RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/323
21 November 2001
(01-5898)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Zimbabwe to questions posed by Canada and Switzerland
By means of communications from the Permanent Mission of Zimbabwe dated 16 November
2001, the Secretariat has received the following responses to questions posed by Canada andSwitzerland, as circulated in documents IP/C/W/314 and 315, respectively.
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CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and
throughout) have been implemented.
Article 41 : General Obligations
Although in terms of Article 41.5 of the TRIPS Agreement there is no obligation on Member
States to put in place a distinct judicial machinery for the enforcement of a intellectual property rights,
Zimbabwe viewed it as both desirable and necessary to put in place the Intellectual Property Tribunal
which is a specialised court exclusively adjudicating over all civil matters pertaining to the
enforcement of intellectual properly rights as provided for under the:
• Industrial Designs Act [Chapter 26:02]
• Patents Act [Chapter 26:03]
• Trade Marks Act [Chapter 26:04]
• Copyright and Neighbouring Rights Act [Chapter 26:05]
• Geographical Indications Act [Chapter 26:6]
• Integrated Circuit Layout-Designs Act [Chapter 26:07]
In terms of Sections 7 and 8 of the Intellectual Property Tribunal Act, the Tribunal shall
exercise its jurisdiction in all Civil matters arising from the above enactments and, in the exercise of
its jurisdiction, it shall have the same  powers as the High Court to make  orders:
• "requiring any party to give security for costs;
• for the purpose of security, the attendance of any person before it;IP/C/W/323
Page 2
• for making discovery and production of any documents;
• for the enforcement of its orders, whether by way of execution attachment or
otherwise."1
It is important to note that litigants are not restricted to the use solely of the intellectual
property Tribunal for the enforcement of their intellectual property rights.  They can still elect to refer
their disputes to a Magistrate Court with competen t jurisdiction to entertain the matter, or the High
Court as Courts of first instance.  This is deliberately meant to cater for the entire spectrum of litigants
whose sophistication in legal matters differ.  Further, it makes the enforcement machinery easily
accessible to litigants, hence, the speedy resolution of disputes.
However, the Intellectual Property Tribunal is expressly precluded from exercising
jurisdiction over criminal matters arising from the infringement of intellectual property rights.
Article 42 – Fair and Equitable Procedures
Section 11 of the Intellectual Property Tribunal Act provides for the representation of parties
without them necessarily appearing in person.  This removes the overly burdensome requirement of
mandatory personal appearances of litigants.
Section 12, which provides for the rules of procedure, is designed to put in place equitable
rules which would allow parties to fully present thei r case before the tribunal without suffering any
undue prejudice.
Article 43 - Evidence
Section 13 of the Intellectual Property Tribunal Act which, inter alia , gives the Tribunal the
power to "accept evidence by affidavit or take oral evidence and allow any witness to be
cross-examined on his affidavit or oral evidence" is a furtherance of fair and equitable procedures.  Asread with Section 12 of the Act, these provisions are, in essence, a relaxation of the formal and strict
rules of procedure observed in the High Court.
Article 44 - Injunctions
Please note that this provision is not obligatory on Member states.  However, apart from the
Customs and Exercise Act [Chapter 23:03] which empowers customs officials to seize counterfeit or
pirated goods, Section 66 of the Trade Marks Act [Chapter 26:04] ,as amended, and Section 60 of the
Copyright and Neighbouring Rights Act [Chapter 26: 05], also empower Customs officials to seize
pirated goods.
The ordinary Courts have power to order such seizure as well.
Article 45 - Damages
This protection is provided for under:
• Section 46A of the Industrial Designs Amendment Bill (now an
Act of Parliament but awaiting Presidential assent)
• Section 40 of the integrated Circuit Layout-Designs Act [Chapter 26:07] (now an Act
of Parliament but also awaiting Presidential assent)
                                                     
1 Section 8(2) of the Intellectual Property Tribunal Act.IP/C/W/323
Page 3
• The Patents Act [Chapter 26.03] as amended by the Patents Amendment Bill, 2001
which is presently before Parliament for debate
• Section 11 of the Geographical Indications Act [Chapter 26:06]
• Part V of the Copyright and Neighbouring Rights Act [Chapter 26:05]
• Section 9C of the Trade Marks Amendment Act No. 10 of 2001
Article 46 – Other Remedies
These remedies are already part of our civil practice and procedure in the High Court.  These
include the recognition of Anton Pillar orders as competent remedies awarded to the plaintiff whoserights have been infringed and there exits a well founded apprehension that the goods or evidence in
the possession of the defendant may be destroyed or made inaccessible to the plaintiff in the
prosecution of his civil suit.
• Section 41 of Integrated Circuit Layout-Designs Act
• Section 57 of Copyright and Neighbouring Rights Act
• Section14 of the Geogra phical Indications Act
• Section 46B of Industrial Designs Amendment Act
• Section 48A of Patents Amendment Act
• Section 9D of Trade Marks Amendment Act
Article 47 – Right of Information
This provision, though not specifically provided for in the various intellectual property
enactments, our common law of civil procedure and practice already recognises this legal innovation.
