Special 301 Report - Latin America Summary

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Our firm's Research Department has prepared a Summary of the 301 Special Report of the United States Trade Representative. This summary is focused on the country reports for Latin American countries, highlighting improvements and concerns noted in the report.

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Special 301 Report - Latin America Summary

  1. 1. 2013 Special 301 Report Office of the United States Trade Representative (USTR) LATIN AMERICA
  2. 2. 2012 Position: Priority Watch List 2013 Position: Priority Watch List Improvements: - Increased number of enforcement raids and improving cooperation between enforcement officials and industry. - Starting civil and criminal actions against the unauthorized distribution of pirated content overt the internet. Concerns: - Additional steps are required to curb ‘rampant piracy and counterfeiting’, including in the digital environment. - Regarding pharmaceutical products, action is required to provide protection against unfair commercial use, unauthorized disclosure of information and eliminate the ‘longstanding backlog of patent applications’. In general, the Report’s take on Argentina’s stand on IPRs is almost identical to last year’s report. No significant improvement or diminishing on the country’s protection of IPRs has taken place during the last year. The 301 Report’s assessment of Argentina has historically been focused on digital piracy and counterfeiting, because these are the areas the affect US commercial interests the most. However, our firm’s practice in Argentina notes that issues such as the lack of ratification of important treaties such as the PCT and the TLT, together with consistent inefficiency in the PTO management of cases, are much bigger issues for Argentinian IP practitioners and IP assets’ owners.
  3. 3. 2012 Position: Priority Watch List 2013 Position: Priority Watch List Improvements: - Legislative proposals regarding IPR protection (The report does not mention any specific one) Concerns: - The need to implement an effective system for addressing patent issues expeditiously in connection with applications to market pharmaceutical products - The need to implement both ‘protections against the unlawful circumvention of technological protection measures, and protections for encrypted program-carrying satellite signals’. - Lack of adequate protections against unfair commercial use and unauthorized disclosure of information related to marketing approval of pharmaceutical products. Assessment of Chile’s state of protection for IPRs is always linked to the obligations Chile has acquired under the US-Chile FTA. For this reason, Chile is usually held to a higher standard than other countries in the region. The report fails to mention Chile’s further implementation of the Trademark Law Treaty (which was mentioned in last year’s report) and improvements in the times and procedures of the INAPI -Chile’s PTO-.
  4. 4. 2012 Position: Priority Watch List 2013 Position: Priority Watch List Improvements: - No improvements were noted in the Report. Concerns: - The current regulation for IPRs in Venezuela, after its withdrawal from the Andean Community, is a 1955 Industrial Property Law. This regulation needs to be brought into conformity with international norms. - Enforcement actions were very limited in 2012. - Stronger penalties for IPR violations are encouraged. - Lack of an effective system for protection of pharmaceutical products. Venezuela’s issues with IPRs are very easily identified and could be relatively easily solved. However, as the report accurately implies, there is a lack of political will to improve the country’s IP system. Most of the concerns laid out in the report aim at the lack of enforcement and proposals for improving failed regulation. Fortunately, the country’s economy continues to be highly attractive for both foreign and domestic investors, with a dynamic and valuable market for IP.
  5. 5. 2012 Position: Watch List 2013 Position: Watch List Improvements: - Bolivia’s PTO has conducted successful IPR public awareness efforts. - Two successful raids against manufacturers of counterfeit products were conducted. Concerns: - Alleged increase in production of infringing goods. - More efficient prosecution of IPRs is required. There was no significant difference in the report’s assessment of Bolivia’s performance in the protection of IPRs from 2012’s edition. In a similar fashion to Venezuela’s situation, a lack of political will for improvement of the IP-protection systems seems to be the problem.
  6. 6. 2012 Position: Watch List 2013 Position: Watch List Improvements: - Notable enforcement efforts across the country under the coordination of the National Council to Combat Piracy. Concerns: - The Report reiterates last year’s concern regarding Brazil’s sanitary regulatory agency -ANVISA- review of pharmaceutical patent applications for meeting patentability requirements. The patent examination process need to be more transparent and predictable. Widespread piracy and counterfeiting -especially in books and over the internet-. Backlog of pending patent applications. From the report’s observations, the concern about the backlog in the PTO’s work is especially worrying. Brazil’s INPI has one of the largest backlogs in the region, with Trademark and Patent applications taking almost twice as much as in any other major Latin American economy.
  7. 7. 2012 Position: Watch List 2013 Position: Watch List Improvements: - Implementation of the US-Colombia FTA has significantly increased engagement between these two countries. Accession to the Madrid Protocol and the Trademark Law Treaty in 2012. - Enforcement operations through improved internal coordination of enforcement agencies. - Significant steps to reduce its backlog of pending patent applications. Concerns: - Key pieces of pending IPR regulation related to the US-Colombia FTA are still to be passed. - Lack of adequate resources and training for enforcement officials. - Growing piracy on the internet. A continued effort to improve the domestic PTO –including improvements in the platform for filing of online applications, organization of the PTO’s schedule of official fees and a better response time for information requirements- in addition to a notable commitment to implement most important international instruments on IPR protection makes Colombia one of the countries with a better record on improvement of the domestic IPR protection system. Big concerns in Colombia’s IP practice is the sustained lack of adequate training of government officials in charge of IP issues and the lack of understanding of IP rights and New Technologies by the judicial system, including some of the highest courts in the country.
  8. 8. 2012 Position: Watch List 2013 Position: Watch List Improvements: - Improvement in processing of patent applications by adding examiners and achieving a reduction in the average time required to review patent applications. Concerns: - Substantial progress on ensuring that government-used software is legitimate has not been achieved. - Law enforcement and customs officials lack ex officio powers for prosecution of IPRs. - Need to make IPR violations a higher priority, concluding prosecutions, and imposing deterrent penalties. Costa Rica is a market with an increasing importance in the region. The report’s assessment of the country is mostly identical to last years’, highlighting the need for making IPR violations a higher priority in the country’s policy-making.
