Separability Clause. - If any part, section or provision of this Act shall be declared invalid or unconstitutional, other provisions or parts thereof which are not affected thereby shall remain in full force and effect. Section 27. Repealing Clause. - Laws or part of laws, executive orders, circulars, regulations and memoranda inconsistent with this Act are hereby repealed or amended accordingly. Section 28. Effectivity Clause. - This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in two (2) newspapers of general circulation. Approved,
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Republic of the Philippines Congress of the Philippines Metro Manila Fourteenth Congress First Regular Session
Begun and held in Metro Manila, on Monday, the twenty-third day of July, two thousand seven. Republic Act No. 9502
June 6, 2008
AN ACT PROVIDING FOR CHEAPER AND QUALITY MEDICINES, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8293 OR THE INTELLECTUAL PROPERTY CODE, REPUBLIC ACT NO. 6675 OR THE GENERICS ACT OF 1988, AND REPUBLIC ACT NO. 5921 OR THE PHARMACY LAW, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: CHAPTER I GENERAL PROVISIONS Section 1. Short Title. - This Act shall be known as the "Universally Accessible Cheaper and Quality Medicines Act of 2008". SEC. 2. Declaration of Policy. - It is the policy of the State to protect public health and, when the public interest or circumstances of extreme urgency so require, it shall adopt appropriate measures to promote and ensure access to affordable quality drugs and medicines for all. Pursuant to the attainment of this general policy, an effective competition policy in the supply and demand of quality affordable drugs and medicines is recognized by the State as a primary instrument. In the event that full competition is not effective, the State recognizes as a reserve instrument the regulation of prices of drugs and medicines, with clear accountability by the implementing authority as mandated in this Act, as one of the means to also promote and ensure access to quality affordable medicines. SEC. 3. Construction in Favor of Protection of Public Health. - All doubts in the implementation and interpretation of the provisions of this Act, including its implementing rules and regulations, shall be resolved in favor of protecting public health. SEC. 4. Definition of Terms. - For purposes of this Act, the following terms are to mean as follows: (a) "Compulsory License" is a license issued by the Director General of the Intellectual Property Office to exploit a patented invention without the permission of the patent holder, either by manufacture or through parallel importation; (b) "Drug outlet" refers to drugstores, pharmacies, and any other business establishments which sell drugs and medicines; (c) "Drugs and medicines" refers to any chemical compound or biological substance, other than food, intended for use in the treatment, prevention or diagnosis of disease in humans or animals, including but not limited to: (1) any article recognized in the official United States Pharmacopoeia-National Formulary (USP-NF), official Homeopathic Pharmacopoeia of the United States, Philippine Pharmacopoeia, Philippine National Drug Formulary, British Pharmacopoeia, European Pharmacopoeia, Japanese Pharmacopoeia, Indian Pharmacopoeia, any national compendium or any supplement to any of them; (2) any article intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals; (3) any article other than food intended to affect the structure or any function of the human body or animals;
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(4) any article intended for use as a component of any articles specified in clauses (1), (2), and (3) not including devices or their components, parts, or accessories; and (5) herbal and/or traditional drugs which are articles of plant or animal origin used in folk medicine which are: (i) recognized in the Philippine National Drug Formulary; (ii) intended for use in the treatment or cure or mitigation of disease symptoms, injury or body defects in humans; (iii) other than food, intended to affect the structure or any function of the human body; (iv) in finished or ready-to-use dosage form; and (v) intended for use as a component of any of the articles specified in clauses (i), (ii), (iii), and (iv); (d) "Essential drugs list or national drug formulary" refers to a list of drugs prepared and periodically updated by the Department of Health on the basis of health conditions obtaining in the Philippines as well as on internationally accepted criteria; (e) "Importer" refers to any establishment that imports raw materials, active ingredients and finished products for its own use or for distribution to other drug establishments or outlets; (f) "Manufacture" includes any process or part of a process for making, altering, finishing, packing, labeling, breaking or otherwise treating or adapting any drug with a view to its sale and distribution, but does not include the compounding or dispensing of any drug in the ordinary course of retail business; (g) "Manufacturer" refers to any establishment engaged in the operations involved in the production of a drug with the end view of storage, distribution, or sale of the product; (h) "Multisource pharmaceutical products" refers to pharmaceutically equivalent or pharmaceutically alternative products that may or may not be therapeutically equivalent. Multisource pharmaceutical products that are therapeutically equivalent are interchangeable; (i) "Retailer" refers to a licensed establishment carrying on the retail business of sale of drugs and medicines to customers; (j) "Trader" refers to any licensed establishment which is a registered owner of a drug product that procures the materials and packaging components, and provides the production monographs, quality control standards and procedures, but subcontracts the manufacture of such products to a licensed manufacturer; (k) "TRIPS Agreement" or Agreement on Trade-Related Aspects of Intellectual Property Rights refers to the international agreement administered by the WTO that sets down minimum standards for many forms of intellectual property regulation; and (l) "Wholesaler" refers to a licensed establishment or drug outlet who acts as merchant, broker or agent, who sells or distributes for resale or wholesale drugs and medicines. CHAPTER 2 AMENDMENTS TO REPUBLIC ACT NO. 8293, OTHERWISE KNOWN AS THE INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES SEC. 5. Section 22 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 22. Non-Patentable Inventions. - The following shall be excluded from patent protection: "22.1. Discoveries, scientific theories and mathematical methods, and in the case of drugs and medicines, the mere discovery of a new form or new property of a known substance which does not result in the enhancement of the known efficacy of that substance, or the mere discovery of any new property or new use for a known substance, or the mere use of a known process unless such known process results in a new product that employs at least one new reactant. "For the purpose of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations, and other derivatives of a known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;
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"22.2. x x x; "22.3. x x x; "22.4. x x x; "22.5. x x x; and "22.6. x x x." SEC. 6. Section 26 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 26. Inventive Step. - 26.1. An invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention. (n) "26.2. In the case of drugs and medicines, there is no inventive step if the invention results from the mere discovery of a new form or new property of a known substance which does not result in the enhancement of the known efficacy of that substance, or the mere discovery of any new property or new use for a known substance, or the mere use of a known process unless such known process results in a new product that employs at least one new reactant." SEC. 7. Section 72 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 72. Limitations of Patent Rights. - The owner of a patent has no right to prevent third parties from performing, without his authorization, the acts referred to in Section 71 hereof in the following circumstances: "72.1. Using a patented product which has been put on the market in the Philippines by the owner of the product, or with his express consent, insofar as such use is performed after that product has been so put on the said market: Provided, That, with regard to drugs and medicines, the limitation on patent rights shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party; "72.2. Where the act is done privately and on a non-commercial scale or for a non-commercial purpose: Provided, That it does not significantly prejudice the economic interests of the owner of the patent; "72.3. Where the act consists of making or using exclusively for experimental use of the invention for scientific purposes or educational purposes and such other activities directly related to such scientific or educational experimental use; "72.4. In the case of drugs and medicines, where the act includes testing, using, making or selling the invention including any data related thereto, solely for purposes reasonably related to the development and submission of information and issuance of approvals by government regulatory agencies required under any law of the Philippines or of another country that regulates the manufacture, construction, use or sale of any product: Provided, That, in order to protect the data submitted by the original patent holder from unfair commercial use provided in Article 39.3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the Intellectual Property Office, in consultation with the appropriate government agencies, shall issue the appropriate rules and regulations necessary therein not later than one hundred twenty (120) days after the enactment of this law; "72.5. Where the act consists of the preparation for individual cases, in a pharmacy or by a medical professional, of a medicine in accordance with a medical shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party; "72.2. Where the act is done privately and on a non-commercial scale or for a non-commercial purpose: Provided, That it does not significantly prejudice the economic interests of the owner of the patent; "72.3. Where the act consists of making or using exclusively for experimental use of the invention for scientific purposes or educational purposes and such other activities directly related to such scientific or educational experimental use;
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"72.4. In the case of drugs and medicines, where the act includes testing, using, making or selling the invention including any data related thereto, solely for purposes reasonably related to the development and submission of information and issuance of approvals by government regulatory agencies required under any law of the Philippines or of another country that regulates the manufacture, construction, use or sale of any product: Provided, That, in order to protect the data submitted by the original patent holder from unfair commercial use provided in Article 39.3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the Intellectual Property Office, in consultation with the appropriate government agencies, shall issue the appropriate rules and regulations necessary therein not later than one hundred twenty (120) days after the enactment of this law; "72.5. Where the act consists of the preparation for individual cases, in a pharmacy or by a medical professional, of a medicine in accordance with a medical "74.3. All cases arising from the implementation of this provision shall be cognizable by courts with appropriate jurisdiction provided by law. "No court, except the Supreme Court of the Philippines, shall issue any temporary restraining order or preliminary injunction or such other provisional remedies that will prevent its immediate execution. "74.4. The Intellectual Property Office (IPO), in consultation with the appropriate government agencies, shall issue the appropriate implementing rules and regulations for the use or exploitation of patented inventions as contemplated in this section within one hundred twenty (120) days after the effectivity of this law." SEC. 9. Section 76.1 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 76. Civil Action for Infringement. - 76.1. The making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of the patentee constitutes patent infringement: Provided, That, this shall not apply to instances covered by Sections 72.1 and 72.4 (Limitations of Patent Rights); Section 74 (Use of Invention by Government); Section 93.6 (Compulsory Licensing); and Section 93-A (Procedures on Issuance of a Special Compulsory License under the TRIPS Agreement) of this Code. "76.2. x x x; "76.3. x x x; "76.4. x x x; "76.5. x x x; and "76.6. x x x." SEC. 10. Section 93 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 93. Grounds for Compulsory Licensing. - The Director General of the Intellectual Property Office may grant a license to exploit a patented invention, even without the agreement of the patent owner, in favor of any person who has shown his capability to exploit the invention, under any of the following circumstances: "93.1. National emergency or other circumstances of extreme urgency; "93.2. Where the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy as determined by the appropriate agency of the Government, so requires; or "93.3. Where a judicial or administrative body has determined that the manner of exploitation by the owner of the patent or his licensee is anti-competitive; or "93.4. In case of public non-commercial use of the patent by the patentee, without satisfactory reason; "93.5. If the patented invention is not being worked in the Philippines on a commercial scale, although capable of being worked, without satisfactory reason: Provided, That the importation of the patented article shall constitute working or using the patent; (Secs. 34, 34-A, 34-B, R.A. No. 165a) and "93.6. Where the demand for patented drugs and medicines is not being met to an adequate extent and on reasonable terms, as determined by the Secretary of the Department of Health."
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SEC. 11. A new Section 93-A is hereby inserted after Section 93 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, to read as follows: "SEC. 93-A. Procedures on Issuance of a Special Compulsory License under the TRIPS Agreement. - 93-A.1. The Director General of the Intellectual Property Office, upon the written recommendation of the Secretary of the Department of Health, shall, upon filing of a petition, grant a special compulsory license for the importation of patented drugs and medicines. The special compulsory license for the importation contemplated under this provision shall be an additional special alternative procedure to ensure access to quality affordable medicines and shall be primarily for domestic consumption: Provided, That adequate remuneration shall be paid to the patent owner either by the exporting or importing country. The compulsory license shall also contain a provision directing the grantee the license to exercise reasonable measures to prevent the re-exportation of the products imported under this provision. "The grant of a special compulsory license under this provision shall be an exception to Sections 100.4 and 100.6 of Republic Act No. 8293 and shall be immediately executory. "No court, except the Supreme Court of the Philippines, shall issue any temporary restraining order or preliminary injunction or such other provisional remedies that will prevent the grant of the special compulsory license. "93-A.2. A compulsory license shall also be available for the manufacture and export of drugs and medicines to any country having insufficient or no manufacturing capacity in the pharmaceutical sector to address public health problems: Provided, That, a compulsory license has been granted by such country or such country has, by notification or otherwise, allowed importation into its jurisdiction of the patented drugs and medicines from the Philippines in compliance with the TRIPS Agreement. "93-A.3. The right to grant a special compulsory license under this section shall not limit or prejudice the rights, obligations and flexibilities provided under the TRIPS Agreement and under Philippine laws, particularly Section 72.1 and Section 74 of the Intellectual Property Code, as amended under this Act. It is also without prejudice to the extent to which drugs and medicines produced under a compulsory license can be exported as allowed in the TRIPS Agreement and applicable laws." SEC. 12. Section 94 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 94. Period for Filing a Petition for a Compulsory License. - 94.1. A compulsory license may not be applied for on the ground stated in Subsection 93.5 before the expiration of a period of four (4) years from the date of filing of the application or three (3) years from the date of the patent whichever period expires last. "94.2. A compulsory license which is applied for on any of the grounds stated in Subsections 93.2, 93.3, 93.4, and 93.6 and Section 97 may be applied for at any time after the grant of the patent. (Sec. 34(1), R. A. No. 165)" SEC. 13. Section 95 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 95. Requirement to Obtain a License on Reasonable Commercial Terms. - 95.1. The license will only be granted after the petitioner has made efforts to obtain authorization from the patent owner on reasonable commercial terms and conditions but such efforts have not been successful within a reasonable period of time. "95.2. The requirement under Subsection 95.1 shall not apply in any of the following cases: "(a) Where the petition for compulsory license seeks to remedy a practice determined after judicial or administrative process to be anti-competitive; "(b) In situations of national emergency or other circumstances of extreme urgency; "(c) In cases of public non-commercial use; and "(d) In cases where the demand for the patented drugs and medicines in the Philippines is not being met to an adequate extent and on reasonable terms, as determined by the Secretary of the Department of Health. "95.3. In situations of national emergency or other circumstances of extreme urgency, the right holder shall be notified as soon as reasonably practicable. "95.4. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly. (n)
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"95.5. Where the demand for the patented drugs and medicines in the Philippines is not being met to an adequate extent and on reasonable terms, as determined by the Secretary of the Department of Health, the right holder shall be informed promptly." SEC. 14. Section 147 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 147. Rights Conferred. - 147.1. Except in cases of importation of drugs and medicines allowed under Section 72.1 of this Act and of off-patent drugs and medicines, the owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs or containers for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. "There shall be no infringement of trademarks or tradenames of imported or sold patented drugs and medicines allowed under Section 72.1 of this Act, as well as imported or sold off-patent drugs and medicines: Provided, That, said drugs and medicines bear the registered marks that have not been tampered, unlawfully modified, or infringed upon, under Section 155 of this Code. "147.2. x x x." SEC. 15. Section 159 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "SEC. 159. Limitations to Actions for Infringement. - Notwithstanding any other provision of this Act, the remedies given to the owner of a right infringed under this Act shall be limited as follows: "159.1. x x x; "159.2 x x x; "159.3 x x x; and "159.4 There shall be no infringement of trademarks or tradenames of imported or sold drugs and medicines allowed under Section 72.1 of this Act, as well as imported or sold off-patent drugs and medicines: Provided, That said drugs and medicines bear the registered marks that have not been tampered, unlawfully modified, or infringed upon as defined under Section 155 of this Code." SEC. 16. Implementing Rules and Regulations on Amendments to Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines. - Unless otherwise provided herein, the Intellectual Property Office, in coordination with the Department of Health and the Bureau of Food and Drugs, shall issue and promulgate, within one hundred twenty (120) days after the enactment of this Act, the implementing rules and regulations to effectively implement the provisions of this Act that relate to Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines. CHAPTER 3 DRUGS AND MEDICINES PRICE REGULATION SEC. 17. Drugs and Medicines Price Regulation Authority of the President of the Philippines. - The President of the Philippines, upon recommendation of the Secretary of the Department of Health, shall have the power to impose maximum retail prices over any or all drugs and medicines as enumerated in Section 23. The power to impose maximum retail prices over drugs and medicines shall be exercised within such period of time as the situation may warrant as determined by the President of the Philippines. No court, except the Supreme Court of the Philippines, shall issue any temporary restraining order or preliminary injunction or preliminary mandatory injunction that will prevent the immediate execution of the exercise of this power of the President of the Philippines. SEC. 18. Drugs and Medicines Price Monitoring and Regulation Authority of the Secretary of the Department of Health. - To implement the policies of this Act under this Chapter, the Secretary of the Department of Health is hereby authorized to establish and initiate a price monitoring and regulation system for drugs and medicines within one hundred twenty (120) days after the enactment of this Act. The Secretary of the Department of Health may also create such bodies, consultative councils, from which advice may be sought in the implementation of a drug or medicine price monitoring and regulation policy. Such bodies or consultative councils created by the Secretary of the Department of Health shall coordinate its efforts together with other government agencies.
