While some IP rights (eg, trademark rights, patent rights and copyrights) go back many centuries, others have been acknowledged only more recently (eg, scientific data rights, plant breeders' rights and database rights). This is closely related to the technological revolution that took place in the second half of the 20th century. This update looks at the legal protection of plant breeders' rights and software or computer programs.
Article 39.3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights establishes a series of requirements that, once present, create an obligation for member countries' governments to protect scientific data against unfair commercial use. The Confidentiality Law is supposed to implement Article 39.3; however, the law allows third parties to rely on the scientific data of a product that has already been approved.
Following adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), several changes were introduced to adapt Argentine legislation to the agreement's minimum standards (eg, the term of patent protection and the availability of patent rights in all fields of technology). This update looks at how the TRIPs Agreement has been implemented into the Argentine patent regime.
The Patent Act sets forth that inventions are patentable “as long as they are novel, involve inventive activity and are susceptible to industrial application”. This provision applies clearly in the case of an inventor who finds a property or use in a product or active principle which was unknown up to that moment. However, what happens in relation to new uses of an existing product?
The results of innovative activity must be legally protected to encourage research and its ensuing social benefits. There are several legal protection mechanisms, the most prominent being invention patent law and scientific data law protection. The existing legal protection of scientific data in Argentina is a number of steps away from a sound legal protection of IP rights.
Recent IP developments in Argentina have included improvements in the protection of trademark owners’ rights and serious steps backwards in the legal protection of data exclusivity and the granting of preliminary patent injunctions. These situations are all related to the adequate enforcement of existing rules.
Many innovators are forced to wait a considerable period of time between the patent application filing date and the date of patent grant. During this time many innovations are copied without the consent of the creator, which must tolerate this until the patent office issues the patent. This begs the question of whether patent applications deserve legal protection.
A recent ruling by the Second Court of Appeals of the Federal Circuit on Civil and Commercial Matters established new and clear parameters for the reckoning of damages in patent infringement cases. The case took into account the profits the patent owner could have earned if it had made the infringer's sales itself.
Article 2 of the Argentine Trademark Act provides that the natural or inherent colour of a product, or a single colour applied to a product, cannot be considered to be a trademark. The courts have confirmed this principle in two recent decisions; however, exceptions may apply in certain circumstances.
Senator Marina Riofrio has proposed a bill to the National Congress introducing specific regulations pertaining to collective and certification trademarks. Although such marks are not forbidden by existing provisions, they are not expressly regulated by national legislation.