Current patent system
On April 22, 2006, Venezuela withdrew from the Andean Community of Nations, a customs union comprising the South American countries of Bolivia, Colombia, Ecuador and Peru. However, Andean decisions were still in force until September 2008, when the Venezuelan PTO (SAPI) officially ordered the reinstatement of the Venezuelan Industrial Property Law issued in 1955. From that date, the rules established by the Andean Community (decisions and resolutions) were no longer applicable and SAPI ceased to apply Decision 486 for the registration of patents.
The enforcement of the 1955 law implies the elimination of legal protection for different products, particularly in the chemical and pharmaceutical sectors. Specifically, according to Article 15 of the Act of 1955 ”beverages or food, whether for humans or for animals; medicines of all kinds; medicinal or pharmaceutical preparations and chemical preparations, reactions and combinations” are not patentable.
Actually, SAPI has not granted any patent of invention in recent years (since 2000, according to the World Intellectual property Organization, and since 2003 according the Ibero-American Network on Science and Technology Indicators).
However, even in view of this unfavorable scenario, inventors and companies are still applying for patents in Venezuela in order not to lose their priority rights with a view to future changes in the law. Said changes are necessary to adapt the Venezuelan legal framework to the TRIPS Agreement, of which Venezuela is part, that permits pharmaceutical and chemical patents. Moreover, in 2012 the entrance of Venezuela to Mercosur (sub-regional bloc comprising Argentina, Bolivia, Brazil, Paraguay, Uruguay and Venezuela) was ratified, and Venezuela committed to adapt laws to the Mercosur framework by July 31, 2016.
Until recently, most patent applications remained pending in Venezuela, with SAPI not issuing its final decision to grant or reject after all the procedural steps had been taken. Recently however, SAPI started to reject patent applications.
A reconsideration appeal may be lodged against the refusal of a patent application within 15 working days of the decision’s publication in the official bulletin. A further appeal against the dismissal of a reconsideration appeal may be lodged within 15 working days before the Minister of Commerce. Finally, an appeal against an unfavorable decision issued by the Minister may be lodged before the Supreme Tribunal of Justice.
It should be pointed out that, although it can take SAPI several years to resolve an appeal against the refusal of a patent application, the filing of the appeal is a useful administrative procedure in order to keep a patent application alive in Venezuela with the expectation that the current situation will change in the near future.