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 the State of IPR in Venezuela

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. The Report reviewed the state of intellectual property rights (IPR) protection and enforcement in U.S. trading partners around the world.   After extensive research and analysis, Venezuela remains one of eleven (11) countries on the priority watch list for 2016. 

The Report indicates that the combination of Venezuela’s formal withdrawal from the Andean Community, the reinstatement of its 1956 Industrial Property Law, provisions set forth in Venezuela’s 1999 constitution, and international treaty obligations still in effect has created legal ambiguity for IPR in the country.  Venezuela’s Autonomous Intellectual Property Service (SAPI) has not issued a new patent since 2007, and has substantially increased patent filing and maintenance fees since May of 2015.  Brand owners further report that SAPI regularly approves and publishes applications for trademarks that are similar or nearly identical to registered marks, and that trademark opposition procedures that do exist to combat these issues are slow and ineffective.   Additionally, Venezuela lacks an effective system for protecting against the unfair commercial use and unauthorized disclosure of data generated to obtain marketing approval for pharmaceutical products. 

Venezuela also continues to struggle with widespread counterfeiting and online piracy.  In the past year, infringing copies of movies found to be contributing to online piracy were traced back to unauthorized camcording in Venezuelan theaters.  In spite of these problems, prosecution of IP crimes is rare and penalties in place are insufficient to deter counterfeiters.  In view of these issues, The Property Rights Alliance’s 2015 Intellectual Property Rights Index ranked Venezuela 125 of the 129 countries evaluated and the World Economic Forum’s 2015-2016 Competitiveness Report ranked Venezuela last among all 140 countries evaluated with respect to IPR protection.  Despite these consistently low rankings, Venezuela has made no effort to improve IPR in the country in 2015 and as such remains on the priority watch list for the 2016 Special 301 Report.      

This report was written by Lisa Mueller and Rikki Hullinger.