You may ask: why is Venezuela in the Priority Watch List?

Following yesterday’s news, Ricardo Antequera Parilli of Estudio Antequera Parilli & Rodriguez, has written to the blog with the following points:

“a) Despite of the Declaration of the Minister of Commerce by which it was informed that two Bayer patents, related to moxifloxacin were annulled, the fact is that the annulment procedures have been recently opened on November 23, 2009 through the resolutions issued by the same Minister;

b) In his resolution the Minister of Commerce notified Bayer that some irregularities had been found in the patent files Nos. A54057 and A58097. Hence, Bayer has to submit their defenses within the 15 working days. This time frame ends on December 14, 2009;

Regarding patent No. A54057, the Minister stated that they found that it was granted ignoring the corresponding procedure, among other facts. According to the Minister, even though the patent was examined and granted back in 1995 when Andean Community Decision 344 was supposedly to be in force (it allowed pharmaceutical patents), the application was filed in 1992 under the Industrial Property Act of 1956 which does prohibit pharma related patents;

As for the patent No. A58097, that claimed Convention Priority from DE 19546249.1, the Minister also stated that they found that it had been granted ignoring the corresponding procedure, since the claimed molecule lacks of novelty and non-obviousness.

According to the Venezuelan Administrative Procedures Act, decisions may be annulled when issued under absolute ignorance of the corresponding procedure, and hence, they can be reviewed ex officio. However, we can not find an absolute oversight of the procedure in the cases of patents A54057 and A58097, as informed by the Minister.

Also, it seems that the Minister is applying the Andean Community Decisions on a convenient form when he said that patent A54057 had to be examined under the law in force at the time the application was filed. However, recently the Venezuelan Patent Office started rejecting patent applications filed under Andean Decision 486, but which were examined in 2009 under the reinstated Industrial Property Act of 1956 which prohibits patents over pharmaceutical products.

Moreover, it seems very strange how this particular case is being prosecuted, since the Venezuelan PTO has nullity actions pending decision since 2000.”

There is not wonder why Venezuela remains in the Priority Watch list in 2009.