What is a Cambodian Patent and Why is it Important for my Startup?

A Cambodian patent is a government-granted right granted to an inventor that allows them to prevent others from making, using or otherwise exploiting their invention, for a certain period of time. They serve as a financial incentive to develop new technologies by providing a period of exclusivity to their inventors.

For a startup with a truly innovative product or process, obtaining one or more patents in Cambodia is often a primary concern. Without such industrial property, they expose themselves to a competitor reverse engineering the invention and marketing it themselves. Potential investors quite often will expect an innovation-based startup to at least have a pending patent application covering the essential products or services. A Cambodian patent can also be licensed to a manufacturer, distributor or other market-player, thereby saving the startup from owning their own factory or distribution chain. Finally, in any acquisition of a startup, the buyers will analyze closely any patent rights, and take them into account in calculating their price.

 

What Can be Patented in Cambodia?

In Cambodia, as in most countries, a patent can be obtained for any technical invention that permits in practice the solution to a specific problem, and can be for a product (a physical thing) or process (such as a way of manufacturing a product). The scope of what can be patentable is extremely broad, but specifically excludes:

·        Discoveries, scientific theories and mathematical models;

·        Schemes, rules or methods for doing business, performing purely mental acts or playing games;

·        Methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body;

·        Pharmaceutical products;

·        Plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals;

·        Plant varieties.

Computer software, often a startup’s core asset, is patentable under certain conditions as either a product (for the program code on a tangible disk, or the computer itself) or a process (for the steps performed by and directed by the computer).

In addition to this subject-matter requirement, the invention must be new, involve an inventive step and industrially applicable.

First, to be “new”, an invention cannot have been disclosed to the public prior to the inventor applying for the patent. The disclosure can take many forms – a product on sale, a public speech, a publication in a scientific journal, etc. – and can have taken place in or outside of Cambodia. The principle exception to this rule is if the inventor made the disclosure themselves within the twelve months prior to the patent application. In short, this means that once a startup has disclosed the invention, they have one year to file a patent or lose their rights. Disclosure does not need to be in print – even discussing the invention with potential investors can start the clock ticking.

Second, the invention must involve an “inventive step”. This term of art means that it would not have been obvious to a person knowledgeable about the technology. Some inventions can be “new”, but are of such slight improvement over existing technology that they don’t satisfy this test. If this is the case, no patent registration is possible, but a utility model certificate – a related form of industrial property – could be registered.

Third, the invention must be industrially applicable, or in other words, it can be made or used in any kind of industry. Products that simply don’t work as intended don’t qualify. There are also certain exclusions for harmful or amoral inventions, like narcotics or poisons, as well as those prohibited by law.

 

Cambodian Patent Registration Process

In Cambodia, patents are registered with the Department of Industrial Property within the Ministry of Industry and Handicraft.

In addition to the standard application form, the Cambodian patent applicant must submit in Khmer a description of the invention, the claims, any drawings necessary to understand the invention, and an abstract of the patent. The complexity of patent drafting should not be underestimated – properly describing a new invention, and writing claims that grant the inventor the strongest protection possible, while not overstepping into existing technology, is a highly sophisticated discipline. For startups in Cambodia with a truly new invention, the Inventor Assistance Program run by the World Intellectual Property Organization and World Economic Forum can provide assistance in analyzing whether a patent could be registered.

 

International Patent Considerations

A startup with a patentable invention will likely want to obtain a patent not just in Cambodia, but in other countries where they are or plan to do business. To recall, patent rights are territorial – a Cambodian patent will not prevent someone else from selling the invention in Vietnam, and vice versa.

Several bilateral agreements between Cambodia and Japan, China, Singapore and Europe, as well as the Patent Cooperation Treaty, can facilitate this process. The timing, costs and coordination of such international applications need to be carefully planned, ideally with expert assistance.

 

For more on Cambodian patents, refer to alliance member Abacus IP’s

Guide to Patent Law in Cambodia.

 

 

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