Patent Flexibilites: Towards a Regional Instrument
15-03-2022 / Buenos Aires, Argentina

The Max Planck Institute for Innovation and Competition drafted, together with 40 international patent academics from 25 countries, the "Declaration on Patent Protection: Regulatory Sovereignty under TRIPS," with the aim of "clarifying some of the regulatory options that States still retain under international law, in particular the TRIPS Agreement."

Building on this work, the workshop on flexibilities in the patent system was attended by participants from Argentina, Brazil, Colombia, Costa Rica, Mexico, Peru and Uruguay. The first part of the workshop included a presentation of the Report on Patent Flexibilities in Latin America ("Implementación de las Flexibilidades del Sistema de Patentes en Países Seleccionados de Latinoamérica") and its main conclusions.

In the second part, the question raised was: What could be the minimum standards to which the countries of the region could commit themselves in terms of flexibilities? To this end, a document prepared by the Max Planck Institute on permitted uses in copyright law was presented and discussed to provide it as example on what could be done in terms of patent law.

The participants discussed the different elements that constitute the framework of patent law in their respective countries, from the application of patentability criteria prior to grant, as well as exceptions and limitations, compulsory licenses and instruments for opposition or revocation of patents after their grant. The possibility of having a model law or toolbox that analyzes in depth the existing exceptions and limitations in regional patent law and also goes further by introducing possible new exceptions and limitations was discussed. It was also suggested that work be done on patentability criteria and compulsory licenses.

As a first conclusion, the idea was reached of having an instrument consisting of suggested articles and their explanation and possible interpretations, as well as implementation referring to exceptions and limitations. Secondly, the idea is to make suggestions regarding patentability criteria and possible interpretations in different fields of technology.

Finally, it was agreed to work under these lines of action and to constitute different tables to articulate the work.