The Argentinean government recently filed before the Congressional Agriculture committee an official project to amend the Seed and Phytogenetic Plant Breeding Law (Law 20.247), which dates from 1973.
The Seeds Law of 1973 does not take into consideration the new productive realities, as well as technological advances in the fields of research, seed production and genetic improvement. With this project, the Argentinean Government attempts to balance the rights of producers and patent owners and figure out a way to stop the abuse of not only monopolistic practices but also the farmers´ privilege.
This project aims to integrate equitably the needs of all parties, giving certainty to the producer regarding the method of payment and price of the seeds, keeping exempt from payment for the exercise of own use to the vast majority of producers (small producers, family farms and native communities) promoting the development of germplasm, innovation and incorporation of technologies and providing effective tools for control, overseeing and transparency of the seed market.
One of the most important issues to be addressed is the payment of royalties to patent owners at the moment of the purchase of seeds, without any further claims, among other issues. All those farmers who have a turnover/profit of less than one million eight hundred Argentine’s pesos (1,800,000 ARP is 119,514 USD rate date November 2, 2016) are exempt from paying royalties to the patent owner of the seed they used in their production.
Also, this proposal establishes that large producers would have to pay additional sums for three campaigns in terms of intellectual property if they maintain the same crop area. Should a fourth campaign takes place, they would be exempt from the payment if they have not expanded the number of cultivated hectares. Provided the producers increase their cultivation area, they should pay an extra amount.
As well, when a protected or unprotected plant variety containing some form on which any intellectual property right is infringed, the owner of said rights could not object to the use of that variety for the purposes of experimentation or obtaining a new phytogenetic plant breeding is used, this may be registered before Argentinean National Register of Ownership of Cultivars.
Another novelty introduced by the government in this reform project is the allowance of unrestricted use of seeds to native communities and all others who promote family farming as long as the acquired seeds are used on the basis of barter or exchange or are sold within the traditional community. The only condition to access to these exceptions is that they must be registered in the National Register of Family Agriculture (RENAF).
With all these new provisions, the Argentinean government hopes to help avoid claims of intellectual property issues from companies who generate genetic advances in seeds but without implying an economic suffocation for small producers.
In addition, the Agrarian Federation Argentina (FAA), an organization that gathers and defends the rights of small and medium agricultural producers, also presented their own proposal for the reform of Law 20.247.
In said project the FAA proposed not only the free use of seeds up to 1,500 soy or wheat tons (crops planted by the 80% of Argentinean producers), which would benefit most small and medium producers in the country, but also reduce the abusive and monopolistic behavior of some parties who intervene in the production chain and the strengthening of control´s agent. This project as well as the Argentinean government´s project establishes the principle of exhaustion of intellectual property rights with the purchase of seeds. This point is rejected by seed companies producers.
To date, there have been no developments on the discussion of both draft reform to Law 20.247 in the Chamber of Deputies, what is known is that any possible reform of the Seed Law will be of high impact on farmers and multinational companies interest.
Sources (in Spanish only):
On May 24, 2016, the Argentinean Court of Appeals set a very important precedent in procedural matters admitting the Industrial Chamber of Argentine Pharmaceutical Laboratories (CILFA) as a voluntary third party in a patent rejection case. This Chamber gathers many national pharmaceutical laboratories and represents their rights.
This is one of a very few cases that Argentinean Court of Appeals acknowledged a third party in a patent case. Particularly, in the case Schering Corporation against the National Institute of Intellectual Property (INPI), judges declared the admissibility of CILFA as a third party in a rejection trial, without none of the parties had required CILFA intervention.
CILFA argued that the decision to be rendered in this case is of great interest to its members, evidencing that the granting of the patent requested by Schering could restrict the competition in the pharmaceutical market.
The admission of CILFA as a voluntary third party – on terms of the Argentine Procedural Code, art. 92, inc. 1) – in the mentioned case will allow entities, representing collective interests of some society sector in the local economy and/or society, to spontaneously appear in judicial cases where the interests of their members are involved.
Despite the arguments used by Schering and INPI on the judicial dossier in order to obtain the rejection of a third party intervention, judges Maria Susana Najurieta and Ricardo Guarininoni, members of the Chamber of the Court of Appeals, decided to admit the intervention of CILFA in the case.
