Reflections on the Moroccan Patent System
by María Victoria Rivas Llanos
Last 1 March 2015 came into force the system for the validation of European patents in Morocco, following the ratification by the Moroccan authorities of the legal provisions contained in the validation agreement for European patents that was signed between the President of the EPO and Morocco’s Ministry of Industry, Trade Investment and Digital Economy, on 17 December 2010 in Casablanca. As a result, Morocco became the first country where a validation agreement with the EPO has entered into force.
The validation system offers applicants for a European patent at the EPO a new filing route: they can request the validation of their European application and patent in Morocco just like EPO Member States or extension States. European patents validated in Morocco will have the same legal effects as a national patent and will be subject to the Moroccan patent law. The procedure is subject to a validation fee of EUR 240.
It is important to note that through this agreement Morocco will not become party of the European Patent Convention (EPC). The only applicable legislation in Morocco regarding patents remains its national Industrial Property Law N.23-13, which entered into force in December 2014 providing the legal basis for the implementation of the validation system in Morocco together with the related decree, arrêté and administrative notes.
In order to better understand the reach of the validation agreement it is important to have an overview of the Moroccan patent system and its evolution in the last 15 years.
Evolution of the patent system in Morocco
The Moroccan Industrial and Commercial Property Office (OMPIC) was created pursuant to Law N. 13-99 in February 2000, from the merger between a pre-existing office established in 1916 and the central register of commerce. On the same date, the Law N.17-97 on the Protection of Industrial Property was enacted.
The Law N.17-97 entered into force on 18 March 2004, replacing the previous laws in Morocco, namely the Law of 23 June 1916 (which covered the former French area) and the Act of 4 October 1938 on the protection of Industrial Property (which applied in the former international area of Tangiers). Law N.17-97 brought some new provisions to the Moroccan legislation in tone with the national industrial development in Morocco and the WTO TRIPS Agreement, such as the following:
- Protection of new areas (e.g. pharmaceutical products and inventions of employees)
- Simplification of the filing procedure (i.e. any applicant had the opportunity to benefit from a delay of three months to regularise his unfinished file)
- Punishment, prison sentences and dissuasive fines in case of imitation, counterfeiting and unfair competition
Law N.17-97 was amended and supplemented by Decree of 20 February 2006 introducing new changes to the Moroccan IP legislation, including:
- Extended protection in case of grant of patent after 4 years from the filing date
- Protection of combinations and new uses for known products
- Possibility of granting compulsory licences for pharmaceutical products at the request of the administration in charge of public health
- Possibility of undertaking clinical trials using a patented drug
- Prohibition of parallel importation
The new Law N.23-13 amending and supplementing the Law N.17-97 entered into force on 18 December 2014 and complemented this legal framework as follows.
The Industrial Property Law N.23-13
The Moroccan Industrial Property Law N.23-13 aligned the Moroccan patent system with current international standards. Some of the most relevant changes contained in the law are as follows:
- Organisation of the counselling profession on industrial property (the patent attorney profession)
- Modernisation of the filing procedure of applications for industrial property rights (e.g. possibility of filing divisional patent applications when the principle of unity of the invention is not met)
- Introduction of a novelty examination system for patent applications (substituting the previous registration system)
- Strengthening of industrial property rights’ enforcement, including stronger protection against counterfeiting
- Possibility for Morocco to validate foreign patents
Pharmaceutical patents: Regulation under the Moroccan Law
With the entry into force of the WTO TRIPS Agreement in 1995, all Member States were required to grant patent rights for any inventions, whether products or processes, in all fields of technology by 1 January 1996. Nevertheless, acknowledging the difficulties that developing countries could face on the implementation of this mandate, the TRIPS Agreement contemplated two moratoriums or transitional periods on its Articles 65 (2) and (4). The aforementioned provisions allowed a 4-year period for developing countries to adapt their national legislations to TRIPS (Art 65(2)) and an additional 5-year period to extend patent protection to areas of technology not patentable in their territory before the entry into force of the TRIPS (Art. 65(4)).