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SEC. 19. Functions and Responsibilities of the Secretary of the Department of Health. - Pursuant to Section 18 of this Act, the Secretary of the Department of Health shall have the following powers: (A) Power to Recommend the Maximum Retail Price of Drugs and Medicines Subject to Price Regulation - (1) Upon application or motu proprio when the public interest so requires, the Secretary of the Department of Health shall have the power to determine the maximum retail prices of drugs and medicines which shall be recommended to the President of the Philippines for approval. In order that affordable prices of drugs and medicines from the different manufacturers, importers, traders, distributors, wholesalers, or retailers shall be made available to the public, the Secretary of the Department of Health, as he/she may deem fit and after a proper determination, shall have such approved maximum retail prices of drugs and medicines published; (2) In recommending the maximum retail price, the Secretary of the Department of Health shall consider the following factors: (a) Retail prices of drugs and medicines that are subject to regulation in the Philippines and in other countries; (b) The supply available in the market; (c) The cost to the manufacturer, importer, trader, distributor, wholesaler or retailer of the following, but not limited to: (i) The exchange rate of the peso to the foreign currency with which the drug or any of its component, ingredient or raw material was paid for; (ii) Any change in the amortization cost of machinery brought about by any change in the exchange rate of the peso to the foreign currency with which the machinery was bought through credit facilities; (iii) Any change in the cost of labor brought about by a change in minimum wage; or (iv) Any change in the cost of transporting or distributing the medicines to the area of destination; (d) Such other factors or conditions which will aid in arriving at a just and reasonable maximum price; and (3) No retailer shall sell drugs and medicines at a retail price exceeding the maximum retail price approved by the President of the Philippines as provided in Section 17 of this Act: Provided, That, the Secretary of the Department of Health shall immediately undertake a study on the prevailing prices of drugs and medicines subject to price regulation and provide an initial list of drugs and medicines, which maximum retail prices he/she shall recommend to the President of the Philippines. (B) Power to Include Other Drugs and Medicines in the List Subject to Price Regulation - Upon application or motu proprio when the public interest so requires and after proper determination, the Secretary of the Department of Health may order the inclusion of drugs and medicines to the list subject of price regulation under Section 23 hereof. (C) Power to Implement Cost-Containment and Other Measures - (1) The Secretary of the Department of Health shall have the power to implement the fair price of drugs and medicines for purposes of public health insurance and government procurement based on the order of the President of the Philippines imposing maximum retail prices; and (2) The Secretary of the Department of Health shall have the power to implement any other measures that the government may avail of to effectively reduce the cost of drugs and medicines that shall include, but not limited to, competitive bidding, price volume negotiations, and other appropriate mechanisms that influence supply, demand and expenditures on drugs and medicines. (D) Power to Impose Administrative Fines and Penalties - After due notice and hearing, the Secretary of the Department of Health shall have the power to impose administrative fines against any person, manufacturer, importer, trader, distributor, wholesaler, retailer, or any other entity, in such amount as it may deem reasonable, which in no case shall be less than Fifty thousand pesos (Php50,000.00) nor more than Five million pesos (Php5,000,000.00) for violations of the maximum retail price approved by the President of the Philippines pursuant to the provisions of this Chapter. (E) Power to Deputize Government Entities - The Secretary of the Department of Health shall have the power to call upon and deputize any official, agent, employee, agency, or instrumentality of the national and local government for any assistance that it may deem necessary to carry out the purposes of this Chapter. (F) Other Powers Necessary to Implement Provisions of this Chapter - The Secretary of the Department of Health shall exercise such powers and functions as may be necessary to implement and enforce the provisions of this Chapter of this Act, including the power to require the production and submission of records, documents, books of account, bills of lading, input documents, records of purchase and sale, financial statements, and such other
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documents, information and papers as may be necessary to enable the Secretary of the Department of Health to carry out its functions, duties, and responsibilities. Accordingly, within thirty (30) days from the effectivity of this Act and every December 31st of every year thereafter, every manufacturer, importer, trader, distributor, wholesaler, and retailer of a drug and medicine whether included in or excluded from the list of drugs and medicines that are subject to price regulation shall furnish the Secretary of the Department of Health a list, containing on the minimum the corresponding prices and inventory, of all drugs and medicines it manufactures, imports, trades, distributes, wholesales, or retails, data pertaining to the factors enumerated under Section 19(A)(2), and any and all necessary information that the Secretary of the Department of Health may require. SEC. 20. Procedures for Inquiries, Studies, Hearings, Investigations, and Proceedings. - All inquiries, studies, hearings, investigations and proceedings conducted by the Secretary of the Department of Health shall be governed by the rules adopted by him/her, and in the conduct thereof shall not be bound by the technical rules of evidence. SEC. 21. Effectivity of the Decisions or Orders of the Secretary of the Department of Health. - All decisions or orders of the Secretary of the Department of Health pursuant to Section 19 Paragraphs (A) Power to Recommend the Maximum Retail Price of Drugs and Medicines Subject to Price Regulation, (B) Power to Include Other Drugs and Medicines in the List Subject to Price Regulation, (C) Power to Implement Cost-Containment and Other Measures, (D) Power to Impose Administrative Fines and Penalties, (E) Power to Deputize Government Entities, or (F) Other Powers Necessary to Implement Provisions of this Chapter, shall be immediately operative. SEC. 22. Review of the Decisions or Orders of the Secretary of the Department of Health. - A party adversely affected by a decision, order or ruling of the Secretary of the Department of Health may, within thirty (30) days from notice of such decision, order or ruling, or in case of a denial of a motion for reconsideration thereof, within fifteen (15) days after notice of such denial, file an appeal with the Court of Appeals, which shall have jurisdiction to review such decision, order or ruling. The filing of a petition for a writ of certiorari or other special remedies in the Supreme Court shall in no case supersede or stay any decision, order or ruling of the Secretary of the Department of Health, unless the Supreme Court shall so direct, and the petitioner may be required by the Supreme Court to give bond in such form and of such amount as may be deemed proper. SEC. 23. List of Drugs and Medicines that are Subject to Price Regulation. - The list of drugs and medicines that are subject to price regulation shall include, inter alia: (a) All drugs and medicines indicated for treatment of chronic illnesses and life threatening conditions, such as, but not limited to, endocrine disorders, e.g., diabetes mellitus; gastrointestinal disorders, e.g., peptic ulcer; urologic disorders, e.g., benign prostatic hyperplasia (BPH); cardiovascular diseases, e.g., hypertension; pulmonary diseases, e.g., pulmonary tuberculosis (PTB), asthma; auto-immune diseases, e.g., systemic lupus erythematosus (SLE); skin diseases, e.g., psoriasis; neuro-psychiatric disorders; other infectious diseases, e.g., human immunodeficiency virusacquired immune deficiency syndrome (HIV-AIDS); and other conditions such as organ transplants and neoplasm; (b) Drugs and medicines indicated for prevention of diseases, e.g., vaccines, immunoglobulin, anti-sera; (c) Drugs and medicines indicated for prevention of pregnancy, e.g., oral contraceptives; (d) Anesthetic agents; (e) Intravenous fluids; (f) Drugs and medicines that are included in the Philippine National Drug Formulary (PNDF) Essential Drug List; and (g) All other drugs and medicines which, from time to time, the Secretary of the Department of Health determines to be in need of price regulation. SEC. 24. Illegal Acts of Price Manipulation. - Without prejudice to the provisions of existing laws on goods not covered by this Act, it shall be unlawful for any manufacturer, importer, trader, distributor, wholesaler, retailer, or any person engaged in any method of disposition of drugs and medicines to engage in acts of price manipulation such as hoarding, profiteering, or illegal combination or forming cartel, as defined under Section 5 of Republic Act No. 7581, otherwise known as the Price Act, and all other acts committed in restraint of trade. SEC. 25. Penalty for Illegal Acts of Price Manipulation. - Any person or entity who commits any act of illegal price manipulation of any drug and medicine subject to price regulation shall suffer the penalty of imprisonment for a period of not less than five (5) years nor more than fifteen (15) years or shall be imposed a fine of not less than One hundred thousand pesos (Php100,000.00) nor more than Ten million pesos (Php10,000,000.00), at the discretion of the court. The court may also order the suspension or revocation of its license to operate (LTO), professional or business license.
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Whenever any act of illegal price manipulation of any drug and medicine subject to price regulation is committed by a juridical person, its officials or employees, or in case of a foreign corporation or association, its agent or representative in the Philippines who are responsible for the violation, shall be held liable therefor. SEC. 26. Display of Maximum Retail Price Fixed and Approved by Order of the President of the Philippines for Drugs and Medicines Subject to Price Regulation. - (a) Within a reasonable period as may be determined by the Secretary of the Department of Health, and: Provided, That it conforms to existing drug product labeling requirements, every manufacturer, importer, distributor, wholesaler, trader, or retailer of a drug and medicine intended for sale shall display the retail price which shall not exceed the maximum retail price approved by order of the President of the Philippines. The maximum retail price shall be printed on the label of the immediate container of the drug and medicine and the minimum pack thereof offered for retail sale with the words "RETAIL PRICE NOT TO EXCEED" preceding it, and "UNDER DRUG PRICE REGULATION" on a red strip. (b) Within a period as may be determined by the Secretary of the Department of Health from time to time, every manufacturer, importer, or trader shall issue a price list to wholesalers, distributors, retailers and to the Secretary of the Department of Health, indicating the retail price, the maximum retail price, and such other information as may be required by the Secretary of the Department of Health. SEC. 27. Reports from Local Government Units (LGUs) and the Department of Trade and Industry (DTI). - All local government units and the Department of Trade and Industry shall help ensure the implementation of pricing policies provided under this Chapter by submitting quarterly price monitoring reports to the Secretary of the Department of Health of drugs and medicines identified by the latter, and any and all necessary information that the Secretary of the Department of Health may require. SEC. 28. Role of the Department of Health (DOH) and the Department of Trade and Industry (DTI). - The Department of Health and the Department of Trade and Industry shall conduct independent periodic surveys and studies of the selling prices of all drugs and medicines referred to in Section 23 of this Act all over the country as well as their share or effect on the family income of the different economic groups in the country for purposes of serving as data base for government efforts to promote access to more affordable medicines, as well as evaluating the effectivity of the measures undertaken to promote access to more affordable medicines. The DTI shall always officially provide the Secretary of the Department of Health copies of these independent reports. SEC. 29. Rules and Regulations. - The Secretary of the Department of Health, in consultation with the Department of Trade and Industry, the Congressional Oversight Committee and other appropriate government agencies, shall, within one hundred twenty (120) days from the effectivity of this Act, promulgate the rules and regulations necessary to effectively implement the provisions of this Chapter. SEC. 30. Reportorial and Public Notice Requirements. - (a) The Secretary of the Department of Health shall submit a bi-annual Monitoring Report of its performance on the implementation of this Act to the Office of the President. This report submitted to the Office of the President shall be published in a newspaper of general circulation within thirty (30) days upon submission. (b) It shall also submit annually a report of its performance on the implementation of this Act to both Houses of Congress, within fifteen (15) days from the opening of the regular session. It shall also regularly report and comply immediately to any order of the Congressional Oversight Committee. (c) The order of the President of the Philippines imposing maximum retail prices on drugs and medicines, including the conditions implementing it, shall be published within fifteen (15) days from issuance in at least two (2) newspapers of general circulation. All wholesalers, manufacturers, distributors, importers, or traders shall have a copy of the order of the President of the Philippines and provide the same to their clients and customers for every transaction. (d) All drug outlets are required to post in a conspicuous area within its premises a clear copy of the order of the President of the Philippines which shall be easily accessible to the consuming public and updated regularly as the situation may warrant. CHAPTER 4 STRENGTHENING OF THE BUREAU OF FOOD AND DRUGS SEC. 31. Strengthening of the Bureau of Food and Drugs (BFAD). - (a) For a more effective and expeditious implementation of this Act, the Director or head of the Bureau of Food and Drugs shall be authorized to retain, without need of a separate approval from any government agency, and subject only to existing accounting and auditing rules and regulations, all the fees, fines, royalties and other charges, collected by the Bureau of Food and Drugs under this Act and other laws that it is mandated to administer based on the immediately prior year of operations, for use in its operations, like upgrading of its facilities, equipment outlay, human resource development and expansion, and the acquisition of the appropriate office space, among others, to improve the delivery of its services to the public. This amount, which shall be in addition to the annual budget of the Bureau of Food and Drugs, shall be deposited and maintained in a separate account or fund, which may be used or disbursed directly by the Director or head.
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(b) After five (5) years from the coming into force of this Act, the Director or head of the Bureau of Food and Drugs shall, subject to the approval of the Secretary of the Department of Health, determine if the fees and charges, mentioned in Subsection (a) hereof, are sufficient to meet its budgetary requirements. If so, it shall retain all the fees and charges it shall collect under the same conditions indicated in said Subsection (a) but shall forthwith, cease to receive any funds from the annual budget of the National Government; if not, the provisions of Subsection (a) shall continue to apply until such time when the Director or head of the Bureau of Food and Drugs, subject to the approval of the Secretary of the Department of Health, certifies that the abovestated fees and charges the Bureau of Food and Drugs shall collect are enough to fund its operations. (c) The Bureau of Food and Drugs shall submit a yearly performance report to the Quality Affordable Medicines Oversight Committee, as provided in Section 45 of this Act. The report shall itemize the use of such retained funds in the past year up to the present and the budgeted use of the same in the succeeding periods. SEC. 32. Quality Assurance of Drugs. - The Bureau of Food and Drugs shall take the necessary steps to ensure that all drugs authorized for marketing in the country shall conform to international standards for the content, purity and quality of pharmaceutical products as established in the International Pharmacopoeia: Provided, That imported products in finished dosage forms, should be certified under the World Health Organization (WHO) certification scheme on the quality of pharmaceutical products moving in international commerce: Provided, further, That the registration for multisource pharmaceutical products should conform to the WHO guidelines on registration requirements to establish interchangeability. CHAPTER 5 NON-DISCRIMINATORY CLAUSE SEC. 33. Non-Discriminatory Clause. - It shall be unlawful for any retail drug outlet to refuse to carry either by sale or by consignment, or offer for sale drugs and medicines brought into the country, as allowed under Section 7 of this Act which amends Section 72.1 of the Intellectual Property Code of the Philippines or Republic Act No. 8293, by the government or authorized third party which have been previously approved for distribution or sale by the Bureau of Food and Drugs. For this purpose, the said products shall be displayed with equal prominence as all other products sold in the establishment. SEC. 34. Refusal to Sell Drugs and Medicines. - No manufacturer, importer, trader, distributor, wholesaler shall withhold from sale or refuse to sell to a wholesaler or retailer any drug or medicine without good and sufficient reasons. SEC. 35. Penalties. - Any person or entity who shall refuse to carry or sell drugs and medicines pursuant to the provisions of this Chapter shall be punished with a fine of not less than One hundred thousand pesos (Php100,000.00) but not more than Five hundred thousand pesos (Php500,000.00), at the discretion of the court. For the succeeding offense, the penalties shall not be less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00), at the discretion of the court, and suspension or revocation of its license to operate (LTO), business or professional license, as the case may be. SEC. 36. Implementing Rules and Regulations on the Non-Discriminatory Clause. - Within one hundred twenty (120) days from the effectivity of this Act, the Department of Health, in consultation with the Department of Trade and Industry, shall promulgate the rules and regulations necessary to effectively implement the provisions of this Chapter. CHAPTER 6 AMENDMENTS TO REPUBLIC ACT NO. 6675, OTHERWISE KNOWN AS THE GENERICS ACT OF 1988 SEC. 37. Section 5 of Republic Act No. 6675, otherwise known as the Generics Act of 1988, is hereby amended to read as follows: "SEC. 5. Posting and Publication. - The Department of Health shall publish annually in acceptable means of public dissemination in at least two (2) newspapers of general circulation in the Philippines the generic names, and the corresponding brand names under which they are marketed, of all drugs and medicines available in the Philippines." SEC. 38. Section 6 of Republic Act No. 6675, otherwise known as the Generics Act of 1988, is hereby amended to read as follows: "SEC. 6. Who Shall Use Generic Terminology. - (a) All government health agencies and their personnel as well as other government agencies shall use generic terminology or generic names in all transactions related to purchasing, prescribing, dispensing and administering of drugs and medicines. "(b) All medical, dental and veterinary practitioners, including private practitioners, shall write prescriptions using the generic name. The brand name may be included if so desired.
