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Article 34  Process Patents: Burden of Proof34  方法专利:举证责任

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28if the subject matter of a patent is a process for obtaining a productthe judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. ThereforeMembers shall providein at least one of the following circumstancesthat any identical product when produced without the consent of the patent owner shallin the absence of proof to the contrarybe deemed to have been obtained by the patented process



(a) if the product obtained by the patented process is new



(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.



2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.



3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.






Article 35  Relation to the IPIC Treaty

35  与《关于集成电路的知识产权条约》的关系


Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as “layout-designs”) in accordance with Articles 2 through 7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits andin additionto comply with the following provisions.



Article 36  Scope of the Protection36  保护范围

Subject to the provisions of paragraph 1 of Article 37Members shall consider unlawful the following acts if performed without the authorization of the right holder9 importing sellingor otherwise distributing for commercial purposes a protected layout-designan integrated circuit in which a protected layout-design is incorporatedor an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout-design.



Article 37  Acts Not Requiring the Authorization of the Right Holder

37  无需权利持有人授权的行为


1. Notwithstanding Article 36no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to knowwhen acquiring the integrated circuit or article incorporating such an integrated circuitthat it incorporated an unlawfully reproduced layout-design. Members shall provide thatafter the time that such person has received sufficient notice that the layout-design was unlawfully reproducedthat person may perform any of the acts with respect to the stock on hand or ordered before such timebut shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in respect of such a layout-design.

尽管有第36条的规定,但如若从事或命令从事该条所指的与含有非法复制的布图设计的集成电路或含有这种集成电路的物品有关的人  在获得该集成电路或含有该集成电路的物品时,不知道且没有合理的理由知道其中包含这种非法复制的布图设计,则任何成员不应将从事该条所指的任何行为视为非法。各成员应规定,在此人收到关于该布图设计被非法复制的充分通知后,可对现有的存货及此前的订货采取任何行动,但有责任向权利持有人支付一笔金额,该金额相当于就该布图设计自愿达成的许可协议应付的合理提成费。


2. The conditions set out in subparagraphs (a) through (k) of Article 31 shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.



Article 38  Term of Protection38  保护期限

1. In Members requiring registration as a condition of protectionthe term of protection of layout-designs shall not end before the expiration of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.



2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than 10 years from the date of the first commercial exploitation wherever in the world it occurs.



3. Notwithstanding paragraphs 1 and 2a Member may provide that protection shall lapse 15 years after the creation of the layout-design.




7  对未披露信息的保护


Article 3939

1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.



2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices10 so long as such information



(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question



(b) has commercial value because it is secretand因其保密而具有商业价值;并且


(c) has been subject to reasonable steps under the circumstancesby the person lawfully in control of the informationto keep it secret.



3. Memberswhen requiringas a condition of approving the marketing of pharmaceutical

or of agricultural chemical products which utilize new chemical entitiesthe submission of undisclosed test or other datathe origination of which involves a considerable effortshall protect such data against unfair commercial use. In additionMembers shall protect such data against disclosureexcept where necessary to protect the publicor unless steps are taken to ensure that the data are protected against unfair commercial use.





7 “其他使用”是指除第30条允许以外的使用。