Intellectual Rights 8
The content of the Intellectual Rights collection ranges from transcripts of new national and supranational normative provisions, their commentary and exegesis, as well as information prepared on judicial and administrative decisions of various countries - including Argentina in particular -, to works of doctrine divided between those that penetrate into philosophical and technological strata and those that delve into a specific topic of legislation and jurisprudence, encompassing its historical evolution, the current state and its discernible future evolution. The Intellectual Rights collection has to its credit works that, due to their depth and focus, satisfy the substance of legal research, and that have deserved to be cited by those who advocate for the protection of rights and in judicial decisions on the matter. There is thus a fruitful exchange, since the judges' sentences inspire the work of the authors and their studies are useful for the work of the judges and that of the legal professionals. Pedro Chaloupka
The author points out the difficult and complex interpretative work of the Courts to resolve the controversies arising from the contradictions between the national norms and administrative practices vis-à-vis the obligations assumed in the international treaty TRIPs. The manner in which these conflicts are resolved will set the trend as to whether the national legal order will protect creativity and innovation, since intellectual property rights guarantee freedom. He deals with specific aspects of the protection of undisclosed data requested by the authorities as a requisite to approve the marketing of products –which is different and independent from the protection of patents of invention– data protection that demands that each applicant performs his own tests, but that has been designed in a form that does not comply with TRIPs. In a similar manner, the exclusive marketing rights which must be applied according to the Treaty, during the transition period, before the patents are granted, are not being observed. The deficiencies of the norms regarding uses not authorized by the patentees, the recent jurisprudence on the application of the new regime, as well as preliminary injunctions are also commented. The author concludes that due to the federal nature of the norms involved, the controversies will have to be resolved by the Supreme Court, and it is also possible that they are dealt with according to the World Trade Organization Dispute Settlement process. Two of these conflicts, the one related to market exclusivity rights during the transition period and the degradation of data protection for the marketing approval of crop protection products have already been submitted to the WTO dispute procedure. The author sustains that the constitutional guarantee to protect intellectual rights should materialize.
The author explains the evolution of the Brazilian patent law up to the present modern law, which results in an incentive to investments. Only in the pharmaceutical area, including the research field, investments amounting to approximately US Dollars 2 billion from 1997 to the end of the decade are expected. He describes the main features of the industrial property law in force as from May 15, 1997, and highlights, among the outstanding items, the possibility to patent both chemical, pharmaceutical and food products, as well as the processes by which they are obtained. Transgenic microorganisms may also be protected. He also highlights the reduction of bureaucratic barriers for the filing of patent, trademark and design applications, and the viability of parallel imports of patented products only if their marketing is authorized by the right holder.
The author analyses the patent provisions of the new Brazilian industrial property law, which entered into force on May 15, 1997, vis à vis the provisions of the TRIPs Agreement, and the new jurisprudence. He points out that in view of the way the TRIPs Agreement was approved and promulgated in Brazil, which may also be the case of other Latin American countries, TRIPs was incorporated to the Brazilian legal system on January 1, 1995, revoking those provisions of the law, then in force, which did not conform thereto, according to the principle: “lex posterior derogat priori”. He deals with the controversial patent provisions of the new law and the consequences of TRIPs being in force more than two years before the law was enacted, such as, the possibility of extending the term of protection (from 15 to 20 years) of all the patents in force on January 1, 1995 and those granted after that date until the entering into force of the new law, which finally adopted TRIPs patent term of 20 years. He also comments on the term of protection of utility model patents, exclusions from patentability, compulsory licenses, parallel importation, damages for the violation of patent rights, some administrative changes brought by the new law, and the recent jurisprudence. He concludes that the standards of protection have certainly improved and, therefore, the focus should now turn to the means of enforcement.
Economic and regional integration phenomena have been a characteristic feature of the last decades. The constitution and consolidation of the European Community, the nafta, the Andean Pact and the Mercosur are clear examples of such phenomena. The author examines the Free Trade Treaty signad by Colombia, México and Venezuela (also known as “G-3”) in relation to one of the topics always present and in force in most bilateral and multilateral agreements: intellectual property rights. The author analyses in the text the copyright and related rights system as well as the industrial property system included in the mentioned treaty. In the first case, the author deals, for instance, with rights of performance and players, phonogram producers and those belonging to broadcasting entities. As regards industrial rights, the relevant sections of the G-3 are described: trademarks, denominations of origin, geographic indications, industrial secrets, protection of data of pharmachemical or agrochemical goods, new plant varities production and transfer of technology. The author finishes with a brief analysis of the section devoted to compliance with intellectual property rights included in the agreement and regrets that the parties to the G-3 missed the opportunity to include a section related to enforcement of patents.
The territoriality principle that governs industrial property rights prevents a State to pursue trademark infringement beyond its borders. Therefore, countries not adequately fighting trademark piracy flood the Argentine market with products that infringe intellectual property rights of their legitimate holders. The author takes this problem as the basis to develop his thesis. In order to discourage the import of foreign products violating intellectual property rights, the author affirms, first, that certain rules of the Customs Code be regulated. These rules would become an effective bar against the import of products bearing illegitimate trademarks. Secondly, he explains the usefulness of the innovative precautionary measures and its application by case law. Finally, he proposes the urgent regulation of the measures in TRIPs to fight piracy at the borders.
AUTHOR’S RIGHTS IN ARGENTINA After a reminder of the circumstances that brought about the enactment of Argentine law nº 11.723 on intellectual property rights, the author makes a brief but complete summary of its content. He, then, refers to the regulatory decrees, the amendments to the original text, and to the international treaties which Argentina has ratified. He comments on the Courts’ decisions and makes a reference to the main professional associations in the country, and the legal system to promote intellectual works.