  9. 9. 2012 Position: Watch List 2013 Position: Watch List Improvements: - Improvement in enforcement against pirated goods. - Participation in technical assistance activities relating to IPR protections and enforcement. Concerns: - Widespread availability of pirated and counterfeit goods. - Lack of coordination, resources and training between IPR enforcement agencies. - Lack of protection for pharmaceutical and agricultural chemical products from unfair competition of unauthorized disclosure of information on these products. - Growing backlog of pending patent applications and examination, highlighting the need to fully implement CAFTA-DR obligations with respect to patent term adjustment, The report’s assessment of Dominican Republic during the last two years has highlighted the lack of an organized and coordinated effort towards significantly improving the country’s system for IPR protection. The accession to the CAFTA-DR treaty was an important step forward towards updating the country’s IP regulation, but its implementation has been rather slow.
  10. 10. 2012 Position: Watch List 2013 Position: Watch List Improvements: - Enforcement efforts that led to temporary closures of stores selling pirated music and movies. - Decline in the piracy of satellite television signals. Concerns: - Increase in fees charged for applying for and maintaining patent rights and plant variety protection in Ecuador. According to the report: “these exorbitantly high fees create a disincentive for rights holders and negatively impact the operation of the Ecuadorian patent system”. - Widespread piracy and counterfeiting. The need to establish the specialized IPR courts required under Ecuador’s 1998 IPR law. Lack of protection for pharmaceutical and agricultural chemical products from unfair competition of unauthorized disclosure of information on these products. As the report accurately notes, the increase in Official Fees for patent and plant variety procedures seems to be a deliberate measure to disincentive rights holders. It is worth noting that this increase in fees is only aimed at foreign applicants and multi-national corporations. This will surely impact negatively the country’s industries, since most of the current patentable R&D is conducted by these multi-national and foreign corporations.
  11. 11. 2012 Position: Watch List 2013 Position: Watch List Improvements: - Continued coordination of IPR enforcement efforts in Guatemala. Concerns: - A significant down in overall prosecutions compared to the previous year. - Lack of information about any successful prosecutions under the 2011 law strengthening penalties against the production and distribution of counterfeit medicines. Trademark squatting, lack of resources and government use of unlicensed software. Wide availability of pirated and counterfeit goods. Deficient operation of the judicial system and need for efforts to continue to improve enforcement efforts.
  12. 12. 2012 Position: Watch List 2013 Position: Watch List Improvements: - Accession to the Madrid Protocol. - Adoption of guidelines for protection of pharmaceutical test data and clarification of the scope of its system for addressing patent issues expeditiously. Concerns: - Widespread availability of pirated and counterfeit goods and inadequate IPR enforcement. - Increased but inefficient coordination among government officials for criminal enforcement of IPRs. - Need to devote additional resources, bring more IPR prosecutions and impose deterrent penalties. - Lack of ex officio power for customs officials to prosecute infractors. - Weakness of the country’s copyright regime. - Mexican authorities now only take action against transshipments of suspected infringing goods if there is evidence of “intent for commercial gain” in Mexican territory, which is very difficult to prove. The United States strongly urges Mexico to revert to previous policy that allowed for the interception of potentially dangerous counterfeit goods in transit to the United States and other countries. - The need for the Mexican Senate’s ratification of the Anti-Counterfeiting Trade Agreement. Mexico, being one of the US’ most important commercial partners, is always subjected to a very high standard regarding its system for IPR protection. The country has a very dynamic IP market, highly interconnected with the US market. The domestic PTO, the IMPI, has conducted notable efforts towards updating its online platforms and is becoming increasingly efficient in its case management. However, the need for further improvement remains, especially regarding enforcement efforts against widespread piracy and counterfeiting.
  13. 13. 2012 Position: None. 2013 Position: Watch List Monitored under Section 306 Improvements: - Political interest in finalizing the Memorandum of Understanding (MOU) with the United States (the country failed to complete negotiations to renew the expired MOU). - The creation of the National Directorate of Intellectual Property. Concerns: - Inefficient judicial system and rampant piracy and counterfeiting. Need to improve enforcement efforts internally and at the border. Need to improve cooperation with Brazil and Argentina in cross-border enforcement of IPRs. Need to improve the domestic patent system. Lack of protection for pharmaceutical and agricultural chemical products from unfair competition of unauthorized disclosure of information on these products. Paraguay is a country in the process of organizing its domestic system for IP protection. The recent creation of an independent agency (PTO) for management of IP cases and the increased international cooperation on IP issues show positive trends for the country’s IP market.
  14. 14. 2012 Position: Watch List 2013 Position: Watch List Improvements: - None mentioned. Concerns: - Widespread availability of counterfeit and pirated products. - The need to devote additional resources for IPR enforcement, improved coordination among enforcement agencies, enhance its border controls, and strengthen its judicial system. - Needed steps to implement its obligations under the United States-Peru Trade Promotion Agreement regarding the prevention of government use of unlicensed software, and likewise urges steps to implement obligations with respect to protections against piracy over the Internet, which continues to be a growing problem. - Need to clarify its protections for biotechnologically-derived pharmaceutical products Although the report doesn’t include any improvements for Peru’s situation regarding IPRs, it must be noted that the country has one of the most organized PTOs in the region, and has eliminated many unnecessary formal requirements to ease IP procedures for IP practitioners in the country.
  15. 15. For more information on Latin American IP go to our Knowledge Center at: www.brlatina.com

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