Cambodia becomes 4th EPO Validation State

From 1 March 2018, it will be possible to validate European patents in Cambodia (KH).  Cambodia will be the first Asian country to recognise European patents and joins Morocco, the Republic of Moldova, and Tunisia as the fourth validation state for European patent applications.  This means that it will be possible to cover up to 44 countries with a single European patent application for applications filed on or after 1 March 2018.

A validation state is a non-contracting state to the European Patent Convention (EPC) that has entered into a validation agreement with the European Patent Office (EPO).  A validation agreement enables an applicant to request validation of a European patent application in a validation state.  After validation, and subject to the national law of the validation state, the resulting patent will in principle have the same effect as a national patent in that state, and will confer essentially the same protection as patents granted by the EPO for EPC contracting states.

It is important to note that it will not be possible to obtain patent protection under this agreement for pharmaceutical products.  This is because under the Law on Patents in force in Cambodia, pharmaceutical products are excluded from patent protection. Cambodia currently benefits from the World Trade Organisation waiver allowing Least Developed Countries (LDCs) to avoid granting and enforcing IP rights on pharmaceutical products until 2033. This waiver would also apply to European patents providing protection for pharmaceutical products, for which validation is sought in Cambodia.

However, for pharmaceutical products, applicants can benefit under Article 70.8 TRIPS from a so-called “mailbox system” According to this “mailbox system”, Cambodian legislation authorises the filing of patent applications for pharmaceutical products, despite the fact that they are excluded from patent protection.  A metaphorical “mailbox” is created to receive and store these national applications and they will not be examined as to their patentability until the end of the transitional period.  Following that period, protection may be granted for the remainder of the patent term, computed from the filing date of the application.

Thus, it is still possible to file European patent applications for pharmaceutical products and validate in Cambodia, but protection will not be granted until after expiry of the transitional period.  The transitional period has already been extended a number of time and is currently due to run until 1 January 2033, although it is possible that this period may be extended further.

The EPO’s announcement can be found here.