Bs. As., 18/4/95
VISTO Draft Law No. 24.481, sanctioned by the HONORABLE CONGRESS OF NATION on 30 March 1995 and
That Law No. 17.011 ratified the Paris Convention for the Protection of Industrial Property of 20 March 1883, revised in Brussels on 14 December 1900, in Washington on 2 June 1911, in The Hague on 6 November 1925, in London on 2 June 1934, in Lisbon on 31 October 1958 and in Stockholm on 14 July 1967.
That Law No. 24.425 adopted the Final Act incorporating the results of the Uruguay Round of Multilateral Trade Negotiations, and Decisions, Declarations and Ministerial Understandings and the Marrakesh Agreement establishing the World Trade Organization, and its Annexes, including the Agreement on the ASPECTS of INTELECTUAL PROPERTY RIGHTS.
That both rules constitute international treaties adopted by the HONORABLE CONGRESS OF NATION, and have a hierarchy superior to the laws, in accordance with article 75, paragraph 22, of the National Constitution.
That in article 7 (c) of the Bill, a material error has been slipped, which matters to include essentially biological procedures for the production of microorganisms between the patentable matter, colliding with the provisions of article 27, paragraph 3 (b), of the Agreement, and the exception in subparagraph (b) of the Bill is duly included.
That article 36 (c) of the Draft Law provides that the right conferred by a patent shall not produce any effect against any person who acquires, uses, imports or in any way commercializes the product patented or obtained by the patented process, once the product has been lawfully placed in the trade of any country, colliding with the provisions of article 28 of the Agreement.
That article 37 of the Bill does not conform to the provisions of article 70, paragraph 4, of the Agreement on the Protection of the Existing Matter, which is appropriately provided for in other rules.
That article 42, by establishing the exploitation of the patent exclusively through the execution of the patent in the national territory and excluding the import, collides with the provisions of article 2 of the Paris Convention and article 27, paragraph 1, of the Agreement.
That article 43 deserves similar observation, as it is the result of the previous one, and it should also be borne in mind that the use without authorization of the patent holder is subject to the limitations set forth in article 31 of the Agreement.
Article 44 empowers the NATIONAL INSTITUTE OF PROPERTY INDUSTRIAL, to establish limited exceptions to the rights conferred by a patent. However, the excessive latitude of the cases that enable it constitutes an extrapolation of the principle of Article 8(1) of the Agreement incompatible with the legal security of its remaining provisions, and with Article 30 thereof. At the same time, it would give public officials great discretion, and this is not consistent with the economic reforms in the country and with the transparency that should characterize the administration, nor with the stability that industrial property requires in order to address long-term investments in research and development.
That the first part of the last paragraph of article 46 contravenes the provisions of article 31 (a) and (h) of the Agreement, that the authorization shall be considered in accordance with its own circumstances, and that the holder shall receive adequate remuneration in accordance with the circumstances of each case, given the economic value of the authorization.
That the second paragraph of article 47 establishes assumptions of anti-competitive practices inconsistent with the provisions of Law No. 22,262 on Competition, in particular articles 1o, 2o and 41, which should be governed by the specific law, and the provisions of Section 8 of the Agreement on the Control of Anti-Competitive Practices in Contractual Licences. It should be borne in mind that the Bill repeals section 5 of the above-mentioned Law on the Defence of Competition, so there is no doubt about its application to the regime of industrial property. Act No. 22,262 prohibits and punishes acts or conduct relating to the production of goods or services, which limit, restrict or distort competition or constitute abuse of a dominant position in the market, so that it may prejudice the general economic interest, without prejudice, of course, of the regular exercise of the rights granted by the patent, in accordance with the rules of international treaties and the law.
That the last part of article 50 of the Bill contravenes, as already seen, the provisions of article 31 (h) of the agreement.
Article 65(d) and (f) of the Draft Law collide with the period of DOS (2) years provided for in Article 5(3) of the Paris Convention. Subparagraph (h), for its part, collides with the same rule, since the expiration may not be foreseen, but for the case where the granting of compulsory licences has not been sufficient to prevent such abuses.
