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Wednesday 2 December 2009

Patricia Covarrubia

Venezuela to examine all pharmaceutical patents

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The forum titled "The patents as element of exclusion and limit to the health of the town", which was lectured in Venezuela, saw the head of different institutions united. Last Thursday, the Venezuelan Minister of Commerce, Eduardo Samán, the Servicio Autónomo de la Propiedad Intelectual (SAPI)’s director Arlen Piñate and the Cámara de Medicamentos y Afines (CANAMEGA)’s president , Jorge Rivas, declared their views regarding pharmaceutical patents.

Eduardo Saman, declared that “all pharmaceutical patents are to be examined to see if they have fulfilled the corresponding proceeding”. To this view, Jorge Rivas added that the SAPI needs to scrutinize all pharmaceutical patents that have been granted under Andean Community (CAN) Decision 311, 313, and 344.

The situation comes after two Bayer’s pharmaceutical patents were annulled by the government. As reported early in this blog here and here, the procedures under which these two patents were annulled caused controversy.

The crucial point of this is based on the fact that there is not clarity on how the examination is going to be done. In one hand, the Industrial Property Act of 1956 prohibits this type of patents. In the other, the Andean Declaration 344 does allow so. Venezuela withdrew from the Andean block in 2006 (a member since 1973). So that, the debate is: will it be scrutinized under the law in force at the time the application was filed or at the time it was examined?

As observed in the Bayer case, the government has a convenient way to declare that certain pharmaceuticals patents are ‘illegal’. Thus, it seems that if a pharmaceutical patent was filled or examined while the Industrial Property Act of 1956 was in force, then the patent will be annulled. From this statement, one can conclude that the Andean Community Declaration appears not to have existed! Or, is it a case that the Venezuelan government is not recognising general principles of law such as ‘non-retroactivity’ and the ‘protection of legitimate expectations’?

Patricia Covarrubia

Patricia Covarrubia