Intellectual Property Colloqium of Judges in Asia and the Pacific

INTELLECfUAL PROPERTY COLLOQUIUM OF JUDGES IN ASIA AND THE PACIFIC jointly organized by the World Intellectual Property Organization (WIPO) and the Law Association for Asia and the Western Pacific (LAW ASIA) with the assistance of the United Nations Development Programme (UNDP) at Sydney, Australia October 8 to 12, 1984 GENEVA 1985 WJPO PUBLICATION No. 652 (E) ISBN 92-805-0145-3 © WIPO 1985 FOREWORD The protection of intellectual property rights, which are a reward for creativity and inventiveness and a stimulus to further creative and inventive efforts, is dependent on the effective administration of justice. The recognition of this essential contribution of the Judiciary to the intellectual property system lay behind the organization of the Intellectual Property Colloquium of Judges in Asia and the Pacific which was held in Sydney, Australia, in October 1984. The papers which were delivered at the Colloquium are collected in the present volume. The Colloquium was jointly organized by the World Intellectual Property Organization (WIPO) and the Law Association for Asia and the Western Pacific (LAWASIA) with the assistance of the United Nations Development Programme (UNDP). As LAWASIA is the largest organization of judges, legal practitioners, and law teachers in Asia and the Pacific, it was appropriate that the theme of this second joint activity undertaken by WIPO and LAWASIA should concentrate on the judicial role in the intellectual property system. Justices, including five Chief Justices, and Judges from fourteen countries in the region, as well as guests from countries outside the region, participated in the Colloquium, which provided a forum for the exchange of views and opinions on those issues which have assumed prominence in the intellectual property cases coming before the courts of the various countries in the region. The Colloquium was one of the activities carried out by WIPO in 1984 within its regional project for the establishment and strengthening of industrial property systems in Asia and the Pacific, financed by UNDP under the Inter-Country Programme for Asia and the Pacific (1982-86). The regional project has hitherto been directed at the introduction of new laws, the modernization of existing laws, and the efficient implementa tion and administration of those laws by executive departments of State. The extension of the activities of the project beyond the legislative and executive arms of government to the judicial branch through the Colloquium has added to the project the vital dimension of the judicial experience of those laws with which the project has been concerned at the legislative and executive level. WIPO is most appreciative of the support received from UNDP in facilitating this very valuable additional insight into the intellectual property systems in Asia and the Pacific. I wish to record the warm thanks of WIPO to the Right Honorable Sir Harry Gibbs, Chief Justice of the High Court of Australia, to Mr. Justice Ian Sheppard of the Federal Court of Australia, and to the other members of the Australian Judiciary for their hospitality in hosting the Colloquium. Our profound thanks must also go to LAWASIA and, in particular, to its Secretary General, Mr. David Geddes, for their excellent assistance in the organization of the Colloquium, which I trust will be only the second of many joint ent~rprises between WIPO and LAWASIA. [\ • (\()<lAA-L / " Arpad ~oJf;~h ~ Director General World Intellectual Property Organization CONTENTS Address by Dr. Arpad Bogsch, Director General, WIPO 9 Opening Address by the Right Honorable Sir Harry Gibbs, Chief Justice of the High Court of Australia 13 Evidence, with Special Reference to the Role of the Expert by the Honorable Mr. Justice Lockhart, Federal Court of Australia 15 Appeals to Courts from Administrative Decisions Made in Australia by the Honorable Mr. Justice Ian F. Sheppard, Federal Court of Australia, President, Australian Copyright Tribunal 19 Patents for Invention - Typical Issues Before the Courts By Anne Dufty LL.B. (Hons)Melb; LL.M. (Mon), Barrister and Solicitor of the Supreme Court of Victoria, Senior Lecturer in Law, Monash University, Australia 27 The Overlap Between Copyright and Design Protection by Mr. James W. Dwyer, Solicitor, Sydney, Australia 39 Evidence with. Special Reference to Scientific Evidence Panel discussion introduced by John Garnsey, Barrister, Sydney, Australia 53 Achieving Justice in Infringement and Validity Proceedings Panel discussion introduced by John Garnsey, Barrister, Sydney, Australia 61 The Patent Specification by Mr. D.J. Ryan, Dip. Mech. E., LL.B. (Hons)., Patent Attorney and Solicitor, Melbourne, Australia 67 On Laws of Patents, Designs, Trademarks and Copyright by the Honorable Justice