Section VII.—Industrial property (Art. 306 to 311)
Note to X, sec. VII
While the restoration of rights of industrial, literary, and artistic property was welcomed, the German delegation complained that [Page 633] the draft treaty in article 306, paragraph 1, did not make entirely clear who (“legal representatives”, “ayants droit”) were included in this benefit, and that under paragraph 15 of the annex to article 298 the Allies could apparently withdraw recognition of rights which had been restored ( Foreign Relations, The Paris Peace Conference, 1919, vi, 896). Furthermore, Germany was compelled to recognize whatever action had been taken during the war by the Allied and Associated Governments against German patents, without benefit of reciprocity; while paragraph 5 of article 306 would permit them, in certain circumstances, to seize German patent rights in time of peace. All in all, the Allies would be “free to appropriate the fruits of German inventiveness without any compensation and for an incalculable time”. Germany also objected to the application of wartime legislation of the Allies to any patents which might be revived under articles 307 and 308, and to the provision in respect of contracts for licenses by which disputes involving a German license must be settled by the Mixed Arbitral Tribunal, whereas in the case of a license of an Allied or Associated Power, the decision was entrusted to a court of that power. Finally, if under article 311 the inhabitants of German territories separated from the Reich by the treaty were to continue to enjoy in Germany the patent rights to which they had been entitled, then an addition should be made to article 76 which would assure the exercise of German patent rights in Germany for inhabitants of Alsace-Lorraine.
The Allies declined to grant the reciprocity demanded by Germany, but denied that they intended to outlaw or confiscate German property rights ( ibid., p. 989). Their measures would be confined to rights arising before or during the war and would not be applied to post-war patents and German fears were exaggerated; in several cases clauses were added safeguarding German rights.
For special application to Alsace-Lorraine, see article 76.
Article 306.
Subject to the stipulations of the present Treaty, rights of industrial, literary and artistic property, as such property is defined by the International Conventions of Paris and of Berne, mentioned in Article 286, shall be re-established or restored, as from the coming into force of the present Treaty, in the territories of the High Contracting Parties, in favour of the persons entitled to the benefit of them at the moment when the state of war commenced [Page 634] or their legal representatives. Equally, rights which, except for the war, would have been acquired during the war in consequence of an application made for the protection of industrial property, or the publication of a literary or artistic work, shall be recognised and established in favour of those persons who would have been entitled thereto, from the coming into force of the present Treaty.
Nevertheless, all acts done by virtue of the special measures taken during the war under legislative, executive or administrative authority of any Allied or Associated Power in regard to the rights of German nationals in industrial, literary or artistic property shall remain in force and shall continue to maintain their full effect.
No claim shall be made or action brought by Germany or German nationals in respect of the use during the war by the Government of any Allied or Associated Power, or by any persons acting on behalf or with the assent of such Government, of any rights in industrial, literary or artistic property, nor in respect of the sale, offering for sale, or use of any products, articles or apparatus whatsoever to which such rights applied.
Unless the legislation of any one of the Allied or Associated Powers in force at the moment of the signature of the present Treaty otherwise directs, sums due or paid in virtue of any act or operation resulting from the execution of the special measures mentioned in paragraph I of this Article shall be dealt with in the same way as other sums due to German nationals are directed to be dealt with by the present Treaty, and sums produced by any special measures taken by the German Government in respect of rights in industrial, literary or artistic property belonging to the nationals of the Allied or Associated Powers shall be considered and treated in the same way as other debts due from German nationals.
Text of May 7:
Unless the legislation of any one of the Allied or Associated Powers otherwise directs, sums due or paid in virtue of any act or operation resulting from the execution of the special measures mentioned in paragraph I of this article shall be dealt with in the same way as other sums due to German nationals are directed to be dealt with by the present Treaty; and sums produced by any special measures taken by the German Government in respect of rights in industrial, literary, or artistic property belonging to the nationals of the Allied or Associated Powers shall be considered and treated in the same way as other debts due from German nationals.
[Page 635]Each of the Allied and Associated Powers reserves to itself the right to impose such limitations, conditions or restrictions on rights of industrial, literary or artistic property (with the exception of trade-marks) acquired before or during the war, or which may be subsequently acquired in accordance with its legislation, by German nationals, whether by granting licences, or by the working, or by preserving control over their exploitation, or in any other way, as may be considered necessary for national defence, or in the public interest, or for assuring the fair treatment by Germany of the rights of industrial, literary and artistic property held in German territory by its nationals, or for securing the due fulfilment of all the obligations undertaken by Germany in the present Treaty. As regards rights of industrial, literary and artistic property acquired after the coming into force of the present Treaty, the right so reserved by the Allied and Associated Powers shall only be exercised in cases where these limitations, conditions or restrictions may be considered necessary for national defence or in the public interest.