Source: Case: “Schering Corporation against Instituto Nacional de la Propiedad Industrial over rejection of a patent, Case number 3514/2014, CCCF, Sala I”Read More
In May 2016, FDA sent the second warning letter to the Argentinian manufacturing medical device company. The FDA has sent letters to 14 different medical device manufacturers around the world, including the Argentinian F.P. Rubinstein and Co. from Córdoba Province as the only Latin American company.
In March 2016, the Argentinian Ministry of Health (ANMAT) issued the Good Manufacturing Practice certificate to this company for in vitro diagnostic medical devices. However, the FDA determined that the Good Manufacturing Practices have not been applied.
The FDA’s warning letter of May 2016 was a result of the inspection conducted in December 2015 in the Rubinstein’s Factory located in Córdoba, Argentina. “This inspection revealed that these devices, laser-powered surgical instruments, are adulterated due to the fact that the methods used in, or the facilities or controls used for, their manufacture, packing, storage, or installation are not in conformity with the current Good Manufacturing Practice requirements of the Quality System regulation found at Title 21, Code of Federal Regulations (CFR), Part 820.”, FDA.
These violations include, but are not limited to, the following: “Failure to establish and maintain procedures for implementing corrective and preventive action; failure to establish and maintain procedures for validating the device design; failure to establish and maintain procedures to control environmental conditions, where they could reasonably be expected to have an adverse effect on product quality and failure to maintain device history records, among others”.
Consequently, according to the FDA, US federal agencies have also required to be notified of the issuance of warning letters so that they may take this information into account when considering the award of contracts. Additionally, premarket approval applications for Class Ill devices to which the Quality System regulation deviations are reasonably related will not be approved until such violations have been corrected. This new warning signal is truly significant, since the FDA had already sent a warning letter to Rubinstein. The FDA’s Staff visited the company premises a year before. In the recent letter, they highlighted that their previous noted violations remain uncorrected. The agency listed a long list of faults under the signature of the Director Robin Newman.
Finally, through this warning letter, a written communication was requested regarding the specific measurements to correct the observed violations, including a description of the steps to be followed in order to prevent these or similar violations. This communication shall also include documentation of the corrections and/or corrective actions that the firm has taken. If the firm’s planned corrections and/or corrective actions occur over time, they have to submit a timetable for completing the implementation of those activities. If corrections and/or corrective actions cannot be completed within fifteen business days, the company shall state the arguments for the backlog and include the time within which these actions will be completed. Moreover, a translation of documents that are not in English must be provided to facilitate their review.
Other recipients of the warning letters were five manufacturers of devices located in the UK, three in China, two in Germany, one in France, one in Italy and one in the Philippines.
This year seems to be important for industrial models or their US equivalent, “patent designs,” as the Supreme Courts of both the US and Argentina are issuing rulings on this area.
The U.S. case has not been decided yet but is causing great buzz because it involves several types of intellectual property rights including patent designs over the iPhone, which Apple claimed are infringed by Samsung.
A large amount of monetary damages were first established by a jury in California in 2012 consisting of $US 930 million but were afterwards lowered to $US 548 million in 2015 (of those $US 399 million corresponded to infringement of patent designs), as described here. In June 2016 the Argentine Supreme Court overturned a decision issue by the Court of Appeals on Federal Civil and Commercial Matters seated in the city or Rosario.
The case started in 2004 by Industrias Arial against the related companies Fundemap and B.C.O. SRL based on the infringement of an industrial model registered by the plaintiff in 2002 with the Argentine PTO (INPI) entitled “GNC reducer”.
Some of the drawings filed with the INPI and describing the scope of the protected design do so in the following way:
In first and second instances the judge found that the defendant infringed the industrial model and awarded almost 3 million pesos (equal to US$ 500,000 in 2013 when the Court of Appeal issued its decision).
Both rulings rejected the claim of invalidity brought by the defendant because the judged considered that it should have been promoted in a separate judicial action, which was repeatedly appealed by Fundemat.
The Supreme Court finally agreed with the defendant basing its ruling on the facts that industrial model applications are only subject to formal examination and there is no substantive examination carried out to analyze the novelty, originality and other requirements.
Industrial models are usually recorded by INPI within less than a month from their filing date but the disadvantage of that is that they only grant a weak presumption related to their validity, which is always determined by federal judges.