Article 48 – Indemnification of Defendant
These are provided for under:
• Section 15 of the Geographical Indications Act [Chapter 26:06]
• Section 42 of Integrated Circuit Layout-Designs Act [Chapter 26:07]
• Proviso to Section 14 of the Patents Amendment Bill 2001
• Section 86 of the Trade Marks Art as amended by the Trade Marks Amendment Act
To the extent that the Tribunal has the powers to apply the same rules of civil procedure as
the High Court towards the realisation the above remedy by to a deserving defendant.  Section 12(2)
of the Intellectual Property Tribunal Act.IP/C/W/323
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Article 49 – Administrative Procedures
Needs no precise response in so far as our intellectual property legislation, in terms of
enforcement of intellectual property rights, substantially complies with the TRIPS Agreement
requirements.
Article 50
Concerns Anton Pillar Orders as alluded to in Article 46 above.  Anton Pillar Orders are
recognized procedural remedies under our general law, and as such shall be applicable to the
enforcement of intellectual property rights.  Section 12(2) empowers the Tribunal to employ/apply the
rules relating to practice and procedure in the High Court in civil matters where appropriate. Theappropriate provisions referred to in Article 46 above expressly so empower the Tribunal.
Articles 51-60 – Special Requirements Related to Border Measures
This is provided for in the amendment to se ction 86 of the Trade Marks Act.  (Amendment
clause number 17 of the Trade Marks Amendment Act).
• Section 60 of the Copyright and Neighbouring Rights Act
• Section of the Customs and Exercise Act
2. What protection does your Copyright legislation  afford to "foreign works" ?
Part II of the Copyright and Neighbouring Rights  Act [Chapter 26:05] vests copyright in the
author by virtue of his nationality, domicile or residence in Zimbabwe at the material time of the
original works.  Thus, for an author of works qualify ing / eligible for copyright, he either has to be at
the material time:
(a) a citizen of Zimbabwe or a designated country; or
(b) domiciled or ordinarily resident in Zimbabwe or a designated country, or
(c) in the case of a body corporate, incorporated under the law of Zimbabwe or a
designated country.2
In conferring copyright on the above three categories and in keeping with the TRIPS
Agreement's provisions, and the Berne Convention to which Zimbabwe is a Contracting Party, the
principles of national treatment and most-favoured-nation treatment are fully observed.
                                                     
2 Section 11(1) of the Copyright and Neighbouring Rights Act.IP/C/W/323
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SWITZERLAND
A. PATENTS
1. Does your legislation grant patent protection for inventions relating to products and
processes in all fields of technology?  Are there any exceptions?  If so, please explain what theseexceptions are and how they comply with Article 27 of the TRIPS Agreement.
Yes, our patent law grants patent protection for inventions relating to products and processes
in all fields of technology, subject only to the follo wing exceptions as introduced by section 2A of the
Patents Amendment Bill, 2001 (pending before Parliament for debate) and herein after referred to asthe "Patents Amendment Act"):
(a) where the patent sought is in relation to diagnostic, therapeutic or
surgical methods for the treatment of human beings;
(b) where the patent sought is in relation to plants and animals, other than micro-
organisms;
(c) where the patent sought is for essentially biological processes for the
production of plants or animals, othe r than micro-biological processes.
Section 13(1) of the Patents Act, as amended by the Patents Amendment Act,
provides that a patent may also not be granted where the application:
(a) is frivolous; on the ground that it claims as an invention anything obviously contrary
to well established natural laws; or
(b) the use of the invention in respect of which the application is made would be
generally expected to either: -
(i) endanger public order or public safety; or
(ii) encourage offensive, immoral or anti-social behaviour; or
(iii) endanger human, animal or plant life or health; or
(iv) promote serious prejudice to the environment.
This legal innovation is quite in keeping with the requirements of Article 27.1, 27.2 and 27.3
of the TRIPS Agreement.
2. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the
TRIPS Agreement, consider impor tation as "working" a patent (and therefore preclude compulsory
licensing, if a product is being imported)?
Section 24(4) of the Patents Act is amended by clause 6 of the Patents Amendment Act to the
effect that importation is considered as "working" a patent in line with the requirements of
Article 27.1 as read with Article 31 of the TRIPS Agreement.  Implied in this legal innovation is thatthe recognition of importation as a "working" patent precludes compulsory licensing for as long as the
patent, like any other patent, is being exploited for the benefit of Zimbabwe's market, social needs and
expectations.IP/C/W/323
Page 6
3. Does your legislation make the granting of a compulsory licence subject to all the conditions
enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant provisions of law.
