Free Trade Area of the Americas - FTAA

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April 23, 2002

Original: Spanish
Translation: FTAA Secretariat



Name (s) Dr. Alberto R. Berton Moreno, President
Organization (s) Asociación Interamericana de la Propiedad Industrial
Country Argentina


The Interamerican Association of Industrial Property (ASIPI), founded in 1964, is a professional association of intellectual property specialists. The association’s roster of members includes highly distinguished professionals from Canada to Argentina, as well as members in Europe and Asia.

For several years, ASIPI has conducted studies on various international agreements on intellectual property. In particular, it has studied the Madrid Protocol/Agreement on the International Registration of Marks (MADRID), the Patent Cooperation Treaty (PCT), the Patent Law Treaty (PLT), and others. As further reference, copies of these agreements have been attached to this document.

The proposed text for the FTAA Chapter on Intellectual Property would require FTAA countries to implement at least several substantive provisions from, inter alia, the Trademark Law Treaty (TLT) and the Patent Law Treaty (PLT). The specific provisions have not yet been identified, but may include Article 12 and all subsequent articles of the TLT and Rule 15 and all subsequent rules of the PLT.

Note that the two aforesaid treaties contain some provisions that create legal uncertainty for patent and trademark holders and third parties and others that, in addition to creating uncertainty, have failed to accomplish what they were intended to do, which was to reduce procedural requirements, as evidenced, for example, by a provision in Mexico’s Industrial Property Law requiring that a single application be used to register conveyances or licenses for multiple patents and trademarks.

It is equally important to point out an apparent attempt by the United States government to require FTAA countries to join the Madrid Protocol and the Patent Cooperation Treaty, which are discussed in greater detail below.


The Madrid Protocol is extremely advantageous to industrial countries that export products under domestically owned trademarks. However, far from benefiting the countries of Latin America, the Protocol would create serious infrastructural and financial problems for their national trademark and patent offices, such as, for example, the need to translate English and French Protocol documents into Spanish, to hire trilingual staff, etc.

For example, Mexico, a leading Latin American exporter, only exports a small percentage of products with trademarks registered by Mexican companies. While it does, in fact, export large quantities of automobiles and motors, these are exported with trademarks like VOLKSWAGEN, CHRYSLER, FORD, etc. In Mexico, very few products with domestic trademarks are exported; the same holds true for the rest of the countries of Latin America.

The Madrid Protocol poses serious constitutional and legal problems, which, when added to the practical problems described in the attached studies, recommend Latin American countries against joining the Protocol.


The purpose of the Patent Cooperation Treaty is to reduce patent fees. It basically achieves this by granting any patent application submitted in one of the Treaty’s designated Contracting States extraterritorial effects in all of them for a period of 30 months, even if the application in question is never actually requested in many of the designated States.

ASIPI believes that the Patent Cooperation Treaty is extremely beneficial for companies that apply for large numbers of patents [large patent applicants] and the countries where they are headquartered.

In the Americas, a single country-the United States-generates nearly all patent applications, and the rest of the countries basically receive foreign applications. A requirement to join the Patent Cooperation Treaty would discriminate in favor of the United States and, by extension, Japan and the members of the European Community, which, together, submit 95.8% of all patent applications, according to 1999 statistics. The rest of the world submits only 4.2% of all patent applications, with the countries of Latin America submitting less than 0.3%, an insignificant number.

By mainly focusing on protecting the interests of large applicants, the Patent Cooperation Treaty fails to protect other important rights under the patent system, namely, the rights of industries competing with large applicants and the rights of the weakest countries, in which third parties are prevented, for at least 30 months, from even studying capital projects that use new technology, for the reasons explained in the first paragraph of this section.

For these reasons, among others, ASIPI believes that a requirement to join the Patent Cooperation Treaty should not be imposed by a treaty as significant as will be the FTAA, because the Treaty confers asymmetrical benefits to one of the member countries, which also extend to countries that are not part of the FTAA Agreement, such as European Union countries and Japan.

Current Process to Amend the PCT

Whether developing countries, which make up the majority of the countries involved in the FTAA, derive any benefit from the current version of the Patent Cooperation Treaty is open to debate. However, once the amendment process now underway is complete, there is no doubt that they will be excluded from any benefits, since the tendency of the process is to progressively centralize the patent system, placing it in the hands of large countries and the international organizations that they control by virtue of their greater capacity, expertise, and economic power. Eventually, all power over the management of the patent system would be wrested from the developing countries, regardless of the fact that they are part of the system, and even though they may only be part of it out of an obligation to respect the rights of third parties.

ASIPI finds the best support for its position on the Patent Cooperation Treaty in the fact the World Trade Organization does not require its members, as part of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to adopt the Treaty. This is interpreted as an effort to aid underdeveloped and developing countries, which would otherwise be prevented from implementing national patent systems designed to close the technological gap. Whether the current version of the Patent Cooperation Treaty prevents them from doing so is arguable, but the amendment process, led by the large applicants and holders, will undoubtedly tend to exacerbate the problem.

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