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"(c) Any organization or company involved in the manufacture, importation, repacking, marketing and/or distribution of drugs and medicines shall indicate prominently the generic name of the product. In the case of brand name products, the generic name shall appear prominently and immediately above the brand name in all product labels as well as in advertising and other promotional materials. "(d) Drug outlets, including drugstores, hospital and non-hospital pharmacies and nontraditional outlets such as supermarkets and stores, shall inform any buyer about any and all other drug products having the same generic name, together with their corresponding prices so that the buyer may adequately exercise his option. Within one (1) year after the approval of this Act, the drug outlets referred to herein shall post in conspicuous places in their establishments a list of drug products with the same generic name and their corresponding prices. "(e) There shall appear prominently on the label of a generic drug the following statement: this product has the same therapeutic efficacy as any other generic product of the same name. Signed: BFAD." SEC. 39. Section 8 of Republic Act No. 6675, otherwise known as the Generics Act of 1988, is hereby amended to read as follows: "SEC. 8. Required Production. - Subject to the rules and regulations promulgated by the Secretary of Health, every drug manufacturing company operating in the Philippines shall be required to produce, distribute and make widely available to the general public an unbranded generic counterpart of their branded product." SEC. 40. Section 11 of Republic Act No. 6675, otherwise known as the Generics Act of 1988, is hereby amended to read as follows: "SEC. 11. Education Drive. - The Department of Health jointly with the Philippine Information Agency and the Department of the Interior and Local Government shall conduct a continuous information campaign for the public and a continuing education and training for the medical and allied medical professions on drugs with generic names as an alternative of equal efficacy to the more expensive brand name drugs. Such educational campaign shall include information on the illnesses or symptoms which each generically named drug is supposed to cure or alleviate, as well as in contraindications. The Department of Health with the assistance of the Department of the Interior and Local Government and the Philippine Information Agency shall monitor the progress of the education drive, and shall submit regular reports to Congress." SEC. 41. Section 12 of Republic Act No. 6675, otherwise known as the Generics Act of 1988, is hereby amended to read as follows: "SEC. 12. Penalty. - (A) Any person who shall violate Section 6(a) or 6(b) of this Act shall suffer the penalty graduated hereunder, viz: "(a) for the first conviction, he shall suffer the penalty of reprimand which shall be officially recorded in the appropriate books of the Professional Regulation Commission. "(b) for the second conviction, the penalty of fine in the amount of not less than Ten thousand pesos (Php10,000.00) but not exceeding Twenty-five thousand pesos (Php25,000.00), at the discretion of the court. "(c) for the third conviction, the penalty of fine in the amount of not less than Twenty-five thousand pesos (Php25,000.00) but not exceeding Fifty thousand pesos (Php50,000.00) and suspension of his license to practice his profession for sixty (60) days at the discretion of the court. "(d) for the fourth and subsequent convictions, the penalty of fine of not less than One hundred thousand pesos (Php100,000.00) and suspension of his license to practice his profession for one (1) year or longer at the discretion of the court. "(B) Any juridical person who violates Sections 6(c), 6(d), 7 or 8 shall suffer the penalty of a fine of not less than One hundred thousand pesos (Php100,000.00) and suspension or revocation of license to operate such drug establishment or drug outlet at the discretion of the court: Provided, That its officers directly responsible for the violation shall suffer the penalty of fine of at least Forty thousand pesos (Php40,000.00) and suspension or revocation of license to practice profession, if applicable, and by imprisonment of not less than six (6) months nor more than one (1) year or both fine and imprisonment at the discretion of the court: and, a list of drug products with the same generic name and their corresponding prices. Provided, further, That if the guilty party is an alien, he shall be ipso facto deported after service of sentence without need of further proceedings. "(C) The Secretary of Health shall have the authority to impose administrative sanctions such as suspension or cancellation of license to operate or recommend suspension of license to practice profession to the Professional Regulation Commission as the case may be for the violation of this Act.
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"The administrative sanctions that shall be imposed by the Secretary of the Department of Health shall be in a graduated manner in accordance with Section 12.A. "An administrative case may be instituted independently from the criminal case: Provided, That, the dismissal of the criminal case or the withdrawal of the same shall in no instance be a ground for the dismissal of the administrative case." SEC. 42. Implementing Rules and Regulations to the Amendments to the Generics Act of 1988. - The Department of Health, in consultation with the appropriate government agencies, shall, within one hundred twenty (120) days from the effectivity of this Act, promulgate the rules and regulations necessary to effectively implement the provisions of this Act that relate to Republic Act No. 6675, or the Generics Act of 1988. CHAPTER 7 AMENDMENTS TO REPUBLIC ACT NO. 5921, AS AMENDED, OTHERWISE KNOWN AS THE PHARMACY LAW SEC. 43. Section 25 of Republic Act No. 5921, as amended, otherwise known as the Pharmacy Law, is hereby amended to read as follows: "SEC. 25. Sale of medicine, pharmaceuticals, drugs and devices. - No medicine, pharmaceutical, or drug, except for those which are non-prescription or over-the-counter, of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or otherwise be made available to the consuming public except through a prescription drugstore or hospital pharmacy, duly established in accordance with the provisions of this Act. Non-prescription or over-the-counter drugs may be sold in their original packages, bottles, containers or in small quantities, not in their original containers to the consuming public through supermarkets, convenience stores and other retail establishments. "Pharmaceutical, drug or biological manufacturing establishments, importers and wholesalers of drugs, medicines, or biologic products, shall not sell their products for re-sale except only to retail drug outlets, hospital pharmacies or to other drug wholesalers under the supervision of a registered pharmacist, and supermarkets, convenience stores, other retail establishments for over-the-counter drugs, duly licensed by the Bureau of Food and Drugs." SEC. 44. Implementing Rules and Regulations to the Amendments to the Pharmacy Law. - The Department of Health, in consultation with the appropriate government agencies, within one hundred twenty (120) days from the effectivity of this Act, shall promulgate the rules and regulations necessary to effectively implement the provisions of this Chapter. CHAPTER 8 MISCELLANEOUS PROVISIONS SEC. 45. Congressional Oversight Committee. - For the effective implementation of this Act, there shall be created a Congressional Oversight Committee, hereinafter referred to as the Quality Affordable Medicines Oversight Committee, to be composed of five (5) members from the Senate, which shall include the Chairpersons of the Senate Committees on Trade and Commerce and Health and Demography, and, five (5) members from the House of Representatives, which shall include the Chairpersons of the House of Representatives Committees on Trade and Industry and Health. The Quality Affordable Medicines Oversight Committee shall be jointly chaired by the Chairpersons of the Senate Committee on Trade and Commerce and the House of Representatives Committee on Trade and Industry. The Vice-Chair of the oversight committee shall be jointly held by the Chairpersons of the Senate Committee on Health and Demography and the House of Representatives Committee on Health. SEC. 46. Appropriations. - For the initial implementation of this Act, the amount of Twenty-five million pesos (Php25,000,000.00), in addition to the budget of the Department of Health, shall be provided for the operations of the Office of the Secretary of the Department of Health. The Quality Affordable Medicines Oversight Committee shall be provided an initial budget of Five million pesos (Php5,000,000.00) to perform its functions as mandated under this Act. Thereafter, such sum as may be necessary for its continued implementation shall be included in the annual General Appropriations Act. SEC. 47. Separability Clause. - Any portion or provision of this Act that may be declared unconstitutional or invalid shall not have the effect of nullifying other portions and provisions hereof as long as such remaining portion or provision can still subsist and be given effect in their entirety. SEC. 48. Repealing Clause. - All laws, decrees, executive orders, proclamations and administrative regulations or parts thereof inconsistent herewith are hereby repealed or modified accordingly. SEC. 49. Effectivity Clause. - This Act shall take effect fifteen (15) days after its publication in at least two (2) national papers of general circulation.
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Congress of the Philippines Twelfth Congress First Regular Session REPUBLIC ACT NO. 9168
June 7, 2002
AN ACT TO PROVIDE PROTECTION TO NEW PLANT VARIETIES, ESTABLISHING A NATIONAL PLANT VARIETY PROTECTION BOARD AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Short Title. – This Act shall be known and cited as the "Philippine Plant Variety Protection Act of 2002" Section 2. Statement of Policies. – a) The State recognizes that an effective intellectual property system in general and the development of new plant variety in particular is vital in attaining food security for the country. To this end, it shall protect and secure the exclusive rights of breeders with respect to their new plant variety particularly when beneficial to the people for such periods as provided for in this Act. b) The use of intellectual property bears a socioeconomic function. To this end, the State shall promote the diffusion of technology and information for the promotion of national development and progress for the common good. c) The State recognizes the indispensable role of the private sector, encourages the participation of private enterprises and provides incentives to needed investments in the development of new plant varieties. d) The State recognizes that science and technology are essential for national development and promotes the adaptation of technology and knowledge from all sources for the national benefit. The State also recognizes the need to protect and secure the exclusive rights of scientists and other gifted citizens to their intellectual property and creations. e) The State, while recognizing intellectual property rights in the field of agriculture, does so in a manner supportive of and not inconsistent with its obligation to maintain a healthful ecology in accord with the rhythm and harmony of nature. TITLE II Definitions Section 3. Definitions. a) "Applicant" means the breeder who applies for the grant of a Certificate of Plant Variety Protection. b) "Board" means the National Plant Variety Protection Board created by this Act. It shall also refer to the National Seed Industry Council during the transition period from the effectivity of this Act up to the time the said Board has been organized and operating. c) "breeder" means: 1. The person who bred, or discovered and developed a new plant variety; or 2. The person who is the employer of the aforementioned person or who has commissioned the work; or 3) The successors-in-interest of the foregoing persons as the case may be; or 4) The holder of the Certificate of Plant Variety Protection. d) "Certificate of Plant Variety Protection" means the document issued by the Board pursuant to this Act for the protection of a new plant variety. e) "Commission" means to engage the services of a person to develop new plant varieties in exchange for monetary or any material consideration. f) "Harvested material" means any part of a plant with potential economic value or any product made directly therefrom in proper case.
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g) "Holder" means a person who has been granted a Certificate of Plant Variety Protection or his successors-ininterest. h) "Persons" includes natural persons and juridical persons. i) "Plant" includes terrestrial and aquatic flora. j) "Plant Variety Protection (PVP)" mans the rights of breeders over their new plant variety as defined in this Act. k) "Propagating material" means any part of the plant that can be used to reproduce the protected variety. l) "Regulations" means the rules and regulations promulgated by the Board for the purpose of implementing the provisions of this Act. m) "Variety" means a plant grouping within a single botanical taxon of the lowest known rank, that without regard to whether the conditions for plant variety protection are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant groupings by the expression of at least one (1) characteristics, and considered as a unit with regard to the suitability for being propagated unchanged. A variety may be represented by seed, transplants, plants, tubers, tissue culture plantlets, and other forms. TITLE III Conditions for the Grant of the Plant Variety Protection Section 4. The Certificate of Plant Variety Protection shall be granted for varieties that are: a) New; b) Distinct; c) Uniform; and d) Stable. Section 5. Newness. - A variety shall be deemed new if the propagating or harvested material of the variety has not been sold, offered for sale or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety; a) In the Philippines for more than one (1) year before the date of filing of an application for plant variety protection; or b) In other countries or territories in which the application has been filed, for more than four (4) years or, in the case of vines or tress, more than six (6) years before the date of filing of an application for Plant Variety Protection. However, the requirement of novelty provided for in this Act shall not apply to varieties sold, offered for sale or disposed of to others for a period of five (5) years before the approval of this Act. Provided, That application for PVP shall be filed within one (1) year from the approval of this act. Section 6. Distinctness. - A variety shall be deemed distinct if it is clearly distinguishable from any commonly known variety. The filing of an application for the granting of a plant variety protection or for the entering of a new variety in an official register of variety in the Philippines or in any country, shall render the said variety a matter of public knowledge from the date of the said application: Provided, That the application leads to the granting of a Certificate of Plant Variety Protection or the entering of the said other variety in the official register of variety as the case may be. Section 7. Uniformity. - The variety shall be deemed uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics. Section 8. Stability. - The variety shall be deemed stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
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TITLE IV Variety Denomination Section 9. Variety Denomination. - The variety shall be designated by a denomination which shall be its generic description. In particular, it must be different from any denomination that designates an existing variety of the same plant species or closely related species. Section 10. Right of Priority over Denomination. - The use of a denomination shall not be granted to a breeder if such denomination has already been registered to another breeder or is being used by a third party in relation to the sale or offering for sale of a particular variety prior to the filing date or priority date of an application for a Certificate of Plant Variety Protection. In case two (2) or more breeders/applicants apply for the registration of the same denomination, the breeder/applicant who has the earliest filing date or priority date shall have the right to register the same to the exclusion of the other applicant/breeder(s). Section 11. Figures as Denomination. - The denomination must enable the variety to be identified. It may not consist solely of figures except when it is an established practice for designating such a variety. Section 12. Misleading Denomination. - No denomination shall be accepted if it is liable to mislead or to cause confusion concerning the characteristic value or identity of the variety or identity of the breeder. Section 13. Refusal of Denomination. - If the denomination does not satisfy these requirements, its registration shall be refused and the breeder shall be required to propose another denomination within a prescribed period. The denomination shall be registered together with the grant of the breeder's right. Section 14. Denomination Used in an Application Previously Filed abroad. - An application filed in this country, the subject matter of which is the same as that of an application previously filed abroad, shall use the same denomination as the latter. However, if such denomination does not conform to the provisions of this Title, the applicant/breeder shall be required to submit a new denomination. Section 15. Obligation to Use Denomination. - Any person, who offers for sale or markets in the Philippines, propagating material of a variety protected, shall be obliged to use the denomination of that variety, even after the expiration of the breeder's right therefor except when the rule of prior rights apply. Section 16. Use of Marks. - When a protected variety is offered for sale or marketed, it may be associated with a trademark, trade name or other similar indication with a registered denomination. If such an indication is so associated, the denomination must nevertheless be easily recognizable. TITLE V Applicants to a Plant Variety Protection Section 17. Entitlement. - Any breeder, with respect to the variety developed, may apply for a plant variety developed, may apply for a plant variety protection and obtain a Certificate of Plant Variety Protection upon compliance with the requirements of this Act. Section 18. Co-ownership of the Right. - If two (2) or more persons contribute to the development of a new plant variety, all of them shall be named in the Certificate of Plant Variety Protection and shall be entitled to such rights as agreed upon in writing or in the absence thereof, the rights in proportion to their contribution in the development of plant variety. Section 19. Employee-Employer relationship. - in case an employee develops a plant variety in the course of his employment as a result of the performance of his regular duty, the plant variety protection shall belong to the employer, unless there is a written stipulation to the contrary. Section 20. First to File Rule. - If two (2) or more persons develop a new plant variety separately and independently of each other, the Certificate of Plant Variety Protection shall belong to the person who files the application first. In case two (2) or more persons file an application for the same plant variety, the right shall be granted to the person who has the earliest filing date or priority date. Section 21. Priority Date. - Any application for a Certificate of Plant Variety Protection previously filed by a breeder in another country, which by treaty, convention or law affords similar privileges to Filipino citizens, shall be considered as filed locally as of the date of filing of the foreign application: Provided, That: a) The local application expressly claims priority; b) It is filed within twelve (12) months from the filing date of the earliest foreign application; and
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c) The applicant submits, within six (6) months from the filing of the local application, authenticated copies of documents which constitute the foreign application, samples or other evidence showing that the variety which is being applied for protection is the same variety which has been applied for protection in a foreign country. Section 22. Foreign Nationals. - For purposes of this Act, a person shall be considered a national of a foreign country if he is a citizen of such country according to its laws, a natural person residing therein, or is a legal entity whose office is registered in such foreign country. Section 23. National Treatment. - Any application filed locally for a Certificate of Plant Variety Protection previously granted to a breeder in another country, which by treaty, convention or law affords similar privileges to Filipino citizens, shall be issued a Certificate of Plant Variety Protection upon payment of dues and compliance to all the provisions of this Act. This Act shall also apply to the nationals of foreign countries that are members of intergovernmental organizations or party to any multilateral agreement or convention concerning the granting of intellectual property protection to plant varieties. TITLE VI Examination of the Application and Issuance of PVP Certificate Section 24. Contents of the Application. - An application for a Certificate of Plant Variety Protection shall be filed in the manner and on the conditions prescribed in the regulations, and shall include: a) Name of the applicant/breeder; b) Address of the applicant/breeder in the Philippines; c) Name of resident agent and address in the Philippines; d) The description of the variety bred, including particulars of its characteristics; e) The variety denomination; f) Sample of propagating materials, which are the subject of the application; and g) Any other particular required by the regulations. Section 25. Rights of the Applicant to File the Application. - If the applicant is not the actual breeder, he shall indicate in his application the basis for his right to file the application. Section 26. Contents of the Description and Order of Presentation. - The Board shall issue rules and regulations stipulating the contents of the description and the order of presentation. Section 27. Other Information Required. - The applicant shall be required by the Board to furnish information regarding any application filed by him in other countries including all pertinent documents relating thereto. If the applicant has successfully claimed priority according to this Act, he shall be given a period of two (2) years from the priority date to comply with the requirements of this Section. Section 28. Manner of Conducting Tests. - The Board may carry out the necessary tests, cause the conduct of tests, or consider the results of other tests or trials that have already been done. For this purpose, the Board shall require the applicant to furnish all the necessary information, documents or materials within a period of time prescribed in the regulations. Section 29. Filing Date. - For purposes of according a filing date, the Board shall consider, as a minimum requirement, all of the above enumerated items in Section 24 hereof. Section 30. Publication of the Application. - After the Board has accorded a filing date, the application shall be published within sixty (60) days at the expense of the applicant in the Plant Variety Gazette hereunder described in Section 73. Prior to such publication, the application and all related documents shall not be made available to the public without the written consent of the applicant. After publication of the application, any person may inspect the application documents in a manner to be prescribed by the Board.