That article 65 (g) of the Bill is also not compatible with the provisions of article 5 of the Paris Convention. The concepts contained therein are analogous with those contained in article 27, paragraph 2, of the Agreement for the Exclusion of Patentability, but it is appropriate to prohibit its exploitation, if necessary to protect public order or morality, or to protect the health, life of persons or animals or to preserve vegetables, or to avoid serious damage to the environment.
That article 91 of the Bill contravenes the provisions of article 34 (1) of the Agreement by establishing a time-frame for implementation from 2000 and a partial transcription of the evidence-loading mechanism. The rule of the treaty, like most of these, is operational per se, and the judicial authorities may apply it directly.
That the third paragraph of article 94 of the Bill does not conform to the provisions of article 99, paragraph 7 of the National Constitution, which provides that the President of the Nation alone appoints and removes employees whose appointment is not otherwise regulated by the Constitution. In addition, it should be borne in mind that Act No. 20,677 had set aside the requirement of the agreement of the Honourable Senate of the Nation for the appointment of officials in all of the agencies of the Public Service, irrespective of their legal nature, whose rules of establishment, constitution and operation are established and whose designation is not regulated by the National Constitution.
Article 97 of the Bill provides for the establishment of a National Administration under the NATIONAL INSTITUTE OF PROPERTY INDUSTRIAL, it is up to the Executive Power to determine the administrative organization that it deems relevant in the light of the public spending policies implemented by this Government.
That article 102 of the Bill establishes a retroactive effect incompatible with the approximately MIL CINCUENTA (50,000) procedures that are authorized monthly to protect industrial property rights, and would generate serious legal conflicts in terms of their scope and rights.
That articles 104 and 105 of the Draft Law set the dates for partial validity of the law and for the granting of certain patents that are not related to the approval provided for in article 1 of Act No. 24,425 on the Agreement on the ASPECTS of the INTELECTUAL PROPERTY LAW RELATED TO TRADE; the aforementioned treaty was approved by the HONORABLE CONGREE of the 65
This is a perfectly logical and consistent circumstance, since the ARGENTINA REPUBLIC is at a stage of technological and industrial development in which such deferrals would have only delayed investments in research and development, and the consequent growth of its industry and economic activities in general, while continuing to segregate it from most of the countries of the international community that recognize and respect the necessary industrial property rights. In addition, the last paragraph of article 105 of the Bill does not relate to the rules of protection of the matter provided for in article 70 of the Agreement.
That the powers for the dictation of the present arise from the provisions of article 83 of the National Constitution.
THE PRESIDENT OF THE ARGENTINA NATION
RIGHT:Article 1 Note articles 37, 42, 43, 44, 91, 97, 102, 104 and 105 of the Bill registered under No. 24,481. Art. 2o Note article 7 (c) of the Bill registered under article 24,481. Art. 3o Note article 36 (c) of the Bill registered under article 24,481. Art. 4o Note in the fourth paragraph of Article 46 of the Bill registered under No. 24,481 the phrase that reads: "the one that will be fixed taking into account the average royalty rate for the sector that is treated in commercial licensing contracts between independent parties." Art. 5o ! Note the second paragraph of Article 47 of the Bill registered under No. 24.481. Art. 6th Note in article 50 of the Law Bill registered under No. 24,481 the phrase that reads: "The one that will be fixed taking into account the average royalty rate for the sector in question in commercial license contracts between independent parties." Art. 7o Note article 65 (d), (f), (g) and (h) of the Bill registered under No. 24,481. Art. 8o Note the third paragraph of article 94 of the Bill registered under article 24.481. Art. 9th Return to the HONORABLE CONGRESS of the NATION the Bill registered under No. 24,481. Art. 10. Contact, post, give to the National Directorate of the Official Register and archvese. MENEM. Domingo F. Cavallo.