Before 1995, no patent rights were granted in Morocco for pharmaceutical products per se but only for methods or processes of manufacture. Consequently, Morocco was able to make use of the transitional period for implementation of the TRIPS provisions until 1 January 2005. Nonetheless, during this transitional period, Morocco complied with Article 70 (8) of the TRIPS, by setting up a “mailbox” system for the filing of patent applications, to be reviewed when the patent protection was in place.
The industrial property law N.17-97 of 15 February 2000 (in force since 18 March 2004) brought new provisions to the Moroccan patent system, including the patentability of pharmaceutical products (Article 21), in tone with the TRIPS Agreement. Accordingly, the OMPIC started to issue patents on medicines in March 2004; however, the system was based on the principle of mere registration and did not provide examination for patent applications, lacking the necessary legal certainty. Indeed, a study on the pharmaceutical patents granted in Morocco from 1970 to 2007, demonstrated that more than half of the patents comprehended in this period were granted between 1996 and 2004. This demonstrated that the mailbox system was used as a “pipeline” for the automatic grant of patents.
The implementation of the validation agreement constitutes a further step towards the strengthening of the legal industrial property infrastructure in Morocco. Since the OMPIC will benefit from European patents granted after examination by the EPO on the basis of the principles stablished in the EPC, it will bring major legal certainty to the Moroccan patent system.
The validation system is accompanied by a sound cooperation between the EPO and the OMPIC that will promote the development of OMPIC’s capacities to further foster national innovation through the development of services to the national users of the patent system. Moreover, in practical terms, the system offers a simple and cost effective procedure for the users of the patent system and rationalises the functioning of the national patent office. This will contribute to the integration of Morocco in the global economy and thus increase the attractiveness of the country for foreign investment.
A subsequent process of adaptation and training of Moroccan courts and industrial property experts will complete the modernisation of the industrial property system in the country.
 The Republic of Moldova and Tunisia also signed validation agreements with the EPO in 2013 and 2014 respectively, both not in force yet.
 Convention on the Grant of European Patents, signed in Munich on 5 October 1973, instituting the European Patent Organisation.
 Law No. 13-99 Creating the Moroccan Industrial and Commercial Property Office, promulgated by Dahir No. 1-00-71 of 9 Kaada 1420 on 15 February 2000.
 Law N.17-97 on the Protection of Industrial Property, promulgated by Dahir No. 1-00-91 of 9 Kaada 1420 on 15 February 2000.
 Under Decree No. 2-00-368 of 7 June 2004, for the implementation of Law No.17-97 on the protection of Industrial Property.
 Ibid N.4.
 Decree No. 2-05-1485 of 20 February 2006 amending and supplementing the Decree No. 2-00-368 7 June 2004 for the implementation of the law No.17-97 on the protection of Industrial Property.
The so-called “Bolar exception” after the US Federal Circuit’s decision Roche Products v. Bolar Pharmaceutical, 733 F.2d 858 (Fed. Cir. 1984).
Law No. 23-13 amending and supplementing Law No. 17-97 on the Protection of Industrial Property, promulgated by Dahir No. 1.14.188 of 27 Muharram 1436 on 21 November 2014.
 There are similar provisions contained in the EPC, the TRIPS Agreement and the Law N.23-13.
 Ibid N. 4.
 Art. 70.8 TRIPS Agreement sets an obligation to provide a system whereby applications for patents for pharmaceutical product inventions could be filed, for later examination at the end of the transitional period (1 January 2005 for developing countries like Morocco and 1 January 2016 for least-developed countries).
 G Krikorian, ‘Intellectual property and access to medicines: paradoxes in Moroccan policy’, in K Shadlen (ed), Intellectual Property, Pharmaceuticals and Public Health: Access to Drugs in Developing Countries (Edward Elgar 2011), 56-76.