Survey: Latin America: On the cusp of new technologies

Traditional mechanical and electrical patents are still holding their own in the economies of Brazil, Argentina and Mexico. But in a sign of the times firms are increasingly handling patent prosecution and litigation in the chemical and technology-related fields.

Ivan Ahlert, of Brazilian IP firm Dannemann, Siemsen, Bigler & Ipanema Moreira, has seen an increase in pharmaceutical litigation in the past two years as a result of patents for pharmaceutical products and processes being granted since 1997. His firm has also been busy filing patents for inventions related to the internet, such as business methods, mostly filed by US companies.

In Argentina, Carlos Alonso, head of patents at Marval O'Farrell & Mairal, estimates that 60% to 70% of the firm's patent filing work relates to chemical inventions, of which about 40% to 50% are pharmaceutical products. Marval O'Farrell files an average of 150 patent applications a month. Apart from Argentina, most of these are filed in Europe, the US, Japan and the rest in other Latin American countries.

"The pharmaceutical business in Argentina is quite developed," Alonso explains. "We have many foreign laboratories who file here, as well as local ones." Foreign pharmaceutical companies active in Argentina include Bayer, GSK, American Home Products, Merck, Aventis and Roche. In Mexico there has been a surge in computer-related inventions such as business methods and e-commerce, says Cesar Ramos, head of patents at IP firm Olivares & Cia.

Olivares' patent work is evenly distributed between chemical and related patents, including pharmaceuticals and biotechnology; and mechanical and electrical inventions, including computer technology. Litigation in the pharmaceuticals sector in Mexico is especially active. "We had a pipeline process in filing patents for pharmaceuticals between 1991 and 1992. Now that owners have their patents, they are enforcing them very aggressively," he adds.

"We service a lot of foreign clients, almost predominantly so, mainly from the US but also Europe, Japan and other Latin American countries," Ramos says. "However local companies are more aware than before about IP protection, not only the prosecution phase but also in litigation."

Big challenges ahead

As in other jurisdictions, the Brazilian Patent Office is grappling with the number and complexity of patent filings and recently hired 80 new examiners. Ahlert says his firm has been involved in efforts to train examiners and assist the Office in examining more efficiently.

The Argentine Patent Office is struggling with the increased workload brought about by the country's legislation that now requires patent applications to be published. Alonso says that the office, which currently has about 50 examiners, needs at least another 30 or 40 more to cope but lacks the funds. Now, once an application has been filed it takes more than two years to be published. The examination process takes place four to five years after the filing date.

The Mexican Patent Office is tackling its backlog of work by hiring and training more examiners, but there is the related problem of the high number of court cases waiting to be heard because patent infringement and validity issues are handled in the first instance by the Patent Office. The Office's decision can then be appealed in the courts.

In Brazil there is concern about increasing government intervention in the pharmaceutical sector, with some local companies obtaining government authorization to sell, but not yet manufacture, products that are protected. Ahlert believes that patents for AIDS drugs have become a pressure tool to secure lower prices on medicines used in public health programmes for chronic diseases. "They are being used in a political manner, it is not their actual intent to grant the licence," he says.

There is also tension about the contradiction between TRIPs and national legislation that rejects pending applications relating to matter that was unpatentable before 1995, such as pharmaceutical products and food. Another area of disquiet is what Ahlert describes as the discriminatory law that authorizes pharmaceutical patents to be issued by the National Agency for Sanitary Surveillance, which also contradicts TRIPs.

Argentina is contemplating joining the PCT, following the lead of other Latin American countries that have already done so including Columbia, Brazil, Ecuador and Mexico. Alonso believes this should encourage more foreign patents to be filed in the country. In Mexico a legislative review is being considered primarily to improve IP enforcement, says Ramos. And the Brazilian patent community is hopeful that the government will extend to 20 years the term of all patents that were in force on January 1 2000, in accordance with a WTO determination.