Now the case is going back to the Court of Appeals of the City of Rosario for a new ruling.
On September 14, 2016, the 15-year dispute regarding public access finally ended. The Argentine Congress passed the New Regulation to Access to Public Information decree no. 1172/2003.
Now that the new law has entered into force, anyone is entitled to request and receive from the state complete, adequate, timely and accurate information. On the other hand, the government will have 15 days to provide the requested information, with the possibility to extend the deadline by 15 days, but only once. Among other issues, the law states that if no reply is received in a timely manner, the applicant may claim administrative or judicial instance.
The amended regulation forces the three Powers of Government, the Public Prosecutor, companies, political parties, universities and trade associations that receive public contributions, to respond to requests for information raised by any citizen within a period not exceeding one month.
Among the pluses that the above regulation grants, it is highlighted the simple process proposed and the limited scope of exceptions. In these regards, the law includes information classified as secret, confidential or secret for reasons of defense or foreign policy. Also, any information that could endanger the functioning of the financial system; trade secrets, commercial, financial, scientific disclosure could harm the level of competitiveness.
The law also regulates the creation of an “Agency for Access to Public Information,” autonomous body that will work within the Executive Power , as well as, it also empowers the three powers to institute its own agency, whose operation should be according to the aforementioned Agency.
The enactment of this new regulation is an important step for Argentina in the field of access to public information. Argentina was, along with Bolivia, Cuba and Venezuela, one of the only countries in the region without a law on access to public information. In this connection, the Minister of Modernization, Andrés Ibarra said: “Today Argentina is located at position 54 in the world in terms of opening up public data. Access to information is a right, but our goal is to be one of the 10 most transparent countries in the world. ”
by Marta Garcia
The Argentine Patent Office (INPI) has recently issued Resolution P-56/2016 in order to speed up the granting procedure of those Argentinian patent applications for which an equivalent patent has been granted by a foreign patent office.
Resolution P-56/2016, which will enter into force on October 15, 2016, will revoke the provisions of similar resolutions P125/09 and P263/03, currently in force, to all Argentine patent applications, regardless of when they have been filed in the INPI. Resolution P125/09 was only applicable to patent applications filed up to May 22, 2009.
By means of Resolution P-56/2016 and with the aim of accelerating the granting process of Argentine patent applications, the examiners at the Argentine PTO are able to acknowledge the patentability requirements of novelty, inventive step and industrial applicability referred to the international prior art search for those patent applications having an equivalent granted patent in a foreign PTO.
In this manner, only Argentine prior art would be searched during the examination process and the patent application would be in a position to be granted with the proviso that
- the substantive examination stage has not yet started;
- the scope of the claims in the Argentine application is not broader than the scope of the foreign patent granted claims;
- there are no national documents affecting the patentability;
- the claimed subject matter is not excluded from patentability; and
- the foreign patent is granted by a PTO with similar patentability criteria to those of the INPI.
According to this, applicants can make use of resolution P-56/2016 and file a voluntary amendment of the pending claims adapting them to those of the granted counterpart patent. Applicants can also be invited by the INPI before the substantive examination to benefit from the resolution.
Resolution P-56/2016 establishes that, in those cases where applicants request voluntarily its application, the INPI must issue a resolution within 60 days from the request, meaning that the corresponding patent application will be prioritized over other applications in the examination process. This involves a change with regard to previous resolutions P125/09 and P263/03, where the corresponding patent application was not prioritized over other applications in the examination process: it remained in the same order of precedence and, at the moment of the examination, the amended claims equivalent to those granted in a counterpart patent, were taken into account by the examiner in order to speed up the granting process.
It should be noted that the claims must be adjusted to comply with the Argentine requirements, e.g., the set of claims can only have one independent claim and use claims are not allowed.
Additionally, the resolution establishes that the equivalent foreign patent must have been granted by a PTO with similar patentability criteria to those of the INPI.
Please click here to read Resolution 56/2016.
Please contact us if you need an English translation of Resolution 56/2016.
Breaking out of IP Isolation – Argentine PTO announces intentions to adopt the Patent Cooperation Treaty
By Moeller IP Advisors
Correction: Further to our post published on September 1, 2016 there is a correction to the statement made by Dr. Dámaso Pardo, newly appointed President of the Argentine PTO (INPI).