In the event of the application of the provisions of the preceding paragraph by any Allied or Associated Power, there shall be paid reasonable indemnities or royalties, which shall be dealt with in the same way as other sums due to German nationals are directed to be dealt with by the present Treaty.
Text of May 7:
Each of the Allied and Associated Powers reserves to itself the right to impose such limitations, conditions, or restrictions on rights of industrial, literary, or artistic property (with the exception of trade-marks) acquired before or during the war, or which may be subsequently acquired in accordance with its legislation, by German nationals, whether by granting licences, or by the working, or by preserving control over their exploitation, or in any other way, as may be considered necessary for national defence, or in the public interest, or for assuring the fair treatment by Germany of the rights of industrial, literary, and artistic property held in German territory by its nationals, or for securing the due fulfilment of all the obligations undertaken by Germany in the present Treaty.
Each of the Allied or Associated Powers reserves the right to treat as void and of no effect any transfer in whole or in part or other dealing with rights of or in respect of industrial, literary or artistic property effected after August 1, 1914, or in the future, which would have the result of defeating the objects of the provisions of this Article.
[Page 636]The provisions of this Article shall not apply to rights in industrial, literary or artistic property which have been dealt with in the liquidation of businesses or companies under war legislation by the Allied or Associated Powers, or which may be so dealt with by virtue of Article 297, paragraph (b).
Note to X, 306
For the inapplication to Siam, of paragraph 5 of this article, see note under article 187.
Article 307.
A minimum of one year after the coming into force of the present Treaty shall be accorded to the nationals of the High Contracting Parties, without extension fees or other penalty, in order to enable such persons to accomplish any act, fulfil any formality, pay any fees, and generally satisfy any obligation prescribed by the laws or regulations of the respective States relating to the obtaining, preserving, or opposing rights to, or in respect of, industrial property either acquired before August 1, 1914, or which, except for the war, might have been acquired since that date as a result of an application made before the war or during its continuance, but nothing in this Article shall give any right to reopen interference proceedings in the United States of America where a final hearing has taken place.
All rights in, or in respect of, such property which may have lapsed by reason of any failure to accomplish any act, fulfil any formality, or make any payment, shall revive, but subject in the case of patents and designs to the imposition of such conditions as each Allied or Associated Power may deem reasonably necessary for the protection of persons who have manufactured or made use of the subject matter of such property while the rights had lapsed. Further, where rights to patents or designs belonging to German nationals are revived under this Article, they shall be subject in respect of the grant of licences to the same provisions as would have been applicable to them during the war, as well as to all the provisions of the present Treaty.
Text of May 7:
… Further, where rights to patents or designs belonging to German nationals are revived under this article, they shall be subject to the same provisions as would have been applicable to them during the war, as well as to all the provisions of the present Treaty.
[Page 637]The period from August 1, 1914, until the coming into force of the present Treaty shall be excluded in considering the time within which a patent should be worked or a trade mark or design used, and it is further agreed that no patent, registered trade mark or design in force on August 1, 1914, shall be subject to revocation or cancellation by reason only of the failure to work such patent or use such trade mark or design for two years after the coming into force of the present Treaty.
Article 308.
The rights of priority, provided by Article 4 of the International Convention for the Protection of Industrial Property of Paris, of March 20, 1883, revised at Washington in 1911 or by any other convention or Statute, for the filing or registration of applications for patents or models of utility, and for the registration of trade marks, designs and models which had not expired on August 1, 1914, and those which have arisen during the war, or would have arisen but for the war, shall be extended by each of the High Contracting Parties in favour of all nationals of the other High Contracting Parties for a period of six months after the coming into force of the present Treaty.
Nevertheless, such extension shall in no way affect the right of any of the High Contracting Parties or of any person who before the coming into force of the present Treaty was bona fide in possession of any rights of industrial property conflicting with rights applied for by another who claims rights of priority in respect of them, to exercise such rights by itself or himself personally, or by such agents or licensees as derived their rights from it or him before the coming into force of the present Treaty; and such persons shall not be amenable to any action or other process of law in respect of infringement.
