Cambodia: Intellectual Property Law

Intellectual Property Law
March 15, 2009
By Chea Sophal


Phnom Penh: March 15, 2009, In its second day, the International Symposium focuses on Intellectual Property Law. This session was chaired by Ly Chantola, Professor of Royal University of Law and Economics and the three speakers: Professor San Sorphorn, RULE, Professor Shiozawa Kazuhiro, Seikei University Faculty of Law, Tokyo, and Mr. Phin Sovath, Doctoral Candidate, Nagoya University Graduate School of Law.
I. Domestic Exhaustion of Patent Rights: A Theoretical and Practical Analysis

a. What is the doctrine of “exhaustion of patent rights” or “first sale doctrine”?
Upon purchasing a patented product from a patent holder or with his consent, a purchaser is entitled to sue and dispose of this patented product without any liability for an infringement of patent rights.

Under this doctrine, a sale of a patented product by a patent holder exhausts his patent rights to control a patented product once it has been holder has no longer the right to exclude the purchasers from their own usage and disposition after the patented products have been lawfully sold on the market.

b. Cases brought to the Court
In his key note, the Professor raised the case example of the United States. In the United States, the doctrine of patent right exhaustion has been developed from case law for many years since the 19th Century. Numerous cases relating to extensions of the patent term were brought to the Supreme Court that frequently held that a purchaser, who lawfully bought a patented product, was entitled to protection.

c. Two main problems in the litigations occurred in the cases: theoretical and practicalThe first problem concerns which theory is the most appropriate to justify the formation and the existence of the patent exhaustion doctrine.

The second problem relates to the scope and limitations of patent exhaustion and a judicial standard for determining these scope and limitations.

II. Intellectual Property Rights in Cambodia and its laws in draft

Professor Ly Chantola showed the main laws which were already promulgated in the fields of intellectual property rights which include Law on Marks, Trade Name and Acts of Unfair Competition (taking into effect on 7 February 2002); Law on Patents, Utility Models and Industrial Designs (22 January 2003); and Law on Copyright and Related Rights (5 March 2003). There are some other laws in draft such as Law on Trade Secrets, Law on Undisclosure Information and Compulsory Licensing for Public Health, Law on Geographical Indications, and Law on Layout Design of Integrated Circuit, said the professor.


III. Challenges in Legal and Institutional Reforms

The Professor continued to highlight some of the challenges facing in the Cambodian legal and institutional reforms. Those challenges are listed below:
 Lack of human and financial resources;
 Laws adopted in rush in order to meet the deadlines;
 Difficulties in enforcing laws after adoption.
 Unclear understanding of provisions or meaning of laws by competent authorities
 Translation of laws from foreign languages into Khmer
 Inconsistency of new laws with existing laws and regulations; and
 Donors’ or international expert model-based laws.