During the AAAPI conference, he mentioned joining the Patent Cooperation Treaty (PCT) in the near future.We apologize for the confusion.
No specific terms have been set to date, but Dr. Pardo said that Argentina’s President Macri is very interested in ending Argentina’s isolation regarding international matters.
Furthermore, Dr. Pardo described his plan, which focuses on three main ideas:
- Improve efficiency and modernization of the INPI;
- Have the INPI become better integrated with the rest of the world and
- Promotion and influence within the INPI.
In addition, thereto, Dr. Pardo announced the implementation of a new software provided by the OMPI and, apart from working on the digitalization of IP, he also wants to work on the training of examiners.
He hopes that through the implementation and success of these ideas the INPI will improve its services and after joining the PCT, could then be considered to become an International Searching Authority (ISA) in Latin America.
We will keep you informed of the further developments as they arise.
The Argentinian National Data Protection Department recently requested Uber to provide the information it collects to offer services in Argentina, the measures of protection applied and the destination of the data.
At the same time, Eduardo Bertoni, the Director National Data Protection Department, informed the public that Uber was collecting personal data of passengers as well as its drivers, including identity, current location and a number of payment methods.
Uber’s response was swift. Bertoni reported: “They not only answered our questions but also we received a visit from a representative of Uber International. Nevertheless, their response is being kept confidential. We cannot reveal too many details because it is an ongoing investigation.”
If violations of the Data Protection Law are found, Argentina’s legislation provides that the inspection body may impose penalties of fines up to $ 100,000 or the closure or cancellation of the file, record or database.
In this context, Uber may also have to face claims from the taxi drivers’ union as well as changes in procedure to accommodate government requirements if it wants to “drive safe.”
In a ruling of first instance dated February 15, 2016 in a case where the plaintiff had filed a complaint against the web site DeMotores.com, the judge rejected strict liability in the case of online intermediaries. DeMotores is a web platform dedicated to connecting people selling and buying used and new cars.
The plaintiff bought a stolen car through the web platform that had fake documentation, and in consequence claimed the website was liable and had to pay the corresponding damages.
Defendant DeMotores.com based its defense on the claim that it was not an intermediary in the transactions between the parties involved, as its main function was limited to publishing ads on behalf of those interested in selling a car, which could be seen for those interested in buying a car. DeMotores did not charge any commission on the transaction but only a fix fee for publishing the ad of the seller. In the present case, the judge analyzed whether or not the defendant had an active role in the commercial transaction actively participating in the selling operation or if it just had served as a classified ad and the communication between the parties was external, including the closing of the transaction.
The judge applied a case law dated October 28, 2014, decided by the Supreme Court in “Rodríguez Maria Belén c. Google s. daños y perjuicios” that created a judicial standard that could be followed in similar cases.
The Supreme Court rejected the application of an objective and automatic standard of liability on online search engines due to the fact that they do not create the illicit content.
Following this holding, the judge of this new case considered that the same standard was applicable to the other web intermediaries, not only to engines such as Google.
The first instance judge ruled that DeMotores.com could be guilty if the plaintiff were to prove the active participation and effective knowledge of the illegal transaction (fault or fraud), which did not apply in this case. Only under these conditions should web sites be declared responsible for the damages caused as a result of sales in their platforms involving fake products.
Source: www.pjn.gov.arRead More
Beginning in 2016, the practical importance of this modification to the code is relevant in the litigation area. Due to the fact that as a result, the recognition of equal treatment in the new Civil and Commercial Code, foreign owners or applicants of trademarks, patents and other IP rights litigating in Argentina will no longer have to comply with a security for costs.
The Argentinean Unified National Civil and Commercial Code entered in force in August 1, 2015. Among the many changes in the fields of civil and commercial law, it has introduced new regulations on Argentine private international law, including the principle of equal treatment of foreign nationals.
Before this modification, foreign individuals or companies litigating in Argentina could be subject to the preliminary objection, which a defendant in a court action was allowed to file if the plaintiff had no domicile or immovable property in Argentina.
Prior to this change foreign individuals or companies litigating in Argentina could be forced –upon defendant’s request– to post a bond to guarantee the payment of the legal costs if the complaint was dismissed.