9:06 AM Jul 14, 1993
LATIN AMERICA GIVES IN TO US PRESSURE ON PATENT RIGHTS
Buenos Aires July (Carlos M Correa) -- Important changes are taking place in intellectual property legislation in Latin America. In parallel with the implementation of new macroeconomic policies and the liberalization of trade and foreign investment regulations, many Latin American countries have modified or are in the course of modifying intellectual property laws, in particular in the area of patent rights. Such changes, however, are not the result of new perceptions on the costs and benefits of intellectual property. A major force behind them are the retaliatory threat and the political pressure exerted by the US Government. Under Section 301 of the US Trade Act, powerful American lobbies have been given the opportunity to force changes in national legislations in developing countries. The most affected have been those countries heavily indebted with foreign banks or directing most of their exports to the US market. Chile amended its patent law at the beginning of 1991, after a turbulent process. Mexico adopted in June 1991 a "Law of promotion and protection of industrial property" where under a new set of rules was established for patents, trademarks, utility models, industrial designs, geographical indications and "industrial secrets". The Andean Group of countries (Bolivia, Colombia, Ecuador, Peru and Venezuela) introduced a new "common regime" on industrial property in February 1992 (Decision 313 of the Commission del Acuerdo de Cartagena). Under the referred new regulations, product patents for pharmaceuticals were introduced. Thus, a major objective of the US government and industry was achieved. However, with the exception of Mexico (which would become a member of the North American Free Trade Agreement), the reforms did not give full satisfaction to Americans. Chile and the Andean Group of countries did not confer retroactive protection (the 'pipeline' solution), while the latter established a wide range of compulsory licenses, including for abuses of a dominant position in the market. The reform of the patent legislation in the Andean Group of countries has also addressed issues relating to trade, particularly in connection with "parallel imports". The Andean Group regime includes, in this regard, the doctrine of international exhaustion of rights. Reforms are also under consideration by the Parliaments of Argentina and Brazil. The majority of people's representatives resists the US pressures to amend the patent laws. They fear the impact of such reforms on the access to technology and on the industrialization process in their countries. They are also aware that patent protection of pharmaceutical products would lead to price increases of medicines and thus worsen social and fiscal problems. (In Argentina, a Parliamentary Commission has issued a declaration to the effect that they would change the intellectual property laws at the same time as when the EC and US ended their subsidies on agriculture) Unlike changes introduced in many Latin American legislations during the 1970s, the new wave of reformism is clearly setting forth higher standards of intellectual property protection. A major paradox in this process is that while market freedom is actively promoted in the region, patent laws would create or strengthen monopolistic rights for the benefit of a few transnational corporations. Argentina, Brazil, India are among those developing countries that still believe that their intellectual property system is to be decided by their own nationals, and not by a Trade Office of a foreign country. The likely impact of the changes sought by the United States are so dramatic, particularly as regards to access by a large segment of the population to drugs, that their resistance should be supported by all concerned with human health and life. US President Clinton recently warned the US pharmaceutical industry: "We cannot have profits at the expense of our children" (The Wall Street Journal, 17 February 1993). Low-income people and the poor of the world, certainly have at least the same right than American children to be protected against the lobbies and pricing policies of patent-based pharmaceuticals companies. (* Correa is Director, Revista Del Derecho Industrial Buenos Aires, Argentina, and wrote this article for the Third World Economics)