Friday, 4 July 2008

Venezuela’s Patent Law

This item is submitted by Richard N. Brown (De Sola Pate Brown), as a guest blogger. Richard writes:
"My 1963 edition of the Encyclopaedia Britannica says the following about Tropical Medicine: “Diseases of tropical climates reach their highest incidence and present the greatest problem where high temperatures and heavy rainfall prevail at all seasons. Such conditions favour the multiplication and longevity of man’s enemies and competitors – rodents, insect species that transmit disease, parasitic worms with free-living stages in the soil, and infective organisms that pass part of their lives outside the body of the host. The tropics also are characterized by the prevalence of diseases spread by filth and overcrowding, unsanitary habits and lack of sanitation marks of a low socioeconomic status. In this they reveal the characteristics of the so-called underdeveloped regions: low standard of living, illiteracy, high incidence of disease and short life expectancy, an unending cycle of proverty, ignorance and disease. In fact, the economist’s “underdeveloped areas” virtually coincide geographically with the tropics, suggesting a causal relationship between tropical environment and slow economic progress”.

I do not have the current Britannica but no doubt it is more politic in its choice of words. My 1963 set of the Britannica is bound in green Morocco with gilt edges and is very handsome but is silent about Tropical Law.

A possible definition of Tropical Law “is the branch of law that deals with clear legal provisions which are rarely, never, or sporadically employed, and other unusual legal problems that occur most often- but not uniquely in tropical regions”.
Venezuela’s patent law appears to meet this definition of Tropical Law. Moises Naim a former Minister of the Venezuelan Government once quipped – after he left office - that in Venezuela it was necessary to put quotation marks on titles like “Minister of Justice”, “Minister of Communications” and “Minister of Defense”. The point for those who do not live in the tropics is that they should not assume that the patent or trade mark they file will provide the same protection as in their home country, or that they will not face peculiar problems in the prosecution or grant phases. Another problem is enforcement or the lack of effective enforcement in the Tropics.

Venezuelan Courts are extremely formalistic and do not examine the facts with much interest or attention The US Court of Appeals for the Third Circuit examined the procedures applied in Venezuelan Civil Courts, while considering whether to retain jurisdiction over an admiralty suit involving the collision of two U.S tankers in Venezuelan waters and concluded:

… the more important question is whether the relinquishment of jurisdiction would best serve the ends of justice… However, the relinquishment of jurisdiction could result in serious detriment to Mobil’s and Socony´s courses of action. It would relegate the libellants to a foreign forum in which the procedural remedies are far less conducive to the fair administration of justice than those available under our admiralty rules. The mode of trial, the lack of trial, the lack of adequate pre-trial procedures, and limitation on the manner in which expert testimony may be offered do not comport with our concepts of fairness”.

We cite the case to illustrate differences between US and Venezuelan court procedures, and to make the point that the legal remedies vary greatly from country to country.

Venezuela’s first’s patent law “Ley sobre Patentes de Invención, mejoras e introducción de nuevos ramas de la Industria”, was enacted by Venezuela’s Congress on April 19, 1842.

Despite the fact Venezuela has had a patent law on the books for over 165 years, the author is not aware of any Venezuelan court decision that has ruled a Venezuelan patent is valid and enforceable. Thus Venezuela appears to be a country with a patent law but zero enforcement. Unenforced laws are one symptom of Tropical Law. One reason for the lack of enforcement is relatively few Venezuelan persons file patents and as there is no enforcement few if any Venezuelans have found inventing is a way to fame and fortune. Although Abraham Lincoln said “The patent system adds the fuel of self interest to the fire of genius” the lack of enforcement keeps the fuel of self interest separated from the fire of Venezuelan genius.

In the past they have been some utility in obtaining Venezuela patents. Procter and Gamble sued three infringers of P & G´s diaper patents. The cases were settled by the infringers withdrawing the diapers from the market but P & G was not able to obtain a judgment of infringement.

To further complicate matters it is useful to review the history and status of Venezuela’s current patent law. The last Venezuelan law governing patents that was approved by The Venezuelan Congress was the 1955 National Industrial Property Law. This law was, as are most Latin America’s IP laws, a combined patent and trademark law – that dealt with the difficult conceptual problem of granting property rights to immaterial intellectual property. The 1955 Act did not allow for pharmaceutical patents. Due to pressure from U.S pharmaceutical companies – Venezuela and the, other member countries of the Andean Pact – Peru, Bolivia, Colombia, Ecuador, and Venezuela all members of the Andean Pact decided to circumvent the messy job of passing legislation that would allow for pharmaceutical patents by issuing a Community Decision 85 (Never accepted by Venezuela) and subsequently Decision 486 the current law. The decisions of the Andean Pact had the force of treaties and as such they were supranational law.

However, Venezuela withdrew its membership in the Andean Pact leaving the ownership of patents and trademarks in an uncertain statu,s a clear example of Tropical Law, or perhaps common law. The Venezuelan PTO pretends that Decision 486 remains in effect. This may be the necessary use of Tropical Law since application of the still effective 1955 Act would create chaos. The figures on patents granted by Venezuela published by the British Government show that in 2003 one patent was granted and none in the next four years.

Perhaps AIPPI, AIPLA, PTMG, and other groups should work with Universities in the Tropics to prepare courses and course materials on the Patent System and the Public Domain to convince engineers in Tropical Law countries to invent and file patents. Jeremy Phillips once mentioned that in Scotland inventors are National heroes. This is a story that should be told in Tropical countries.

The Government of Venezuela is extremely hostile to patents. A visit to the PTO website provides a link to Aporrea, a group that has blogs hostile to the patent system, one of the blogs claims that patent’s are responsible for the deaths of millions of children.

The Venezuela Government describes itself as implementing the socialism of the 21st Century. Perhaps they should reflect that the patent system is the perfect marriage of the capitalist and socialist systems, capitalism for 18 years then the socialism of the public domain for eternity.

There are many other instances of Tropical Law that should be brought to the attention of the readers of this blog. Perhaps “Tropical Law” can be a feature in the future with contributions from all parts of the world".

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