The right to a hearing – more news from Ecuador and the ‘compulsory licenses’ Decree

Surely the first part of the title does not sound quite IP related. However, following Ecuador news in the issue of ‘compulsory licenses’, it was the only principle of law that cross my mind. Yesterday, the Pharmaceutical Industry Research (IFI in Spanish) has accepted the Government’s decision to regulate pharmaceutical patents, considering it to be democratic. However, it its statement there were two issues that are relatively attention-grabbing.

Firstly, IFI agrees that patents prevent the production of cheap medicines but needless to say, it emphasises that patents are the means to achieve balance between innovation and public interest. Point that I agree with.

Secondly, IFI regrets for not having been invited to participate in the process. I completely disagree with this action. Isn’t it a general rule that persons whose interest are visible affected by a decision taken by a public authority must be given the opportunity to formulate their own views? I believe that this right must be respected even if the relevant proceedings were merely administrative proceedings. This procedure clearly affects the Pharmaceutical Industry. Specifically, those 177 transnational companies which control 82% of the medicines industry in the country.

It is my understanding that the Decree is in line with the Ecuadorian Constitution and international agreements, and that it incorporates requirements of the WTO’s TRIPS Agreement and the Andean Community legislation. However, is it just this tango dancer who is moving alone and seeing a violation of a well developed principle of law?

Nevertheless, we need to wait for clarification about the process. Will the Instituto Ecuatoriano de la Propiedad Intelectual (IEPI) notify the request to the owner of the patent concerned? Article 5 of the Decree establishes so. However, will the Institute invite the owner of the patent to submit any observations on the said request? In the same vein, as the EPI makes the first instance decision, shall a civil court have the right to review whether the procedure was correctly followed?

I believe that the arguments of the patentee shall be taken notice of. The reason is that, in one hand, it will be helpful in deciding the terms and conditions for granting such a licence and on the other hand, it will be helpful in avoiding the abuse of the provision.