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Section 31. Opposition to the Grant of Plant Variety Protection. - Any person who believes that the applicant is not entitled to the grant of the Certificate of Plant Variety Protection may file an opposition thereto within the period prescribed by the Board from the date of its publication and before the issuance of the Certificate of Plant Variety Protection. Opposition to the application may be made on the following grounds: a) that the person opposing the application is entitled to the breeder's right as against the applicant; b) that the variety is not registrable under this Act. If the opposition is based on the conditions of Plant Variety Protection, such opposition shall be considered together with the examination of the application. Section 32. Issuance of the Certificate. - When the Board has tested and examined the variety, and/or considered the supporting materials and literature pertinent thereto, it shall issue a Certificate of Plant Variety Protection. A notice of such issuance shall be published in the manner to be prescribed in the regulations at the expense of the holder. Section 33. Term of Protection. - For trees and vines, the period of protection shall be twenty-five (25) years from the date of the grant of the Certificate of Plant Variety Protection and twenty (20) years from the said date for all other types of plants, unless declared void ab initio or cancelled otherwise, as provided under Section 61 and 62, respectively of this Act. Section 34. Annual Fees. - To maintain the validity of the Certificate of Plant Variety Protection, the holder shall pay an annual fee to be prescribed by the Board. Annual fees shall be paid starting from the fourth anniversary of the issuance of the certificate and every year thereafter with the first three (3) months of said years. The holder has the option to pay in advance this annual fee for a maximum of twenty (20) years. The Certificate of Plant Variety Protection shall expire and cease to have force and effect upon the holder's failure to pay the annual fees within the prescribed period. A notice of such cancellation shall be published in the Plant Variety Gazette one (1) year after the term of protection has expired. Before such publication, any holder who fails to pay the annual fees may request for a reinstatement of his certificate: Provided, That he settles his unpaid accounts including surcharges to be determined by the Board. Section 35. Notice of Rejection. - Whenever an application is rejected, the Board shall immediately inform the applicant on the grounds therefor, and when applicable, identify and provide the documents used as the basis for rejection. a) Reconsideration - Within two (2) months from the receipt of the rejection notice, the applicant may amend his application or traverse the finding of the Board. The Board, in turn, may reverse its initial finding or issue a final rejection within the same period. b) Appeal from the Notice of Rejection - The decision applicant of the Board is final except for anomalous circumstances involving the Board in which case the may appeal it to the proper court.
TITLE VII Rights of Holders Section 36. Rights of Holders of Plant Variety Protection. - In respect of the propagating materials, holders of a Certificate of Plant Variety Protection shall have the right to authorize any of the following acts: a) Production or reproduction; b) Conditioning for the purpose of propagation; c) Offering for sale; d) Selling or other marketing; e) Exporting; f) Importing; and
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g) Stocking for any purpose mentioned above. Section 37. The holder may make his authorization subject to conditions and limitations. Section 38. Acts in Respect of Harvested Materials. - Except for Sections 43 and 44 of this Title, the rights in the two (2) preceding sections shall also extend to the harvested materials which may be the entire plant or its other parts, if the production thereof resulted directly from the unauthorized use of the plant's propagating materials that are covered by this Act, unless the holder has had the reasonable opportunity to exercise his right in relation to the said propagating materials. Section 39. Coverage of Protection. - The rights of holder under Sections 36 and 38 of this Act shall also apply in relation to: a) Varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety; b) Varieties which are not clearly distinct from the protected variety; and c) Varieties whose production requires the repeated use of the protected variety. Section 40. Essentially Derived Varieties. - For the purpose of paragraph 39(a), a variety shall be deemed to be essentially derived from the initial variety when: a) it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety; b) It is clearly distinguishable from the initial variety; and c) Except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety. Section 41. Manner of Developing Essentially Derived Varieties. - It shall also be understood that essentially derived varieties may be obtained through processes which may include, but not limited to, the selection of a natural or induced mutant, or of a somoclonal variant, the selection of a variant individual from plants of initial variety, backcrossing or transformation by genetic engineering. Genetic engineering shall be understood as the introduction of genes by laboratory techniques. Section 42. Provisional Protection. - An applicant for a Certificate of Plant Variety Protection shall be entitled to equitable remuneration from any person who, during the period between the publication of the application for the certificate and the grant of that certificate, has carried out acts which, once the certificate is granted, required the holder's authorization as conferred in this Act: Provided, That the applicant shall initiate the legal action against the alleged infringer within two (2) years from the date of the granting of his Certificate of Plant Variety Protection. Section 43. Exceptions to Plant Variety Protection. - The Certificate of Plant Variety Protection shall not extent to: a) Acts done for noncommercial purposes; b)Acts done for experimental purposes; c) Acts done for the purpose of breeding other varieties, except when Sections 39 and 40 apply; and d) The traditional right of small farmers to save, use, exchange, share or sell their farm produce of a variety protected under this Act, except when a sale is for the purpose of reproduction under a commercial marketing agreement. The Board shall determine the condition under which this exception shall apply, taking into consideration the nature of the plant cultivated, grown or sown. This provision shall also extend to the exchange and sell of seeds among and between said small farmers: Provided, That the small farmers may exchange or sell seeds for reproduction and replanting in their own land. Section 44. Exhaustion of Plant Variety Protection. - The Certificate of Plant Variety Protection shall not extend to acts concerning any material of the protected variety, or a variety covered by the provisions of Sections 39 and 40 hereof, which has been sold or otherwise marketed by the breeder or with his consent in the Philippines, or any material derived from the said material, unless it: a) Involves further propagation of the variety in question; or
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b) Involves the export of the variety, which enables the propagation of the variety, into a country that does not protect the variety of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes. Section 45. Rights of Attribution. - No Certificate of Plant Variety Protection shall be issued without naming the breeder(s) unless this right is protested in writing within one (1) year. Section 46. Succession/Transmission. - The Certificate of Plant Variety Protection shall be considered as a property right and the transmission thereof shall be governed by the law on Property. TITLE VIII Infringement Section 47. What Constitutes Infringement. - Except as otherwise provided in this Act, any person who without being entitled to do so, performs the following acts: a) Sell the novel variety, or offer it or expose it for sale, deliver it, ship it, consign it, exchange it, or solicit an offer to buy it, or any other transfer of title or possession of it; or b) Import the novel variety into, or export it from, the Philippines; or c) Sexually multiply the novel variety as a step in marketing (for growing purposes) the variety; or d) Use the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom; or e) Use seed which had been marked "unauthorized propagation prohibited" or "unauthorized seed multiplication prohibited" or progeny thereof to propagate the novel variety; or f) Dispense the novel variety to another, in a form which can be propagated, without notice as to being a protected variety under which it was received; or g) Fails to use a variety denomination the use of which is obligatory under Section 15; or h) Perform any of the foregoing acts even in instances in which the novel variety is multiplied other than sexually, except in pursuance of a valid Philippine plant patent; or i) Instigate or actively induce performance of any foregoing acts, may be sued by the holder, who may also avail of all such relief as are available in any proceeding involving infringements of other proprietary rights. Section 48. Where to Commence Action. - Any holder may petition the proper regional trial court for infringement of his plant variety protection as defined in this Act. Section 49. Presumption of Validity. - Certificate of Plant Variety Protection shall be presumed valid and the burden of proof of their invalidity shall rest on the party assailing them. Section 50. Defenses Against Infringement Charges. - The following shall be valid defenses against infringement charges: a) Non-infringement; b) The plant variety does not possess at the time of its application criterion of novelty or distinctness; c) The alleged infringement was performed under a right adverse to it, prior to the notice of infringement; and/or d) Other defenses that are made available under this Act. Section 51. Notice. - No damages shall be awarded unless there is actual or constructive notice made upon the alleged infringer. Section 52. Damages. - The court may award actual, moral, exemplary damages and attorney's fees according to a proven amount including a reasonable royalty for the use of the protected variety.
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Section 53. Injunction. - The court may also enjoin the infringer(s) from further performing any act of infringement on the rights of the holder(s) as defined in this Act. Section 54. Court to Order Confiscation of Infringing Materials. - Upon petition by the complainant, the court may order the confiscation of infringing materials, and: a) Cause their distribution to charitable organization; b) Cause the sale and provide the proceeds thereof to research organizations; or c) Cause the return to the petitioner for further scientific use. Section 55. Prescription. - No recovery of damages for any infringement case shall prosper when the cause of action has reached more than six (6) years from the time the alleged infringement case was committed. Section 56. Criminal Penalty. - Any person who violates any of the rights of the holder provided for in this Act may also suffer the penalty of imprisonment of not less than three (3) years but not more than six (6) years and/or a fine of up to three (3) times the profit derived by virtue of the infringement but in no case should be less than One Hundred Thousand pesos (P100,000.00). TITLE IX Compulsory License Section 57. Grounds for the Grant of Compulsory Licensing. - Any interested person may file a petition for compulsory license with the Board at any time after two (2) years from the grant of the Certificate of Plant Variety Protection under this Act when it is for the public interest to grant such compulsory license, and: a) The reasonable requirements of the public for any part of the variety are not met; or b) There is an overseas market for the sale of any part of the variety and the same are not met by the holder; or c) The plant variety developed relates to or required in the production of medicine and/or any food preparation. Section 58. Scope of Compulsory License. - The Board, upon petition by any interested party and upon proof of any of the foregoing grounds, may issue a decision: a) Allowing the petitioner to produce in commercial quantity and distribute the variety protected or any part thereof; or b) Requiring the holder to ensure the availability of the propagating materials of the variety protected; or c) Requiring the petitioner to pay the holder with license fees in the form of reasonable royalties; and d) Other such additional remedies at the Board may determine to be consistent with appropriate circumstances. Section 59. Duration of the License. - A compulsory license shall be effective until the ground(s) for its issuance has been terminated as determined by the Board motu proprio or upon petition by party or parties and resolution by the Board. Section 60. Procedure for Grant. - The Board shall provide in the rules and regulations the manner and procedure for granting compulsory licenses. TITLE X Cancellation and Nullity of Plant Variety Protection Section 61. Grounds for Nullity. - The Certificate of Plant Variety Protection shall be declared void ab initio on any of the following grounds: a) The grant of the Certificate of Plant Variety Protection was essentially based upon information and documents furnished by the applicant, wherein the conditions of distinctness, uniformity, stability, and newness were not complied with the time of the grant of the certificate; or
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b) The Certificate of Plant Variety Protection was granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled. The effect of the declaration of nullity is that as if the Certificate of Plant Variety Protection was not issued. Section 62. Grounds for Cancellation. - The Plant Variety Protection shall be cancelled on any of the following grounds: a) The breeder does not provide the required information, documents, or materials necessary for verifying the maintenance of the variety; or b) the breeder fails to pay the required fees to keep his or her rights in force or provides false information in his or her application; or c) The breeder does not propose, within the time/period provided under the regulations, another suitable denomination if the denomination of the variety is cancelled after the grant of the Certificate of Plant Variety Protection; or d) The conditions of uniformity and stability could not be maintained although these were present at the time of the issuance of the Certificate of Plant Variety Protection; or e) The breeder entitled to the Certificate of Plant Variety Protection or the holder has relinquished his/her rights through a declaration in a public instrument filed with the registrar. Section 63. Venue. - Any petition to cancel a Certificate of Plant Variety Protection shall originally be under the jurisdiction of the Board. Decisions of the Board may be appealable with the Court of Appeals within fifteen (15) days from the date of notice of the Board's final decision. Section 64. Prescription. - The right to cancel a Certificate of Plant Variety Protection shall be instituted at any time within the term of protection of such right. Section 65. Publication. - A notice of the filing of a petition to cancel a Certificate of Plant Variety Protection and the final order/decision on the same shall be published in the Plant Variety Gazette at the expense of the petitioner. TITLE XI Institution Section 66. National Plant Variety Protection Board. - There is hereby created National Plant Variety Protection Board which shall be composed of the following or their duly designated representatives: a) The Secretary of the Department of Agriculture, as chairman; b) The Secretary of the Department of Science and Technology, as co-chairman; c) The Director-General of the Intellectual Property Office, as vice chairman; d) The Director of the Bureau of Plant Industry; e) The Director of the Institute of Plant Breeding of the University of the Philippines Los Baños; f) The President of the Philippine Seed Industry Association; g) A representative from a federation of small farmers' organizations to be nominated by the Secretary of Agriculture; h) A representative from the scientific community to be nominated by the National Academy of Science and Technology; and i) The Registrar (ex officio). The members of the Board or their representatives must be Filipino citizens, have good moral character and should not have been convicted of a crime involving moral turpitude. The Board shall perform the following functions:
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a) Promulgate policy guidelines for the effective implementation of the provisions of this Act; b) Have original and exclusive appellate jurisdiction over all acts of the Registrar; c) Have original jurisdiction over petitions for compulsory licensing, nullity and cancellation of the Certificate of Plant Variety Protection; d) Institutionalize database of existing plant varieties, collected from foreign and local databases, within one (1) year from the effectivity of this act; e) Call on resource persons to provide inputs that will be relevant in the performance of the tasks of the Board; f) Organize the Registrar as it sees fit; g) Approve capital expenditure and contracts of experts; and h) Perform all other functions as may be required in the implementation of this Act. Section 67. Rules and Regulations. - For the purpose of the preceding section, the Board with representatives from the Senate and House Committees on Agriculture, shall within six (6) months from the effectivity of this act, prescribe rules and regulations necessary for the implementation of its functions, or reorganize and create units therefore under its control and supervision. Section 68. Fees. - The Board shall prescribe a schedule of fees to be charge against any applicant/breeder in the course of the application for a Certificate of Plant Variety Protection or in the maintenance therefor. Section 69. Coordination and Cooperation with Other Institutions. - For the purpose of verifying certain facts such as but not limited to the requirements of stability, distinctness and uniformity, the Board may enter into agreements with other governmental or nongovernmental institutions both domestic and foreign under a set of conditions germane to its functions. Further, the Board shall also designate appropriate state colleges and universities, bona fide research institutions, or appropriate nongovernmental research centers as testing centers for the distinctness, uniformity and stability of varieties. Section 70. The PVP Fund. - There is hereby created PVP Fund, hereinafter referred to as the Fund, to be administered by the Board. All fees, fines and charges collected by the Board under this Act, shall be deposited in the Fund. The Board is hereby authorized to use and disburse the Fund. The Board is hereby authorized to use and disburse the Fund without need of approval by any government agency, and subject only to existing accounting and auditing rules and regulations for purposes of defraying the cost of operations in the delivery of its services to the public. Section 71. Gene Trust Fund. - There shall be an independent and separate trust fund established under this Act, to be administered by the Board, for the benefit of bona fide organizations or institutions managing and operating an accredited gene bank. An amount to be determined by the Board but not to exceed twenty percent (20%) of the fees and charges, shall be used for the purposes of the gene trust fund. The trust fund may also accept donations from national and international institutions and other organizations and individuals interested in strengthening genetic conservation. Section 72. Farming Communities and Bona fide Farmers' Organizations. - Farming communities and bona fide farmers' organizations are encouraged to build an inventory of locally-bred varieties as an option to protect these resources from misappropriation and unfair monopolization. Section 73. Publication. - The Board shall maintain its own publication which shall be known as the Plant Variety Gazette for all the publication requirements of this Act and for other purposes which the Board may require. Copies shall be distributed to all concerned especially to the Members of the Senate and House Committees on Agriculture: Provided, That the Board shall distribute for free, and in the major dialect understood by the locality, copies of the Plant Variety Gazette to small farmer groups and indigenous communities. Section 73. The Registrar. - There is hereby established a National Plant Variety Protection Registrar and an Associate Registrar under the control and supervision of the Board. The Registrar and the Associate Registrar shall be appointed by the President of the Philippines upon the recommendation of the Board and shall have a term of six (6) years. However, the Registrar who shall be first appointed shall serve for a term of seven (7) years. The Registrar shall be a citizen of the Philippines with good moral character, proven track record in the field of plant science, and/or extensive executive experience and capability. Functions of the Registrar. The Registrar shall have the following functions:
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a) Has original and exclusive jurisdiction to receive, process, examine all applications for Certificate of Plant Variety Protection in accordance with this Act, and in meritorious cases, issued the said certificates and sign them in the name of the Board; b) Issue and maintain a systematic record of all Certificate of Plant Variety Protection and transactions related thereto; c) Implement the rules and regulations issued by the Board; d) Institutionalize, maintain and continuously update a database of existing plant varieties collected from foreign and local databases; e) Maintain a library of scientific and other works and periodicals, both foreign and local, to aid his examiners in the discharge of their duties; f) Maintain samples of the propagating materials of the protected variety; and g) Perform such other functions as may be prescribed by the Board.
