IP rights in Latin America are comprised of industrial rights and copyright, in accordance with the Anglo-Saxon system. The industrial branch comprises enhanced trademarks, trade names, logo and patents.

In more developed countries, patents are the most valued of the industrial IP rights. This is because these countries can make big investments in technical and scientific development, as they have the necessary infrastructure to facilitate scientific investigation. In addition, their technology, pharmaceuticals and chemical industries demand such advances and frequently finance such activities.

However, the situation is different in Latin American countries.

An invention is a novel response which is capable of industrial application and which resolves a real and technical problem. The invention may be either a product or a process. In granting a patent, the government gives its creator a monopoly over the invention for a certain period of time, so that the patent owner can recoup its investment and reap the economic benefits of the invention. In return, the patent owner must disclose exactly how to manufacture the product or apply the process. Once the period of protection has elapsed, the patent expires and becomes part of the public domain, and can be used by any person. In El Salvador, the period of protection stands at 20 years and may not be extended, as general rule.

An invention is patentable if it meets the requirements of novelty, industrial application and inventive step. The Patent Office will thus grant protection to an invention if it establishes that:

  • the invention may be produced or used in any type of industry or productive activity;

  • it is not found in the state of art; and

  • it is not obvious or does not evidently derive from the state of the art.

Once the patent has been granted, the patent owner is entitled to prevent third parties from exploiting it in any form, including manufacture, sale, importation, storage or use.

The authorities of the Central American countries participating in negotiations on the Free Trade Agreement between Central America and the United States (CAFTA) were recently forced to review the patent administration and protection systems in their countries. This is because, before disclosing any information on its products, the United States wishes to ensure that they will be well protected against unfair exploitation in Central America. It is seeking guarantees that protection of US patents will be granted and enforced in the isthmus.

Some critics allege that intellectual property - and specifically patents - is a mechanism to monopolize scientific and technical knowledge in favour of more developed nations. However, patents are essentially a precaution taken by the owner of an invention to prevent third parties from unfairly benefiting from its efforts. In exchange, the patent owner must promise to disclose to any interested party all the information and characteristics of its invention. Should the inventor decide not to patent the invention, it is free to treat the process or product as a trade or commercial secret, and not divulge the technical or scientific advances that have been made; but in such cases the contribution to humanity is much diminished.

While intellectual property has admittedly been used in the past to block access to knowledge, this should not automatically lead people to assume that the system is flawed - the problem lies rather with those who use and apply it.

It is thus hoped that the Central American negotiators find, in the course of their negotiations, a balance which permits inventors to reap the benefits of their efforts without affecting the interests of third parties, and which promotes real development in the region on the basis of intellectual property.

For further information on this topic please contact Lilian Zelaya or Vanessa Handal at FA Arias & Muñoz by telephone (+503 257 0900) or by fax (+503 257 0901) or by email ([email protected] or [email protected]).