Dr. F.K.M.A. Munim, Chief Justice of Bangladesh 73 Judicial Role Concerning Matters that Involve Interpretation and Application of Laws Dealing with Inventions, Industrial Designs, Trade Marks, Copyrights and Unfair Competition, by the Honorable Justice Dr. F.K.M.A. Munim, Chief Justice of Bangladesh 77 6 WIPO LAWASIA COLLOQUIUM, 1984 The Protection of Industrial Property by the People's Court in the People's Republic of China by the Honorable Mr. Justice Huang Chidong, Vice-President, Chamber for Economic Trials, Supreme People's Court, People's Republic of China 85 Industrial Property and Copyright Law in Fiji by the Honorable Mr. Justice Ronald G. Kermode, C.B.E. L.L.B., Puisne Judge, Supreme Court, Fiji 93 The Validity of Patents in the Federal Republic of Germany by Dr. Ernst Pakuscher, Chief Judge of the Federal Patent Court of the Federal Republic of Germany 97 Copyright Law in India by the Honorable Mr. Justice Y.V. Chandrachud, Chief Justice of India 111 Infringement and Invalidation in Relation to Copyright and Patents by the Honorable Mr. Justice P.N. Bhagwati, Justice of the Supreme Court of India 115 Survey of Malaysian Case Law on the Protection of Intellectual Property (1970-1984) by the Honorable Mr. Justice Mahadev Shankar, High Court, Johor, Malaysia 121 Some Issues Relating to the Law of Intellectual Property in Malaysia by the Honorable Justice Dr. Zakaria bin Mohd. Yatim, High Court, Kuala Lumpur, Malaysia 135 Remedies in Intellectual Property Cases by the Honorable Mr. Justice R.I. Barker, Judge of the High Court, New Zealand 153 Intellectual Property Issues in Pakistan by Mr. Justice Muhammad Haleem, Chief Justice of Pakistan, Supreme Court, Pakistan 193 Intellectual Property and the Courts of Papua New Guinea by Mr. Justice William Kaputin, Supreme Court, Papua New Guinea 223 Protection of Intellectual Property in the Philippines by the Honorable Justice Enrique M. Fernando, Chief Justice of the Supreme Court, Philippines 225 The Laws Relating to Intellectual Property and their Applications in Singapore by the Honorable Mr. Justice T.S. Sinnathuray, Supreme Court, Republic of Singapore 239 CONTENTS 7 Intellectual Property in Sri Lanka by the Honorable Mr. Justice R.S. Wanasundera, Chief Justice's Chambers, Supreme Court, Sri Lanka 243 Intellectual Property Issues in Thailand by the Honorable Mr. Justice Sansern Kraichitti, Chief Justice of the Court of Appeals, Supreme Court, Thailand 247 Protection of Intellectual Property in Viet Nam by the Honorable Justice Mrs. Nguyen Thi Ngoc Khanh, Vice-President, Supreme People's Court, VietNam 249 Injunction and Damages by Mr. Nguyen Van Vien, Juridical Expert, Viet Nam 255 List of Participants 257 ADDRESS Dr. Arpad Bogsch, Director General, WIPO The Right Honorable Sir Harry Gibbs, Chief Justice of the High Court of Australia, The Honorable Justice Ian Sheppard, The Honorable Judges from Bangladesh: Chief Justice Munim and Justice Chowdhury from China: Justice Huang Chidong from Fiji: Chief Justice Sir Timoci Tuivaga and Justice Kermode from India: Chief Justice Chandrachud and Justice Bhagwati from Malaysia: Justice Shankar and Justice Yatim from Pakistan: Chief Justice Haleem and Justice Nusrat from Papua New Guinea: Justice Kaputin and Justice Woods from the Philippines: Chief Justice Fernando and Judge Mabutas from Singapore: Justice Sinnathuray from Sri Lanka: Justice Wanasundera and Judge Unarnboowe from Thailand: Justice Kraichitti and Justice Ratanakorn from Viet Nam: Justice Mrs. Nguyen Thi Ngoc Khanh The Honorable Guest Speakers from abroad: Justice Barker from New Zealand President Pakuscher from the Federal Republic of Germany Judge Rich from the United States of America 10 WIPO LAWASIA COLLOQUIUM, 1984 The Honorable Guest Speakers from Australia: Justice Franki~ Justice Lockhart, Justice Waddell Other Guest Speakers from Australia: Mrs. Duftyl Mr. Dwyer, Mr. Emerson, Mr. Garnsey, Mr. Kerr, Mr . Limbury and Mr. Ryan Excellencies, Ladies and Gentlemen, I have the pleasure to welcome you and greet you in the name of one of the two organizations that organize this Colloquium, namely, the World Intellectual Property Organization, sometimes called simply WIPO. The other organization organizing the Colloquium is the Law Association for Asia and the Western Pacific, generally known as LAWASIA. Theirs is the task, and the merit, of all that concerns the practical arrangements for the Colloquium. Those arrangements are being directed by Mr. David Geddes, Secretary General of LAWASIA. I greet him and thank him most cordially. Part of the costs of this Colloquium is being covered by funds put at the disposal of WIPO by the United Nations Development Programme (UNDP). WIPO thanks most sincerely UNDP too. Intellectual property--that is, the rights in inventions,

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