TITLE XII Miscellaneous and Final Provisions Section 75. Relation with Other Laws. - The interpretation of the provisions of this Act shall not negate the effectivity and application of Republic Act No. 8371, otherwise known as the "Indigenous People's Rights Act"; Republic Act No. 9147, otherwise known as the "Wildlife Resources Conservation and Protection Act"; Presidential Decree No. 1151, otherwise known as the "Philippine Environmental Policy"; and Executive Order No. 430 and Administration Order No. 8, Series of 2002 of the Department of Agriculture or the rules and regulations for the importation and release to the environment of plant products derived from the use of biotechnology. Section 76. Transitory Provisions. - The National Seed Industry Council, which was created by Republic Act No. 7308 or the National Seed Industry Development Act, shall perform the functions of the Board until the latter has been fully organized, but not later than three (3) years from the effectivity of this act. Within the same period, the Director of the Bureau of Plant Industry shall be the Acting Registrar and the Assistant Director of the same Bureau shall act as the Associate Registrar. Section 77. Appropriations. - The Secretary of the Department of Agriculture shall immediately include in its program and issue such rules and regulations to implement the provisions of this Act, the funding of which shall be included in the annual General Appropriations Act. Section 78. Separability Clause. - If, for any reason, any provision of this Act is declared invalid or unconstitutional, the other parts not affected thereby shall continue to be in full force and effect. Section 79. Repealing Clause. - All laws, decrees, executive orders, and rules and regulations, or parts thereof that are inconsistent with the provisions of this Act, are hereby repealed or modified accordingly. Section 80. Effectivity. - This Act shall take effect thirty (30) days after its complete publication in a newspaper of general circulation. Approved,
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Congress of the Philippines Eleventh Congress REPUBLIC ACT NO. 9150
August 06, 2001
AN ACT PROVIDING FOR THE PROTECTlON OF LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS, AMENDING FOR THE PURPOSE CERTAIN SECTIONS OF REPUBLIC ACT NO. 8293, OTHERWISE KNOWN AS THE INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES AND FOR OTHER PURPOSES Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled: Section 1, Sections 112, 113, 114, 116, 117, 118, 119 and 120 under Chapter XIIl of R.A. No. 8293 are hereby amended to read as follows: "CHAPTER XIII "INDUSTRIAL DESIGN AND LAYOUT DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS "SEC. 112. Definition of Terms:" "1. An Industrial Design is any composition of lines or colors or any three-dimensional form, whether or not associated with lines or colors: Provided, That such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft; "2. Integrated Circuit means a product, in its final form, or an intermediate form, in which the elements, at least one of which is an active element and some or all of the interconnections are integrally formed in and/or on a piece of material, and which is intended to perform an electronic function; and "3. Layout-Design is synonymous With 'Topography' and means the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture." "SEC. 113. Substantive Conditions/or Protection. - 113.1. Only industrial designs that are new or ornamental shall benefit from protection under this Act. "113.2. Industrial designs dictated essentially by technical or functional considerations to obtain a technical result or those that are contrary to public order, health or morals shall not be protected. "113.3. Only layout -designs of integrated circuits that are original shall benefit from protection under this Act. A layout-design shall be considered original if it is the result of its creator's own intellectual effort and is not commonplace among creators of layout-designs and manufacturers of integrated circuits at the time of its creation. "113.4. A layout-design consisting of a combination of elements and interconnections that are commonplace shall be protected only if the combination, taken as a whole, is original." "SEC.114. Contents of the Application. - 114.1. Every application for registration of an industrial design or layoutdesign shall contain: "(a) A request for registration of the industrial design or layout-design; "(b) Information identifying the applicant; "(c) An indication of the kind of article of manufacture or handicraft to which the industrial design or layout-design shall be applied; "(d) A representation of the article of manufacture or handicraft by way of drawings, photographs or adequate graphic representation of the industrial design or of the layout-design as applied to the article of manufacture or handicraft which clearly and fully discloses those features for which protection is claimed; and "(e) The name and address of the creator, or where the applicant is not the creator, a statement indicating the origin of the right to the industrial design or layout-design registration. "114.2. The application may be accompanied by a specimen of the article embodying the industrial design or layoutdesign and shall be subject to the payment of the prescribed fee."
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"SEC.116. Examination. - 116.1. The Office shall accord as the filing date the date of receipt of the application containing indications allowing the identity of the applicant to be established and a representation of the article embodying the industrial design or the layout -design or a pictorial representation thereof. "116.2. If the application does not meet these requirements, the filing date should be that date when all the elements specified in Sec. 114 are filed or the mistakes corrected. Otherwise, if the requirements are not complied within the prescribed period, the application shall be considered withdrawn. "116.3. After the application has been accorded a filing date and the required fees paid on time, the applicant shall comply with the requirements of Sec. 114 within the prescribed period, otherwise the application shall be considered withdrawn. "116.4. The Office shall examine whether the industrial design or layout-design complies with requirements of Sec. 112 (Definitions) and Sec. 113 (Substantive Conditions for Protection)." "SEC. 117, Registration. - 117.1. Where the Office finds that the conditions referred to in Sec. 113 are fulfilled, it shall order that registration be effected in the industrial design or layout-design register and cause the issuance of an industrial design or layout-design certificate of registration; otherwise, it shall refuse the application. " 117.2. The form and contents of an industrial design or layout-design certificate shall be established by the Registrations: Provided, That the name and address of the creator shall be mentioned in every case. " 117.3. Registration shall be published in the form and within the period fixed by the Regulations. " 117.4. The Office shall record in the register any change in the identity of the proprietor of the industrial design or layout design or his representative, if proof thereof is furnished to it. A fee shall be paid, with the request to record the change in the identity of the proprietor, if the fee is not paid, the request shall be deemed not to have been filed. In such case, the former proprietor and the former representative shall remain subject to the rights and obligations as provided in this Act. " 117.5. Anyone may inspect the Register and the files of registered industrial designs or layout-designs including files of cancellation proceedings." "SEC. 118. The Term of Industrial Design or Layout-Design Registration. - 118.1. The registration of an industrial design shall be for a period of five (5) years from the filing date of the application. " 118.2. The registration of an industrial design may be renewed for not more than two (2) consecutive periods of five (5) years each, by paying the renewal fee. "118.3. The renewal fee shall be paid within twelve (12) months preceding the expiration of the period of registration. However, a grace period of six (6) months shall be granted for payment of the fees after such expiration, upon payment of a surcharge. "118.4. The Regulations shall fix the amount of renewal fee, the surcharge and other requirements regarding the recording of renewals of registration. " 118.5. Registration of a layout-design shall be valid for a period often (10) years, without renewal, and such validity to be counted from the date of commencement of the protection accorded to the layout-design. The protection of a layout-design under this Act shall commence: "a) on the date of the first commercial exploitation, anywhere in the world, of the layout-design by or with the consent of the right holder: Provided, That an application for registration is filed with the Intellectual Property Office within two (2) years from such date of first commercial exploitation; or "b) on the filing date accorded to the application for the registration of the layout-design if the layout-design has not been previously exploited commercially anywhere in the world." "SEC. 119. Application of Other Sections and Chapters. - 119.1. The following provisions relating to patents shall apply mutatis mutandis to an industrial design registration. "SECTION21 - Novelty; "SECTION 24 - Prior art: Provided, That the disclosure is contained in printed documents or in any tangible form; "SECTION 25 - Non-prejudicial Disclosure;
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"SECTION 28 - Right to a Patent; "SECTION 29 - First to File Rule; "SECTION 30 - Inventions Created Pursuant to a Commission; "SECTION 31 - Right of Priority: Provided, That the application for industrial design shall be filed within six (6) months from the earliest filing date of the corresponding foreign application; "SECTION 33 - Appointment of Agent or Representative; "SECTION 51 - Refusal of the Application; "SECTION 56 to 60 - Surrender, Correction of and Changes in Patent; CHAPTER VII - Remedies of a Person with a Right to Patent; CHAPTER VIII - Rights of Patentees and Infringement of Patents; and "CHAPTER XI - Assignment and Transmission of Rights "119.2. If the essential elements of an industrial design which is the subject of an application have been obtained from the creation of another person without his consent, protection under this Chapter cannot be invoked against the injured party. "119.3. The following provisions relating to patents shall apply mutatis mutandis to a layout -design of integrated circuits registration: "SECTION 28 - Right to a Patent; "SECTION 29 - First to File Rule; "SECTION 30 - Inventions Created Pursuant to a Commission; "SECTION 33 - Appointment of Agent or Representative; "SECTION 56 - Surrender of Patent; "SECTION 57 - Correction of Mistakes of the Office; "SECTION 58 - Correction of Mistakes in the Application; "SECTION 59 - Changes in Patents; "SECTION 60 - Form and Publication of Amendment; "CHAPTER VII - Remedies of a Person with a Right to Patent; "CHAPTER VIII - Rights of Patentees and Infringement of Patents: Provided, That the layout-design rights and limitation of layout-design rights provided hereunder shall govern: "CHAPTER X - Compulsory Licensing; "CHAPTER XI - Assignment and Transmission of Rights "119.4. Rights Conferred to the Owner of a Layout-Design Registration. - The owner of a layout-design registration shall enjoy the following rights: "(1) to reproduce, whether by incorporation in an integrated circuit or otherwise, the registered layout-design in its entirety or any part thereof, except the act of reproducing any part that does not comply with the requirement of originality; and
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"(2) to sell or otherwise distribute for commercial purposes the registered layout design, an article or an integrated circuit in which the registered layout-design is incorporated. "119.5. Limitations of Layout Rights. - The owner of a layout design has no right to prevent third parties from reproducing, selling or otherwise distributing for commercial purposes the registered layout-design in the following circumstances: "(1) Reproduction of the registered layout-design for private purposes or for the sole purpose of evaluation, analysis, research or teaching; "(2) Where the act is performed in respect of a layout-design created on the basis of such analysis or evaluation and which is itself original in the meaning as provided herein; "(3) Where the act is performed in respect of a registered lay-out-design, or in respect of an integrated circuit in which such a layout-design is incorporated, that has been put on the market by or with the consent of the right holder; "(4) In respect of an integrated circuit where the person performing or ordering such an act did not know and had no reasonable ground to know when acquiring the integrated circuit or the article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design: Provided, however,That after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the said acts only with respect to the stock on hand or ordered before such time and shall be liable to pay to the right holder a sum equivalent to at least 5% of net sales or such other reasonable royalty as would be payable under a freely negotiated license in respect of such layout-design; or "(5) Where the act is performed in respect of an identical layout-design which is original and has been created independently by a third party." "SEC. 120. Cancellation of Design Registration. - 120.1. At any time during the term of the industrial design registration, any person upon payment of the required fee, may petition the Director of Legal Affairs to cancel the industrial design on any of the following grounds: "(a) If the subject matter of the industrial design is not registerable within the terms of Sections 112 and 113; "(b) If the subject matter is not new; or "(c) If the subject matter of the industrial design extends beyond the content of the applic.'1tion as originally filed. "120.2. Where the grounds for cancellation relate to a part of the industrial design, cancellation may be effected to such extent only. The restriction may be effected in the form of an alteration of the effected features of the design. "120.3. Grounds for Cancellation of Layout-Design of Integrated Circuits.- Any interested person may petition that the registration of a layout-design be cancelled on the ground that: "(i) the layout-design is not protectable under this Act; "(ii) the right holder is not entitled to protection under this Act; or "(iii) where the application for registration of the layout-design, was not filed within two (2) years from its first commercial exploitation anywhere in the world. "Where the grounds for cancellation are established with respect only to a part of the layout-design, only the corresponding part of the registration shall be cancelled. "Any cancelled layout-design registration or part thereof, shall be regarded as null and void from the beginning and may be expunged from the records of the Intellectual Property Office. Reference to all cancelled layout-design registration shall be published in the IPO Gazette." Section 2. Implementing Rules and Regulations. - The Intellectual Property Office may issue Regulations prescribing details for the implementation of this law. The Regulations may, in particular, provide for the payment of fees in connection with applications for the registration of layout-designs of integrated circuits and matters related thereto, including Administrative Instructions relating to the procedures and other functions of the responsible until duly designated by the Director General. Section 3. Applicability. - The provisions of this Act shall apply to layout-designs of integrated circuits that were commercially exploited anywhere in the world from and after January 1998 provided they meet the conditions for protection under this Act.
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Section 4. Repealing Clause. - All acts and parts of acts inconsistent herewith are hereby repealed or amended accordingly. Section 5. Separability Clause. - If any provision of this Act or the application of such provision to any circumstance is held invalid, the remainder of this Act shall not be affected thereby. Section 6. Effectivity. - This Act shall take effect fifteen (15) days after its publication in two (2) newspapers of general circulation. Approved,
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REPUBLIC ACT NO. 8792 June 14, 2000 AN ACT PROVIDING AND USE OF ELECTRONIC COMMERCIAL AND NON-COMMERCIAL TRANSACTIONS, PENALTIES FOR UNLAWFUL USE THEREOF, AND OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: PART I SHORT TITLE AND DECLARATION OF POLICY Section 1. Short Title- This Act shall be known and cited as the "Electronic Commerce Act." Section 2. Declaration of Policy- The State recognizes the vital role of information and communications technology (ICT) in nation-building; the need to create an information-friendly environment which supports and ensures the availability, diversity and affordability of ICT products and services; the primary responsibility of the private sector in contributing investments and services in ICT; the need to develop, with appropriate training programs and institutional policy changes, human resources for the information age, a labor force skilled in the use of ICT and population capable of operating and utilizing electronic appliances and computers; its obligation to facilitate the transfer and promotions of technology; to ensure network security, connectivity and neutrality of technology for the national benefit; and the need to marshal, organize and deploy national information infrastructures, comprising in both communications network and strategic information services, including their interconnection to the global information networks, with the necessary and appropriate legal, financial, diplomatic and technical framework, systems and facilities. PART II ELECTRONIC COMMERCE IN GENERAL CHAPTER I GENERAL PROVISIONS Section 3. Objective- This Act aims to facilitate domestic and international dealings, transactions, arrangements agreements, contracts and exchanges and storage of information through the utilization of electronic, optical and similar medium, mode instrumentality and technology to recognize the authenticity and reliability of electronic data messages or electronic documents related to such activities and to promote the universal use of electronic transactions in the government and by the general public. Section 4. Sphere of Application- This Act shall apply to any kind of electronic document used in the context of commercial and non-commercial activities to include domestic and international dealings, transactions, arrangements, agreements contracts and exchanges and storage of information. Section 5. Definition of Terms- For the purposes of this Act, the following terms are defined, as follows: (a) "Addressee" refers to a person who is intended by the originator to receive the electronic data message or electronic document, but does not include a person acting as an intermediary with respect to that electronic data message or electronic data document."Computer" refers to any device or apparatus singly or interconnected which, by electronic, electro-mechanical, optical and/or magnetic impulse, or other means with the same function, can receive, record, transmit, store, process, correlate, analyze, projects, retrieve, and/or produce information, data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of these functions. (b) "Electronic data message" refers to information generated, sent, received or stored by electronic, optical or similar means. (c) "Information and Communications System" refers to a system for generating, sending, receiving, storing, or otherwise processing electronic documents and includes the computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic document. (d) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic from, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document. (e) "Electronic document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be prove and affirmed, which is receive, recorded, transmitted, stored, processed, retrieved or produced electronically. (f) "Electronic key" refers to a secret code which secures and defends sensitive information that crossover public channels into a form decipherable only with a matching electronic key.
