An Overview of the USTR’s 2016 Special 301 Report on the State of IPR in Argentina

In this post, the BRIC Wall Blog continues to examine the Office of the United States Trade Representative (USTR) 2016 Special 301 Report (Report) released on April 12, 2016.  Following extensive research and analysis, the Report placed eleven (11) countries on the priority watch list and twenty-three (23) on the watch list. Argentina remains on the Priority Watch List in 2016.

The Report indicates that a major challenge in Argentina is the lack of effective IPR enforcement by the national government. Argentine police do not take ex officio actions, prosecutions frequently stall, and cases may languish in excessive formalities. Furthermore, even if criminal investigations reach final judgment, sentences are not sufficient to deter future infringement.

Argentina also continues to struggle with rampant counterfeiting and piracy. The notorious La Salada market in Buenos Aires is one of the biggest open-air markets in Latin America offering counterfeit and pirated goods. The city of Buenos Aires attempted to combat increasing lawlessness in the market in 2014, but received little assistance from the national government and as such the efforts were unsuccessful. In addition, optical disc copyright piracy is widespread and internet piracy is a growing concern in the country. In several content areas internet piracy rates are approaching 100%. For example, the Argentine-run market Cuevana, which offers pirated movies and TV shows, expanded in 2015 to include a mobile streaming application. The Report also indicates a problem with widespread use of unlicensed software by both private enterprises and the Argentine government. In spite of these issues, criminal enforcement for online piracy is nearly nonexistent.

Argentina also faces a number of ongoing challenges to innovation in the agricultural, chemical, biotechnology, and pharmaceutical industries. Argentina fails to provide adequate protection against the unfair commercial use and unauthorized disclosure of undisclosed test data generated to obtain marketing approval for pharmaceutical or agricultural products. Furthermore, Argentina only provides patent protection from the date of grant of the patent and offers no provisional protection for pending patents. There is a substantial backlog of patent applications, which causes long delays in registering rights. In addition, Argentina requires that the process for the manufacture of active compounds must be reproducible and applicable on an industrial scale in order to be patentable. Resolution 283/2015, introduced in September 2015, limits the ability to patent biotechnological innovations based on living matter and natural substances, including biologics. These measures limit the ability of companies investing in Argentina to protect their IPR and appear inconsistent with international practice.

In spite of these issues, the report states that the United States is hopeful that the recently elected government of President Mauricio Macri will engage more productively to improve the protection and enforcement of IPR in Argentina, thereby creating a more attractive environment for investment and innovation.

 

Written by Lisa L. Mueller and Rikki A. Hullinger.

An Overview of the USTR’s 2016 Special 301 Report

On April 12, 2016, the Office of the United States Trade Representative (USTR) released its 2016 Special 301 Report (Report). The Report is an annual review of the state of intellectual property rights (IPR) protection and enforcement in U.S. trading partners around the world and is conducted by the Office pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988, The Uruguay Round Agreements Act, and the Trade Facilitation and Trade Enforcement Act of 2015 (19 U.S.C. §2242).

The Report identifies a number of wide ranging concerns, including: (1) the deterioration in IPR protection and enforcement in several trading partners; (2) reported inadequacies in trade secret protection in China, India, and elsewhere; (3) troubling “indigenous innovation” policies that may unfairly disadvantage U.S. right holders in markets abroad; (4) the continuing challenges of online copyright piracy; (5) measures that impede market access for U.S. products embodying IPR and U.S. entities that rely upon IPR protection; and (6) other ongoing systemic IPR enforcement issues in many trading partners around the world.

During the 2016 Special 301 process, seventy-three (73) trading partners were reviewed. Following extensive research and analysis, eleven (11) countries were placed on the priority watch list and twenty-three (23) on the watch list. The countries on the priority watch list and watch list are as follows:

Priority Watch List

Algeria

Argentina

Chile

China

India

Indonesia

Kuwait

Russia

Thailand

Ukraine

Venezuela

Watch List 

Barbados

Bolivia

Brazil

Bulgaria

Canada

Colombia

Costa Rica

Dominican Republic

Ecuador

Egypt

Greece

Guatemala

Jamaica

Lebanon

Mexico

Pakistan

Peru

Romania

Switzerland

Turkey

Turkmenistan

Uzbekistan

Vietnam

In the next series of posts, the BRIC Wall Blog will examine in detail the Report’s findings on the countries included on the priority watch list and watch list.

This post was written by Lisa Mueller.