Note to X, 307–308
For the treaties of peace with Austria, Bulgaria, and Hungary, which reproduced articles 307 and 308, periods of six months and one year expired on March 30 and September 30, 1921 as a consequence of an agreement between certain of the Allied and Associated Powers made on the initiative of the International Bureau of Industrial Property.
Article 309.
No action shall be brought and no claim made by persons residing or carrying on business within the territories of Germany on the [Page 638] one part and of the Allied or Associated Powers on the other, or persons who are nationals of such Powers respectively, or by any one deriving title during the war from such persons, by reason of any action which has taken place within the territory of the other party between the date of the declaration of war and that of the coming into force of the present Treaty, which might constitute an infringement of the rights of industrial property or rights of literary and artistic property, either existing at any time during the war or revived under the provisions of Articles 307 and 308.
Equally, no action for infringement of industrial, literary or artistic property rights by such persons shall at any time be permissible in respect of the sale or offering for sale for a period of one year after the signature of the present Treaty in the territories of the Allied or Associated Powers on the one hand or Germany on the other, of products or articles manufactured, or of literary or artistic works published, during the period between the declaration of war and the signature of the present Treaty, or against those who have acquired and continue to use them. It is understood, nevertheless, that this provision shall not apply when the possessor of the rights was domiciled or had an industrial or commercial establishment in the districts occupied by Germany during the war.
This Article shall not apply as between the United States of America on the one hand and Germany on the other.
Note to X, 309
The last paragraph of this article and of article 310 originated with the American representatives on the Subcommission on Industrial Property of the Economic Commission at the Paris Peace Conference. These articles (Nos. V and VI in draft) were first entitled “Reciprocal Amnesty” and “Prewar Licenses” and were intended to reinstate the methods of application of the conventions as they were understood before the German Government and German concerns systematically utilized protective features of the conventions in their preclusive commercial policy. The two articles sought to disinvest rights acquired under those practices. The delegate of the United States on the subcommission (J. Baily Brown) filed a note in which he stated that the United States could not admit the provisions of the two articles. As no other delegates were of that mind, the articles were adopted with exception made of the United States. “Our opinion”, said the note, “is that the provisions are in contradiction with the principles of public law and perhaps with the Constitution of the United States, seeing that they deprive our nationals [Page 639] of property rights without contemplating an evaluation of their value and just compensation therefor.”
Article 310.
Licences in respect of industrial, literary or artistic property concluded before the war between nationals of the Allied or Associated Powers or persons residing in their territory or carrying on business therein, on the one part, and German nationals, on the other part, shall be considered as cancelled as from the date of the declaration of war between Germany and the Allied or Associated Power. But, in any case, the former beneficiary of a contract of this kind shall have the right, within a period of six months after the coming into force of the present Treaty, to demand from the proprietor of the rights the grant of a new licence, the conditions of which, in default of agreement between the parties, shall be fixed by the duly qualified tribunal in the country under whose legislation the rights had been acquired, except in the case of licences held in respect of rights acquired under German law. In such cases the conditions shall be fixed by the Mixed Arbitral Tribunal referred to in Section VI of this Part. The tribunal may, if necessary, fix also the amount which it may deem just should be paid by reason of the use of the rights during the war.
No licence in respect of industrial, literary or artistic property, granted under the special war legislation of any Allied or Associated Power, shall be affected by the continued existence of any licence entered into before the war, but shall remain valid and of full effect, and a licence so granted to the former beneficiary of a licence entered into before the war shall be considered as substituted for such licence.
Where sums have been paid during the war by virtue of a licence or agreement concluded before the war in respect of rights of industrial property or for the reproduction or the representation of literary, dramatic or artistic works, these sums shall be dealt with in the same manner as other debts or credits of German nationals, as provided by the present Treaty.
This Article shall not apply as between the United States of America on the one hand and Germany on the other.
Article 311.
The inhabitants of territories separated from Germany by virtue of the present Treaty shall, notwithstanding this separation and [Page 640] the change of nationality consequent thereon, continue to enjoy in Germany all the rights in industrial, literary and artistic property to which they were entitled under German legislation at the time of the separation.
Rights of industrial, literary and artistic property which are in force in the territories separated from Germany under the present Treaty at the moment of the separation of these territories from Germany, or which will be re-established or restored in accordance with the provisions of Article 306 of the present Treaty, shall be recognized by the State to which the said territory is transferred and shall remain in force in that territory for the same period of time given them under the German law.