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(g) "Intermediary" refers to a person who in behalf of another person and with respect to a particular electronic document sends, receives and/or stores provides other services in respect of that electronic data message or electronic document. (h) "Originator" refers to a person by whom, or on whose behalf, the electronic document purports to have been created, generated and/or sent. The term does not include a person acting as an intermediary with respect to that electronic document. (i) "Service provider" refers to a provider ofI. Online services or network access or the operator of facilities therefor including entities offering the transmission, routing, or providing of connections for online communications, digital or otherwise, between or among points specified by a user, of electronic documents of the user's choosing; or II. The necessary technical means by which electronic documents of an originator may be stored and made accessible to designated or undesignated third party. Such service providers shall have no authority to modify or alter the content of the electronic document received or to make any entry therein on behalf of the originator, addressee or any third party unless specifically authorized to do so, and who shall retain the electronic document in accordance with the specific request or as necessary for the purpose of performing the services it was engaged to perform. CHAPTER II LEGAL RECOGNITION OF ELECTRONIC DATA MESSAGES AND ELECTRONIC DOCUMENTS Section 6. Legal Recognition of Electronic Data Messages- Information shall not be denied validity or enforceability solely on the ground that it is in the form of electronic data message purporting to give rise to such legal effect, or that it is merely incorporated by reference in that electronic data message. Section 7. Legal Recognition of Electronic documents- Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and(a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as to be usable for subsequent reference, in that– i. The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change, or any change which arises in the normal course of communication, storage and display; and ii. The electronic document is reliable in the light of the purpose for which it was generated and in the light of all relevant circumstances. (b) Paragraph (a) applies whether the requirement therein is in the from of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original from. (c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document ifi. There exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final from; and ii. That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity. For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. This Act does not modify any statutory any statutory rule relating to admissibility of electronic data massages or electronic documents, except the rules relating to authentication and best evidence. Section 8. Legal Recognition of Electronic Signatures.- An electronic signature on the electronic document shall be equivalent to the signature of a person on a written document if the signature is an electronic signature and proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic document, existed under which-
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(a) A method is used to identify the party sought to be bound and to indicate said party's access to the electronic document necessary for his consent or approval through the electronic signature; (b) Said method is reliable and appropriate for the purpose for which the electronic document was generated or communicated, in the light of all circumstances, including any relevant agreement; (c) It is necessary for the party sought to be bound, in or order to proceed further with the transaction to have executed or provided the electronic signature; and (d) The other party is authorized and enable to verify the electronic signature and to make the decision to proceed with the transaction authenticated by the same. Section 9. Presumption Relating to Electronic Signatures-In any proceedings involving an electronic signature, it shall be presumed that, (a) The electronic signature is the signature of the person to whom it correlates; and (b) The electronic signature was affixed by that person with the intention of signing or approving the electronic document unless the person relying on the electronically designed electronic document knows or has noticed of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances. Section 10. Original Documents.(1) Where the law requires information to be presented or retained in its original form, that requirement is met by an electronic data message or electronic document if; (a) the integrity of the information from the time when it was first generated in its final form, as an electronic document is shown by evidence aliunde or otherwise; and (b) where otherwise it is required that information be resented, that the information is capable of being displayed to the person to whom it is to be presented. (2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being presented or retained in its original form. (3) For the purpose of subparagraph (a) of paragraph (1): (a) the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display ; and (b) the standard of reliability required shall be assessed in the light of purposed for which the information was generated and in the light of all the relevant circumstances. Section 11. Authentication of Electronic Data Messages and Electronic Documents.- Until the Supreme Court by appropriate rules shall have so provided, electronic documents, electronic data messages and electronic signatures, shall be authenticated by demonstrating, substantiating and validating a claimed identity of a user, device, or another entity is an information or communication system, among other ways, as follows; (a) The electronic signatures shall be authenticated by proof than a letter , character, number or other symbol in electronic form representing the persons named in and attached to or logically associated with an electronic data message, electronic document, or that the appropriate methodology or security procedures, when applicable, were employed or adopted by such person, with the intention of authenticating or approving in an electronic data message or electronic document; (b) The electronic data message or electronic document shall be authenticated by proof that an appropriate security procedure, when applicable was adopted and employed for the purpose of verifying the originator of an electronic data message or electronic document, or detecting error or alteration in the communication, content or storage of an electronic document or electronic data message from a specific point, which, using algorithms or codes, identifying words or numbers, encryptions, answers back or acknowledgement procedures, or similar security devices. The supreme court may adopt such other authentication procedures, including the use of electronic notarization systems as necessary and advisable, as well as the certificate of authentication on printed or hard copies of the electronic documents or electronic data messages by electronic notaries, service providers and other duly recognized or appointed certification authorities.
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The person seeking to introduce an electronic data message or electronic document in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic data message or electronic document is what the person claims it on be. In the absence of evidence to the contrary, the integrity of the information and communication system in which an electronic data message or electronic document is recorded or stored may be established in any legal proceeding – a.) By evidence that at all material times the information and communication system or other similar device was operating in a manner that did not affect the integrity of the electronic data message or electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system, b.) By showing that the electronic data message or electronic document was recorded or stored by a party to the proceedings who is adverse in interest to the party using it; or c.) By showing that the electronic data message or electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using the record. Section 12. Admissibility and Evidential Weight of Electronic Data Message or electronic document. – In any legal proceedings, nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence – (a) On the sole ground that it is in electronic form; or (b) On the ground that it is not in the standard written form, and the electronic data message or electronic document meeting, and complying with the requirements under Sections 6 or7 hereof shall be the best evidence of the agreement and transaction contained therein. In assessing the evidential weight of an electronic data message or electronic document, the reliability of the manner in which it was generated, stored or communicated, the reliability of the manner in which its originator was identified, and other relevant factor shall be given due regard. Section 13, Retention of Electronic Data Message or Electronic Document. – Notwithstanding any provision of law, rule or regulation to the contrary – (a) The requirement in any provision of law that certain documents be retained in their original form is satisfied by retaining them in the form of an electronic data message or electronic document which – (i) Remains accessible so as to be usable for subsequent reference; (ii) Is retained in the format in which it was generated, sent or received, or in a format which can be demonstrated to accurately represent the electronic data message or electronic document generated, sent or received; (iii) Enables the identification of its originator and addressee, as well as the detemination of the date and the time it was sent or received. (b) The requirement referred to in paragraph (a) is satisfied by using the services of a third party, provided that the conditions set fourth in subparagraph s (I), (ii) and (iii) of paragraph (a) are met. Section 14. Proof by Affidavit, - The matters referred to in Section 12, on admissibility and Section 9, on the presumption of integrity, may be presumed to have been established by an affidavit given to the best of the deponent's knowledge subject to the rights of parties in interest as defined in the following section. Section 15. Cross – Examination. (1) A deponent of an affidavit referred to in Section 14 that has been introduced in evidence may be cross-examined as of right by a party who has introduced the affidavit or has caused the affidavit to be introduced. (2) Any party to the proceedings has the right to cross-examine a person referred to in section 11, Paragraph 4, sub paragraph c. CHAPTER III. COMMUNICATION OF ELECTRONIC DATA MESSAGES OR ELECTRONIC DOCUMENTS Section 16. Formation of Validity of Electronic Contracts.
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(1) Except as otherwise agreed by the parties, an offer, the acceptance of an offer and such other elements required under existing laws for the formation of contracts may be expressed in, demonstrated and proved by means of electronic data messages or electronic documents and no contract shall be denied validity or enforceability on the sole ground that it is in the form of an electronic data message or electronic document, or that any or all of the elements required under existing laws for the formation of contracts is expressed, demonstrated and proved by means of electronic data messages or electronic documents. (2) Electronic transactions made through networking among banks, or linkages thereof with other entities or networks, and vice versa, shall be deemed consummated upon the actual dispensing of cash or the debit of one account and the corresponding credit to another, whether such transaction is initiated by the depositor or by an authorized collecting party: provided, That the obligation of one bank, entity, or person similarly situated to another arising therefrom shall considered absolute and shall not be subjected to the process of preference of credits. Section 17. Recognition by Parties of Electronic Data Message or Electronic document. – As between the originator and the addressee of an electronic data message or electronic document, a declaration of will or other statement shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic data message or electronic document. Section 18. Attribution of Electronic Data Message. – (1) An electronic data message or electronic document is that of the originator if it was set by the originator himself. (2) As between the originator and the addressee, an electronic data message or electronic document is deemed to be that of the originator if it was sent: (a) by a person who had the authority to act on behalf of the originator with respect to that electronic data message or electronic document; or (b) by an information system programmed by, or on behalf of the originator to operate automatically. (3) As between the originator and the addressee, an addressee is entitled to regard an electronic data message or electronic document as being that of the originator, and to act on that assumption, if: (a) in order to ascertain whether the electronic data message or electronic document was that of the originator, the addressee properly applied a procedure previously agreed to by the originator for that purpose; or (b) the electronic data message or electronic document as received by the addressee resulted from the actions of a person whose relationship with the originator or with any agent of the originator enabled that person to again access to a method used by the originator to identify electronic data message or electronic documents as his own. (4) Paragraph (3) does not apply: (a) as of the time when the addressee has both received notice from the originator that the electronic data message or electronic document is not that of the originator, and has reasonable time to act accordingly; or (b) in a case within paragraph (3) sub-paragraph (b), at any time when the addressee knew or should have known, had it exercised reasonable care of used any agreed procedure, that the electronic data message or electronic document was not that of the originator. (5) Where an electronic data message or electronic document is that of the originator or is deemed to be that of the originator, or the addressee is entitled to act on that assumption, then, as between the originator and the addressee, the addressee is entitled to regard the electronic data message or electronic document as received as being what the originator intended to send, and to act on that assumption. The addressee is not so entitled when it knew or should have known, had it exercised treasonable care or used any agreed procedure, that the transmission resulted in any error in the electronic data message or electronic document as received. (6) The addressee is entitled to regard each electronic data message or electronic document received as a separate electronic data message o r electronic document and to act on that assumption, except to the extent that it duplicates another electronic data message or electronic document and the addressee knew or should have known, had it exercised reasonable care or used any agreed procedure, that the electronic data message or electronic document was a duplicate. Section 19. Error on Electronic Data Message or Electronic Document. – The addressee is entitled to regard the electronic data message or electronic document received as that which the originator intended to send, and to act on that assumption, unless the addressee knew or should have known, had the addressee exercised reasonable care or used the appropriate procedure –
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(a) That the transmission resulted in any error there in or in the electronic data message or electronic document enters the designated information system, or (b) That electronic data message or electronic document is sent to an information system which is not so designated by the addressee for the purposes. Section 20. Agreement on Acknowledgement of Receipt of Electronic Data Message or Electronic Document. – The following rules shall apply where, on or before sending an electronic data message or electronic document, the originator and the addressee have agreed, or in that electronic document or electronic data message, the originator has requested, that receipt of the electronic document or electronic data message be acknowledge: a.) Where the originator has not agreed with the addressee that the acknowledgement be given in particular method, an acknowledgement may be given by or through any communication by the addressee, automated or otherwise, or any conduct of the addressee, sufficient to indicate to the originator that the electronic data message or electronic document has been received. b.) Where the originator has stated that the effect or significance of the electronic data message e or electronic document is conditional on receipt of the acknowledgement thereof, the electronic data message or electronic document is treated as though it has never been sent, until the acknowledgement is received. c.) Where the originator has not stated that the effect or significance of the electronic data message or electronic document is conditional on receipt of the acknowledgement, and the acknowledgement has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed, within the reasonable time, the originator may give notice to the addressee stating that no acknowledgement has been received and specifying a reasonable time by which the acknowledgement must be received; and if the acknowledgement is not received within the time specified an subparagraph (c), the originator may, upon notice to the addressee, treat the electronic data message or electronic document as though it had never been sent, or exercise any other rights it may have. Section 21. Time of Dispatch of Electronic Data Messages or Electronic Documents. – Unless otherwise agreed between the originator and the addressee, the dispatch of an electronic data message or electronic document occurs when it enters an information system outside the control of the originator or of the person who sent the electronic data message or electronic document on behalf of the originator. Section 22. Time of Receipt of Electronic Data Messages or Electronic Documents. – Unless otherwise agreed between the originator and the addressee, the time of receipt of an electronic data message or electronic document is as follows: a.) If the addressee has designated an information system for the purpose of receiving electronic data messages or electronic documents, receipt occurs at the time when the electronic data message or electronic document enters the designated information system: Provide, however, That if the originator and the addressee are both participants in the designated information system, receipt occurs at the time when the electronic data message or electronic document is retrieved by the addressee; b.) If the electronic data message or electronic document is sent to an information system of the addressee that is not the designated information system, receipt occurs at the time when the electronic data message or electronic document is retrieved by the addressee; c.) If the addressee has not designated an information system, receipt occurs when the electronic data message or electronic document enters an information system of the addressee. These rules apply not with standing that the place where the information system is located may be different from the place where the electronic data message or electronic document is deemed to be received. Section 23. Place of Dispatch and Receipt of Electronic Data Messages or Electronic Documents.- Unless otherwise agreed between the originator and the addressee, an electronic data message or electronic document is deemed to be dispatched at the place where the originator has its place of business and received at the place where the addressee has its place of business. This rule shall apply even if the originator or addressee had used a laptop other portable device to transmit or received his electronic data message or electronic document. This rules shall also apply to determine the tax situs of such transaction. For the purpose hereof – a. If the originator or addressee has more than one place of business is that which has the closet relationship to the underlying transaction or, where there is no underlying transaction, the principal place of business. b. If the originator or the addressee does not have a place of business, reference is to be made to its habitual residence; or
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c. The "usual place of residence" in relation to a body corporate, means the place where it is incorporated or otherwise legally constituted. Section 24. Choice of Security Methods. – Subject to applicable laws and /or rules and guidelines promulgated by the Department of Trade and Industry with other appropriate government agencies, parties to any electronic transaction shall be free to determine the type of level of electronic data message or electronic document security needed, and to select and use or implement appropriate technological methods that suit their need. PART III ELECTRONIC COMMERCE IN CARRIAGE OF GOODS Section 25. Actions Related to Contracts of Carriage of Goods. – without derogating from the provisions of Part Two of this Act, this Chapter applies to any action in connection with, or in pursuance of, a contract of carriage of goods, including but not limited to: (a) (i) furnishing the marks, number, quantity or weight of goods; (ii) stating or declaring the nature or value of goods; (iii) issuing a receipt for goods; (iv) confirming that goods have been loaded; (b) (i) notifying a person of terms and conditions of the contract; (ii) giving instructions to a carrier; (c) (i) claiming delivery of goods; (ii) authorizing release of goods; (iii) giving notice of loss of, or damage to goods; (d) giving any other notice or statement in connection with the performance of the contract; (e) undertaking to deliver goods to a named person or a person authorized to claim delivery; (f) granting, acquiring, renouncing, surrendering, transferring or negotiating rights in goods; (g) acquiring or transferring rights and obligations under the contract. Section 26. Transport Documents. – (1) Subject to paragraph (3), where the law requires that any action referred to in Section 25 be carried out in writing or by using a paper document, that requirement is met if the action is carried out by using one or more electronic data messages or electronic documents. (a) Paragraph (1) applies whether the requirement there in is in the form of an obligation or whether the law simply provides consequences for failing either to carry out the action in writing or to use a paper document. (b) If a right is to be granted to, or an obligation is to be acquired by, one person and no person, and if the law requires that, in order to effect this, the right or obligation must be conveyed to that person by the transfer, or use of, a paper document, that requirement is met if the right or obligation is conveyed by using one or more electronic data messages or electronic documents: Provided, that a reliable method is used to render such electronic data messages or electronic documents unique. (c) For the purposes of paragraph (3), the standard of reliability required shall be assessed in the light of the purpose for which the right or obligation was conveyed and in the light of all the circumstances, including any relevant agreement. (d) Where one or more electronic data messages or electronic documents are used to effect any action in subparagraph (f) and (g) of Section 25, no paper document used to effect any such action is valid unless the use of electronic data message or electronic document has been terminated and replaced by the used of paper documents. A paper document issued in these circumstances shall contain a statement of such termination. The re[placement of the electronic data messages or electronic documents by paper documents shall not affect the rights or obligation of the parties involved.