Sections 31(1) of the Patents Act [Chapter 26:03] as amended by clauses 9, 10 and 11 of the
Patents Amendment Act, provides for compulsory licensing in case of abuse or insufficient use ofpatents right, so that:
"Subject to subsection (13) any person interest ed [in the patent, and] who can show that he
has been unable to obtain a licence under a patent on reasonable terms within a period of six months
from the initial request for a voluntary licence …" may apply to the Tribunal for the granting of a
compulsory licence on the ground that the reasonable requirements of the public with respect to the
invention in question have not been satisfied or will not be satisfied.
To note is that the compulsory licence will be granted where it is primarily directed at
satisfying the domestic needs of the Zimbabwe market.
A new section 6A inserted by the Patents Amendment Act empowers the Tribunal or Patents
Office to refuse the granting of a compulsory licence where it determines that the granting of a patent
will be anti-competitive.
A compulsory licence shall not be exclusive and shall be revocable where it is established
that:
(i) the circumstances that led to the granting of the licence have since ceased to exist and
are unlikely to  recur; or
(ii) the licensee has failed to exploit the inve ntion within the granting order's stipulated
time; or
(iii) the licensee has failed to expend the amount specified in the licence as being the
amount which he is able to and willing to provide for the purpose of exploiting the
invention on a commercial scale in Zimbabwe; or
(iv) the licensee has failed to honour and pay the patentee the royalties payable in terms of
the licence agreement.
Clauses 10 and 11 of the Patents Amendment Act further amplify the requirements of the
TRIPS Agreement as enumerated in Article 31 vis-à-vis  compulsory licensing.  Thus, the amendments
to the present Patents Act as introduced by clauses 9, 10 and 11 of the Amendment Act substantiallyfulfil our obligations as envisaged by Article 31 of the TRIPS Agreement.
4. Does your legislation provide for the principle of the reversal of burden of proof in a process
patent litigation?  Please cite the relevant provisions of law.
Clause 14 of the Patents Amendment Act amends the Patents Act by the introduction of a
subsection (1a) which subsection has the effect of providing for the reversal of burden of proof in a
process litigation.  This legal innovation is in compliance with the provisions of Article 34 of the
TRIPS Agreement.
B. P
ROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market authorisation of
a pharmaceutical or of an agricultural chemical product is protected against disclosure and againstIP/C/W/323
Page 7
unfair commercial use by a competitor, for example by prohibiting a second applicant from relying
on, or from referring to the original data of the first applicant, when applying subsequently for market
authorisation for a similar product.  Does your legislation provide for exceptions to this? If yes, under
what conditions would such exceptions apply?  Does your legislation set a specific term of protection
for undisclosed test or other data of the first applicant?
There are no special provisions relating specifically to pharmaceuticals or agricultural
chemicals under our legislation.  However, these wo uld be protected under our legislation in terms of
section 12 of the Industrial Designs Act [Chapter 26 :02] and sections 19 and 20 of the Patents Act
[Chapter 26:03].  Like any other test or data relating to the various fields of technology, protection
would not be granted where the applicant or his predecessor has already commercially exploited the
art, process or data without seeking protection as stipulated by the legislation, that is to say, where thetest or other data has been flagrantly put into the public domain by the applicant.
However, we  still have to craft specific legislative provisions in this area in compliance with
Article 39 of the TRIPS Agreement.
C.E NFORCEMENT
6. Please indicate remedies provided by your legislation which constitute effective deterrents to
infringements of intellectual property rights.
• Part VI of the Patents Act [Chapter 26:03] as amended by clauses 14 and 15 of the
Patents Amendment Act
• Part VIII, sections 46, 46A, 46B, 47, 47A, and Part IX of the Industrial Designs Act
(Chapter 26:02] as amended by clauses 9, 10, 11 and 12 of the Industrial Designs Act
• Parts III, XII and XIV of the Trade Marks Act [Chapter 26:04] as amended by clauses
12, 13, 14, 15, 16 and 17 of the Trade Marks Amendments Act No. 10 of 2001
• Parts V, IV and sections 78 and 110 of the Copyright and Neighbouring Rights Act
[Chapter 26:05]
• Part III of the Geographical Indications Act [Chapter 26:06]
• Parts X and X1 of the Integrated Circuit Layout-Designs Act [Chapter 26:07]
• Part III of the Intellectual Property Tribunal Act [Chapter 26:08]
• Part IVA sections 25C-E of the Plant Breeders Rights Act [Chapter 18:16] as inserted
by clause 16 of the Plant Breeders Rights Amendment Act No. 11 of 2001
7. Please describe any new initiatives that are planned to improve enforcement of intellectual
property rights in your country, particularly initiatives related to criminal enforcement.
The Criminal Penalties Bill II B 15, 2001 (pending before Parliament for debate), is a legal
innovation aimed at expediting adjustments to fines for criminal offences of all statutory criminal
provisions by empowering the Minister of Justice, Legal and Parliamentary Affairs to, by notice in the
Gazette, review and issue out a standard scale of fines in which he will prescribe levels of fines and
their monetary amounts.  This also applies to the criminal provisions in the intellectual propertylegislation.
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