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(e) If a rule of laws is compulsorily applicable to a contract of carriage of goods which is in, or is evidenced by, a paper document, that rule shall not be inapplicable to such a contract of carriage of goods which is evidenced by one or more electronic data messages or electronic documents by reason of the fact that the contract is evidenced by such electronic data message or electronic documents instead of by a paper document. PART IV ELECTRONIC TRANSACTIONS IN GOVERNMENT Section 27. Government Use of Electronic Data Messages, Electronic Documents and Electronic Signature. – Not with standing any law to the contrary, within two (2) years from the date of the effectivity of this Act, all departments, bureaus, offices and agencies of the government, as well as all government-owned and –controlled corporations, that pursuant to law require or accept the filling of documents, require that documents be created, or retained and/or submitted, issue permits, licences or certificates of registration or approval, or provide for the method and manner of payment or settlement of fees and other obligations to the government, shall – (a) accept the creation, filing or retention of such documents in the form of electronic data messages or electronic documents; (b) issue permits, licences, or approval in the form of electronic data messages or electronic documents; (c) require and/or accept payments, and issue receipt acknowledging such payments, through systems using electronic data messages or electronic documents; or (d) transact the government business and/or perform governmental factions using electronic data messages or electronic documents, and for the purpose, are authorized to adopt and promulgate, after appropriate public hearing and with due publications in newspapers of general circulation, the appropriate rules, regulations, or guidelines, to, among others, specify – 1) the manner and format in which such electronic data messages or electronic documents shall be filed, created, retained or issued; 2) where and when such electronic data messages or electronic documents have to signed, the use of an electronic signature, the type of electronic signature required; 3) the format of an electronic data message or electronic document and the manner the electronic signature shall be affixed to the electronic data messages or electronic documents; 4) the control processes and procedures appropriate to ensure adequate integrity, security and confidentiality of electronic data messages or electronic documents or records of payments; 5) other attributes required to electronic data messages or electronic documents; and 6) the full or limited use of the documents and papers for compliance with the government requirements: provided, That this Act shall be itself mandate any department of the government, organ of state or statutory corporation to accept or issue any document in the form of electronic data messages or electronic documents upon the adoption, promulgation and publication of the appropriate rules, regulations or guidelines. Section 28. RPWEB Promote the Use of Electronic Documents or Electronic Data Messages in Government and to the General Public.- Within two (2) years from the effectivity of this Act, There shall be installed an electronic online network in accordance with Administrative Order 332 and House of Representatives Resolution 890, otherwise known as RPWEB, to implement Part IV of this Act to facilitate the open, speedy and efficient electronic online transmission, conveyance and use of electronic data messages or electronic documents amongst all government departments, agencies, bureaus, offices down to the division level and to the regional and provincial offices as practicable as possible, government owned and controlled corporations, local government units, other public instrumentalities, universities, colleges and other schools, and universal access to the general public. The RPWEB network shall serve as initial platform of the government information infrastructure (GII) to facilitate the electronic online transmission and conveyance of government services to evolve and improve by better technologies or kinds and electronic online wide area networks utilizing, but not limited to, fiber optic, satellite, wireless and other broadband telecommunication mediums or modes. To facilitate the rapid development of the GII, the Department of Transportation and Communications, National Telecommunications Commissions and the National Computer Center are hereby directed to aggressively promote and implement a policy environment and regulatory framework that shall lead to the substantial reduction of costs of including, but not ; limited to, lease lines, land, satellite and dial-up telephone access, cheap broadband and wireless accessibility by government departments, agencies, bureaus, offices, government owned and controlled corporations, local government units, other public instrumentalities and the general public, to include the establishment of a government website portal and a domestic internal exchange system to facilitate strategic access to government and
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amongst agencies thereof and the general public and for the speedier flow of locally generated internal traffic within the Philippines. The physical infrastructure of cable and wireless system for cable TV and broadcast excluding programming content and the management thereof shall be considered as within the activity of telecommunications for the purpose of electronic commerce and to maximize the convergence of ICT in the installation of the GII. Section 29. Authority of the Department of Trade and Industry and Participating Entities. – The Department of Trade and Industry (DTI) shall direct supervise the promotion and development of electronic commerce in the country with relevant government agencies, without prejudice to the provision of Republic Act 7653 (Charter of Bangko Sentral ng Pilipinas) and Republic Act No. 337, (General Banking Act) as amended. Among others, the DTI is empowered to promulgate rules and regulations, as well as provide quality standards or issue certifications, as the case may be, and perform such other function as may be necessary for the Implementation of this Act in the area of electronic commerce to include, but not limit to, the installation of an online public information and quality and price monitoring system for goods and services aimed in protecting the interests of the consuming public availing of the advantages of this Act. PART V FINAL PROVISIONS Section 30. Extent of Liability of a Service Provider. – Except as otherwise provided in this Section, no person or party shall be subject to any civil or criminal liability in respect of the electronic data message or electronic document for which the person or party acting as a service provider as defined in Section 5, merely provides access if such liability is founded on – (a) The obligations and liabilities of the parties under the electronic data message or electronic document; (b) The Making, publication, dissemination or distribution of such material or any statement made in such material, including possible infringement of any right subsisting in or in relation to such material. Provided,That i. The service provider does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of each material is unlawful or infringes any rights subsisting in or in relation to such material; ii The service provider does not knowingly receive a financial benefit directly attributable to the unlawful or infringing activity; and iii. The service provider does not directly commit any infringement or other unlawful act and does not endues cause another person or party to commit any infringement or other unlawful act and/or does not benefit financially from the infringing activity or unlawful act or another person or party; Provider, further, That nothing in this Section shall affect – (a) Any obligation founded on contract; (b) The obligation of a service provider as such under a licensing or other regulatory regime established under written law; (c) Any obligation imposed under any written law; (d) The civil liability of any party to the extent that such liability forms the basis for injunctive relief issued by a court under any law requiring that the service provider take or refrain from action necessary to remove, block or deny access to any material, or to preserve evidence of a violation of law. Section 31. Lawful Access. – Access to an electronic file, or an electronic signature of an electronic data message or electronic document shall only be authorized and enforced in favor of the individual or entity having a legal right to the possession or the use of plaintext, electronic signature or file or solely for the authorized purposes. The electronic key for identity or integrity shall not be made available to any person or party without the consent of the individual or entity in lawful possession of that electronic key; Section 32. Obligation of Confidentiality. – Except for the purposes authorized under this Act, any person who obtained access to any electronic key, electronic data message or electronic document, book, register, correspondence, information, or other material pursuant to any powers conferred under this Act, shall not convey to or share the same with any other person. Section 33. Penalties. - The following Acts, shall be penalized by fine and/or imprisonment, as follows:
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(a) Hacking or crackling with refers to unauthorized access into or interference in a computer system/server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communications system, including the introduction of computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years; (b) Piracy or the unauthorized copying, reproduction, dissemination, or distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recording or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years; (c) Violations of the Consumer Act of Republic Act No. 7394 and other relevant to pertinent laws through transaction covered by or using electronic data messages or electronic documents, shall be penalized with the same penalties as provided in those laws; (d) Other violations of the provisions of this Act, shall be penalized with a maximum penalty of One million pesos (P1,000,000.00) or six (6) years imprisonment. Section 34. Implementing Rules and Regulations. – The DTI, Department of Budget and Management and the Bangko Sentral ng Pilipinas are hereby empowered to enforced the provisions of this Act and issue implementing rules and regulations necessary, in coordination with the Department of Transportation and Communications, National Computer Center, National information Technology Council, Commission on Audit, other concerned agencies and the private sector, to implement this Act within sixty (60) days after its approval. Failure to Issue rules and regulations shall not in any manner affect the executory nature of the provisions of this Act. Section 35. Oversight Committee. – There shall be Congressional Oversight Committee composed of the Committees and Trade and Industry/Commerce, Science and Technology, Finance and Appropriations of both the Senate and House of Representatives, which shall meet at least every quarter of the first two years and every semester for the third year after the approval of this Act to oversee its implementation. The DTI, DBM, Bangko Sentral ng Pilipinas, and other government agencies as may be determined by the Congressional Committee shall provide a quarterly performance report of their actions taking in the implementation of this Act for the first three (3) years. Section 36. Appropriations. - The amount necessary to carry out the provisions of Sections 27 and 28 of this Act shall be charged against any available funds and/or savings under the General Appropriations Act of 2000 in the first year of effectivity of this Act. Thereafter, the funds needed for the continued implementation shall be included in the annual General Appropriations Act. Section 37. Statutory Interpretation. – Unless otherwise expressly provided for, the interpretation of this Act shall give due regard to its international origin and the need to promote uniformity in its application and the observance of good faith in international trade relations. The generally accepted principles of international law and convention and electronic commerce shall likewise be considered. Section 38. Variation of Agreement. – As between parties involved in generating, sending, receiving, storing or otherwise processing electronic data message or electronic document, any provisions of this Act may be varied by agreement between and among them. Section 39. Reciprocity. – All benefits, privileges, advantages or statutory rules established under this Act, including those involving practice of profession, shall be enjoyed only by parties whose country origin grants the same benefits and privileges or advantages to Filipino citizens. Section 40. Separability Clause. – The provisions of this Act are hereby declared separable and in the event of any such provision is declared unconstitutional the other provisions to remain in the force and effect. Section 41. Repealing Clause. – All other laws, decrees, rules and regulations or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended or modified accordingly. Section 42. Effectivity. – This Act shall take effect immediately after its publication in the Official Gazette or in at least two (2) newspapers of general circulation.
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REPUBLIC OF THE PHILIPPINES CONGRESS OF THE PHILIPPINES METRO MANILA SECOND REGULAR SESSION Begun and held in Metro Manila, on Monday, the twenty-second day of July, nineteen hundred and ninety-six [REPUBLIC ACT NO. 8203] AN ACT OF PROHIBITING COUNTERFEIT DRUGS, PROVIDING PENALTIES FOR VIOLATIONS AND APPROPRIATING FUNDS THEREFOR Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Title – This Act shall be known as the "Special Law on Counterfeit Drugs." SECTION 2. Declaration of Policy -It is hereby the policy of the State to protect and promote the right to health of the people and instill health consciousness among them as provided in Section 15 Article 11 of the Constitution. It is also further declared the policy of the State that in order to safeguard the health of the people, the State shall provide for their protection against counterfeit drugs. SECTION 3. Definition of Terms – For purposes of this Act, the terms: (a) Drugs shall refer to any chemical compound or biological substance, other than food, intended for use in the treatment, prevention or diagnosis of disease in man or animals, including but not limited to: (1) any article recognized in the official United States Pharmacopoeia – National Formulary (USP-NF), official Homeopathic Pharmacopoeia of the United States, Philippines National Drug Formulary, British Pharmacopoeia, any National Compendium or any supplement to any of them; (2) any article intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals; (3)any article other than food intended to affect the structure or any function of the body of man or animals; (4)any article intended for use as a component of any articles specified in clauses (1), (2), (3) not including devices or their components, parts, or accessories; and (5) herbal and/or traditional drugs which are articles of plant or animal origin used in folk medicine which are: (a) recognized in the Philippine National Drug Formulary; (b) intended for use in the treatment or cure or mitigation of disease symptoms, injury or body defect in man; (c) other than food, intended to affect the structure or any function of the body of man; (d) in finished or ready-to-use dosage form; and (e) intended for use as a component of any of the articles specified in clauses (a), (b), (c) and (d). (b) Counterfeit drug/medicine refers to medicinal products with the correct ingredients but not in the amounts as provided hereunder, wrong ingredients, without active ingredients, with sufficient quantity of active ingredient, which results in the reduction of the drug’s safety, efficacy, quality, strength or purity. It is a drug which is deliberately and fraudulently mislabeled with respect to identity and/or source or with fake packaging, and can apply to both branded and generic products. It shall also refer to: 1) the drug itself or the container or labeling thereof or any part of such drug, container or labeling bearing without authorization the trademark, trade name or other identification mark or imprint or any likeness to that which is owned or registered in the Bureau of Patent, Trademark and Technology Transfer (BPTTT) in the name of another natural or juridical person; 2) a drug product refilled in containers by unauthorized persons if the legitimate labels or marks are used; 3) an unregistered imported drug product, except drugs brought in the country for personal use as confirmed and justified by accompanying medical records; 4) a drug which contains no amount of or a different active ingredient or less than eighty percent (80%) of the active ingredient it purports to possess as distinguished from an adulterated drug including reduction or loss or efficacy due to expiration. (c) Brokering shall refer to any act of facilitating the disposal or sale or counterfeit drugs, including acts of agency. (d) Bureau shall refer to the Bureau of Food and Drugs (BFAD) of the Department of Health (DOH). (e) Department shall refer to the Department of Health (f) Business establishment shall refer to any entity, whether a single proprietorship, partnership, or corporation engaged in or doing business in the Philippines. (g) Owner shall refer to a person or group of persons who is the registered owner of a license to operate a business or business undertaking in the Philippines or the branch manager or operator, licensee, franchisee, or any person acting on behalf of he corporate entity. (h) Residence shall refer to a private dwelling or abode where a person lives, either as owner or lessee, or usurfructuary including, for purposes of this Act, its yard, garage, storage rooms or premises. SECTION 4 Prohibited Acts. – The following acts are declared unlawful and therefore prohibited;
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a) The manufacture, sale, or offering for sale, donation, distribution, trafficking, brokering, exportation, or importation or possession of counterfeit drugs as defined in Section 3 hereof not otherwise covered by Republic Act No. 3720, as amended. The presence or availability of such counterfeit drugs within the premises of any entity engaged in the sale, manufacture or distribution of drugs and/or pharmaceutical products or in a private residence, or in public or private vehicle, or in the premises not covered by a valid license to operate from the Bureau, shall constitute a prima facie evidence of violation of this Act: Provided, however, That this presumption shall not apply to the legitimate owners of trademarks, trade names or other identifying marks, or the legitimate or authorized representatives or agents of such owners who have in their possession counterfeit drugs which bear the trademarks, trade names or marks if they can show the sales invoices or official receipts evidencing their purchase from a drugstore, manufacturer or distributor suspected by them of dealing in counterfeit drugs involving the trademarks, trade names and other similar identifying marks registered in their names: Provided, further, That such counterfeit products shall be reported and immediately turned over to the Bureau: Provided, finally, That compliance with the preceding provision shall be made within a reasonable period from the date of purchase of such counterfeit drugs as indicated in the sales invoice, official receipt, or other similar documents abovementioned to the time the counterfeit drugs are reported and turned over to the Bureau; b) Possession of any such counterfeit drugs. However, any person found in possession of counterfeit drugs, in violation of this subsection, shall be exempted from liability under the provisions of this Act after: 1) presentation of sales invoices, official receipts or other legally acceptable documents evidencing his purchase thereof from a drugstore, distributor, manufacturer, hospital pharmacy or dispensary; or any other person or place duly licensed to sell and/or dispense drugs or medicines and indicating therein the batch and lot numbers, as well as the expiry dates of such drugs; or 2) presentation of certificates and other documents evidencing the importation or exportation of the counterfeit drugs found in his possession as required by existing laws, including those documents required in the preceding paragraph covering the commercial transactions involving counterfeit drugs. In both cases, the subject counterfeit drugs must not on their face appear to be as such, or do not bear any marking or any patently unusual characteristic sufficient to arouse the suspicion of a reasonable and prudent person that such drugs are counterfeit. Furthermore, the amount or volume of counterfeit drugs held is such that it does not negate or is inconsistent with the averment that the same are for personal use, notwithstanding the presentation by the possessor of medical records and other similar documents accompanying and justifying the use of such drugs;
c) Forging, counterfeiting, simulating or falsely representing, or without proper authority, using any mark, stamp, tag, label or other identification mark or device authorized or required by Republic Act No. 3720, as amended, and/or the regulations promulgated under this Act; d) Photocopying, duplicating, altering, printing, transferring, obliterating or removing the approved label or any part thereof, lawfully belonging to another person, for the purpose of using such label or a part thereof on any counterfeit drug: Provided, That if the person who committed any of the acts enumerated in this paragraph and the person who used the labels produced thereby are not one and the same person and the former had knowledge of the purpose for which the labels are intended, the former shall also be liable under this Act notwithstanding the failure of the latter to achieve the intended purposes; and e) Making, selling, or concealing any punch, dye, plate or any other equipment or instrument designed to print, imprint or reproduce the trademark, trade name or other identifying mark of another registered producer or any likeness thereof, upon any drug product or device or its container or label without authority from the legitimate owners of the trademark or trade name. SECTION 5. Parties Liable -The following persons shall be liable for violation(s) of this Act: a) the manufacturer, exporter or importer of the counterfeit drugs and their agents: Provided, That the agents shall be liable only upon proof of actual or constructive knowledge that the drugs are counterfeit; b) the seller, distributor, trafficker, broker or donor and their agents, upon proof of actual or constructive knowledge that the drugs sold, distributed, offered or donated are counterfeit drugs; c) the possessor of counterfeit drugs as provided in Section 4 (b) hereof; d) the manager, operator or lessee of the laboratory or laboratory facilities used in the manufacture of counterfeit drugs; e) the owner, proprietor, administrator or manager of the drugstore, hospital pharmacy or dispensary, laboratory or other outlets or premises where the counterfeit drug is found who induces, causes or allows the commission of any act herein prohibited; f) the registered pharmacist of the outlet where the counterfeit drug is sold or found, who sells or dispenses such drug to a third party and who has actual or constructive knowledge that said drug is counterfeit; and g) should the offense be committed by a juridical person the president, general manager, the managing partner, chief operating officer or the person who directly induces, causes or knowingly allows the commission of the offense shall be penalized.
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SECTION 6. Administrative Proceedings.-The Bureau is hereby further authorized to undertake the following administrative actions: a) upon verified information on the existence of suspected counterfeit drugs in the possession of any manufacturer, seller or distributor, the duly authorized officers of the bureau or any officer deputized by the Bureau for the purpose shall segregate, seal and after having obtained a valid search warrant from a competent court, seize such counterfeit drugs and take them into custody: Provided, That in case the suspected counterfeit drugs are found in a private residence, as defined in Section 3 of this Act or in other premises not covered by a valid license to operate issued by the Bureau, the duly authorized officer of the Bureau or deputized officer thereof shall secure a search warrant for the purpose of seizing and taking into custody such suspected counterfeit drugs; b) if, after the appropriate examination of the samples by the Bureau, the seized drugs are determined or found to be counterfeit, the Bureau shall, within (15) days from their seizure, issue an order directing the preventive closure of the business establishment for a period not exceeding thirty (30) days. Thereafter, administrative proceedings shall be initiated by the Bureau against the parties concerned where they shall have the opportunity to be heard and present evidence on their behalf; and c) to ensure the effective enforcement of the foregoing, the Bureau may enlist the assistance of the national or local law enforcement agencies. SECTION 7. Administrative Sanctions – Upon finding that the drugs examined are counterfeit and the determination of the parties liable thereof, the Bureau shall impose any or all of the following sanctions: a) permanent closure of the establishment concerned and the revocation of its license to business; b) a fine of not less than One hundred thousand pesos (P100,000) but not more than Five hundred thousand pesos (P500,000); c) upon order of the Court, forfeiture, confiscation, and destruction of products found to be counterfeited and the equipment, instruments, and other articles used in violation of this Act; d) filing of an appropriate proceedings against the registered pharmacist with the Professional Regulations Commission for cancellation of professional license; e) filing of criminal charges against the violator (s), which can be instituted independently from the administrative case: Provided, That the dismissal of the criminal case shall not lift the closure order, except when it is a dismissal on the merits or for lack of basis: Provided, further, That the withdrawal of the private criminal complaint shall not be a ground for the dismissal of the administrative proceedings; and f) permanent disqualification of the person concerned, whether natural or juridical, from owning or operating an establishment engaged in any business activity under the supervision of the Bureau. SECTION 8. Penalties. – The commission of any of the acts prohibited under Sections 4 and 6 of this Act shall be punished by: a) imprisonment of not less than six (6) months and one (1) day; but not more than six (6) years for more possession of counterfeit drugs as provided for in Section 4(b) hereof; or b) imprisonment of six (6) years and one (1) day, but not more than ten (10) years or a fine of not less than One hundred thousand pesos (P100,000) but not more than Five hundred thousand pesos (P500,000) or both such imprisonment and fine at the discretion of the court in any other case mentioned in Section 4 hereof; or c) imprisonment of not less than six (6) months and one (1) day, but not more than two (2) years and four (4) months if the counterfeit drug is intended for animals; or d) imprisonment of not less than six (6) years and one (1) day but not more than ten (10) years for any manufacturer, seller or distributor who shall conceal, substitute, dispose or destroy any drug as may have been segregated and sealed by the Bureau or who shall break, alter or tamper any mark or seal used by the Bureau to identify those segregated drugs as provided for under Section 6(a) of this Act. Any other person who breaks, alters or tampers any mark or seal used by the Bureau to identify the segregated drugs shall suffer the penalty of not less than six (6) months and one (1) day, but not more than six (6) years imprisonment; or e) if, as a result of the use of the drug found to be counterfeit, the illness sought to be cured is aggravated or physical injury or suffering results therefrom, a punishment of imprisonment from twelve (12 years to fifteen (15) years and a fine ranging from One hundred thousand pesos (P100,000) to Five hundred thousand pesos (P500,000) shall be meted out; or f) should a counterfeit drug be the proximate cause of death of a victim, who unknowingly purchased and took a counterfeit drug, the penalty of life imprisonment and a fine of Five hundred thousand pesos (P500,000) to Five million pesos (P5,000,000) shall be imposed. In case any act prohibited in Section 4 hereof is also punishable under other laws, the offender shall, if warranted by the evidence, be prosecuted under the law prescribing the highest penalty. SECTION 9. Appropriations – The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act for the year following its enactment and every year thereafter.
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SECTION 10. Implementation – The Bureau of Food and Drugs of the Department of Health is hereby authorized to administer and supervise the implementation of this Act. SECTION 11. Implementing Rules and Regulations. – Within ninety (90) days from the approval of this Act, the Bureau of Food and Drugs, in consultation with the Department of Health, shall promulgate the rules and regulations implementing the provisions of this Act. The implementing rules and regulations issued pursuant to this section shall take effect thirty (30) days after its publication in two (2) national newspapers of general circulation. SECTION 12. Separability Clause – If, for any reason, any portion or provision of this Act is subsequently declared unconstitutional or invalid, such declaration shall not nullify the other portions or provisions hereof. SECTION 13. Repealing Clause. – all laws, decrees, executive or administrative orders, rules or regulations inconsistent with the provisions of this Act are hereby or modified accordingly. SECTION 14. Effectivity. – This Act shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation.
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Republic of the Philippines CONGRESS OF THE PHILIPPINES Metro Manila Fourteenth Congress Third Regular Session
Begun and held in Metro Manila, on Monday, the twenty-seventh day of July, two thousand nine. REPUBLIC ACT NO. 10088 AN ACT TO PROHIBIT AND PENALIZE THE UNAUTHORIZED USE, POSSESSION AND/OR CONTROL OF AUDIOVISUAL RECORDING DEVICES FOR THE UNAUTHORIZED RECORDING OF CINEMATOGRAPHIC FILMS AND OTHER AUDIOVISUAL WORKS AND/OR THEIR SOUNDTRACKS IN AN EXHIBITION FACILITY, PROVIDING PENALTIES THEREFOR AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Short Title. - This Act shall be known as the "Anti-Camcording Act of 2010". Section 2. Definition of Terms. - For purposes of this Act: (a)"Audiovisual work" means a work that consists of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. (b)"Audiovisual recording device" means a digital or analog photographic or video camera, or any other technology or device capable of enabling the recording or transmission of a cinematographic film or other audiovisual work, or any part thereof, regardless of whether audiovisual recording is the sole or primary purpose of the device. (c)"Authorized person" means the members of the Philippine National Police (PNP) and the National Bureau of Investigation (NBI) and/or any other person duly authorized by the same to exercise powers conferred upon by this Act. (d)"Camcording" means any of the unlawful acts enumerated under Section 3 of this Act. (e)"Cinematographic film" means any audiovisual work consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any. (f)"Copy" means any article or thing in which the visual images or sounds comprised in any cinematographic film or audiovisual work are embodied, and includes the making of a copy which is in electronic format or transient or incidental to some other use thereof. (g)"Copyright owner" means any one who has the exclusive rights comprised in a copyright as provided under Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines and related international treaties, conventions or agreements to which the Republic of the Philippines is a party. (h)"Exclusive licensee" means a licensee who is authorized in writing and who, on behalf of the owner or prospective owner of copyright, to the exclusion of all other persons, is authorized to do an act within the Philippines that, by virtue of this Act, the owner of the copyright would, but for the license, have the exclusive right to do or to perform. (i)"Exhibition facility" means any cinema, film theater, screening room, projection room or other venue that is used for the public exhibition of a cinematographic film or audiovisual work, whether or not a fee is chargeable. (j)"Operator of an exhibition facility" means any person or entity who holds or is required to hold a license by the Securities and Exchange Commission CSEC, for companies and partnerships), the Department of Trade and Industry ('DTI', for sole proprietorships), the Movie and Television Review and Classification Board (MTRCB) or any and all other relevant government offices that have, or will have jurisdiction over exhibition facilities to operate the exhibition facility. (k)"Relevant authority" means the officers, members and responsible personnel of law enforcement agencies such as the PNP and their adjuncts and the NBI. (l)'Transmit" means to convey by any means, whether over a path or a combination of paths, provided by a material substance or by wireless means or otherwise, and whether or not in response to a request made.
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Section 3. Acts Constituting Unauthorized Possession, Use and/or Control of Audiovisual Recording Devices. - It shall be unlawful for any person, at a time when copyright subsists in a cinematographic film or other audiovisual work or its soundtrack and without the authorization of the copyright owner or exclusive licensee thereof, to: (a)use or attempt to use an audiovisual recording device to transmit or make a copy of any performance in an exhibition facility of such cinematographic film or other audiovisual work or its soundtrack, or any part thereof; (b)have in his/her possession, an audiovisual recording device in an exhibition facility, with the intent of using or attempts to use the audiovisual recording device to transmit or make a copy of any performance in the exhibition facility of such cinematographic film or other audiovisual work or its soundtrack, or any part thereof; or (c)aid, abet or connive in the commission of the acts prohibited under this section. Section 4. Penalties. - A person who will be found guilty of violating the provisions of Section 3 shall be subject to a fine of Fifty thousand pesos (Php50,000.00) but not exceeding Seven hundred fifty thousand pesos (Php750,000.00) and imprisonment of six (6) months and one (1) day to six (6) years and one (1) day. If the purpose of the commission of the abovementioned acts is the sale, rental or other commercial distribution of a copy of the cinematographic or audiovisual work or its soundtrack, or any part thereof, the penalty shall be imposed in the maximum. If the offender is an alien, said person shall immediately be deported after payment of the fine and after serving his/her sentence. He/She shall thereafter be refused entry into the Philippines. If the offender is a government official or employee, the penalty shall include perpetual disqualification from public office and forfeiture of his/her right to vote and participate in any public election for a period of five (5) years. Section 5. Presumptions as to the Subsistence of Copyright and/or Ownership of Copyright. - For purposes of Section 3, copyright shall be presumed to subsist in the subject cinematographic film or other audiovisual work or its soundtrack if the accused does not put in issue the question as to whether copyright subsists therein. However: (a)where the accused puts such question in issue but does not satisfy the court that he/she does so in good faith, the presumption as to the subsistence of copyright herein shall apply, notwithstanding that the accused puts that question in issue; (b)where the name of a person appears on copies of the subject cinematographic film or other audiovisual work or its soundtrack as made available to the public in such a way as to imply that the person was the maker thereof and, in the case of a person other than a body corporate, that name was his/her true name or a name by which he/she was commonly known, that person shall be presumed to be the maker thereof and the copyright owner thereof, unless the contrary is established; and/or (c)where the accused puts in issue the question of whether copyright subsists in the subject cinematographic film or other audiovisual work or its soundtrack, or the ownership of the copyright therein, an affidavit made in behalf of the copyright owner in which he/she makes assertions of facts relevant to showing that: (1) copyright subsists in the work or other subject matter; and/or, as the case may be, (2) he/she is the owner of the copyright, shall be admitted in evidence and shall be prima facie proof of the matters stated therein until the contrary is proved, unless the court requires that oral/testimonial evidence be adduced to prove those matters. Section 6. No Defense on Account of Use for Private or Domestic Purposes. - It shall not be a defense that the transmission or making of the copy of the cinematographic film or other audiovisual work or its soundtrack, or any part thereof, was for private or domestic purposes or in connection with a fair use deal. Section 7. Requirement for Posting of Notices in an Exhibition Facility on the Prohibition Against the Bringing into Said Exhibition Facility of Audiovisual Recording Devices and the Like. - All exhibition facilities, cinemas or theaters shall be required to conspicuously post in at least two (2) areas in the exhibition facility including, but not limited to, the areas where tickets are sold and the entrances of the exhibition facilities, notices or signages warning against the bringing of audiovisual recording devices into the cinematographic film/audiovisual screening/exhibition area, with a reservation that the management/operator of the exhibition facility will take into preventive and temporary custody such audiovisual recording device/s until the film/movie theater patron leaves the screening/exhibition area/facility. Failure of the management/operator of the exhibition facility to comply with the foregoing requirement will subject said management/operator liable to pay a fine of Fifty thousand pesos (Php50,000.00). Nothing in this Act shall prevent the management from performing such other precautionary measures so as to prevent the commission of the acts punishable herein. Section 8. Powers of Authorized Persons to Enter an Exhibition Facility and Search the Same. - An authorized person, without a warrant and without payment of any admission fee or other charge, may enter and search any
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exhibition facility if the authorized person has reasonable ground to believe that any violation of this Act has been or is being committed and, due to the delay necessary to obtain a warrant could result in the loss or destruction of evidence, or for any other reason it would not be reasonably practicable to obtain a warrant. Section 9. Other Powers of Authorized Persons. - An authorized person who has reasonable ground to believe that a violation under this Act has been or is being committed may: (a)search any person if the person subject of the search has in his/her actual possession, any audiovisual recording device, in respect of which an offense under this Act has been or is being committed; (b)seize, remove or detain any audiovisual recording device or other object which appears to contain, or likely to contain evidence of an offense committed under this Act; (c)use reasonable force to remove any person or object obstructing the authorized person in the exercise of any power conferred upon him/her by this Act; (d)detain any person, within a reasonable time not exceeding eighteen (18) hours, found in any place which the authorized person is empowered to enter and search if, after inquiry made, said authorized person has reasonable ground to believe that the person subject of the search is connected with the subject matter of the search and it is considered necessary to detain the person subject of the search to be able to adequately perform the search; and (e)require the operator of an exhibition facility or any other person who appears to be at the time responsible for the control or management of the exhibition facility to give information or render assistance that may be necessary to enable the authorized person to carry out the functions under this Act. Section 10. Forfeiture and Disposal of Unauthorized Copy of Cinematographic Film or Other Audiovisual Work /Audiovisual Recording Devices Used in the Commission of the Acts Penalized Under this Act. - The court before which a person charged with an offense in violation/contravention of this Act, whether or not said person charged is convicted of the offense, may order that any copy of a cinematographic film or other audiovisual work in which copyright subsists, or parts thereof which appears to the court to be an unauthorized copy, and any audiovisual recording device or other equipment in the possession of the alleged offender or the court, be destroyed or delivered to the owner or the exclusive licensee of the copyright owner concerned or otherwise dealt with in such a manner as the court deems fit. In the event that the court retains representative samples of the unauthorized copy of a cinematographic film or other audiovisual work, or audiovisual recording devices or other equipment for evidentiary purposes in the prosecution of the offense for which an accused is charged, the retained samples shall remain in custodia legisuntil the final resolution of the court proceedings thereon. Section 11. Enforcement. - The PNP, in coordination with the NBI, the Optical Media Board (OMB), operators of the cinemas, theaters or exhibition facilities and owners of the cinematographic films or audiovisual works and other soundtracks, shall enforce the provisions of this Act. The PNP may deputize, for a defined period, the heads or personnel of such agencies and instrumentalities of government or private sector representatives or stakeholders of rights over cinematographic films/audiovisual works and their soundtracks, to perform, the enforcement functions required under this Act. Section 12. Separability Clause. - If any provision of this Act is declared invalid, the other parts or provisions hereof not affected thereby shall remain and continue to be in full force and effect. Section 13. Repealing Clause. - All laws, decrees, ordinances or rules and regulations which are inconsistent with or contrary to the provisions of this Act are hereby amended or repealed. Section 14. Effectivity. - This Act shall take effect fifteen (15) days after its complete publication in at least two (2) newspapers of national circulation.
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