The workshop on enforcement and provisional measures in intellectual property was held on 14 May 2026 in Concepción, Chile, as part of the activities of the VII Conference of the SIPLA initiative. The activity aimed to initiate a regional discussion on the legal, procedural and practical treatment of provisional measures in relation to patents and trade marks. The meeting began with a general introduction of the participants, who briefly presented their areas of expertise, professional experience and main research interests. This initial session made it possible to identify the diversity of approaches represented in the workshop, including academic, judicial, regulatory and professional-practice perspectives, as well as the existence of shared concerns regarding the way in which courts in the region apply provisional measures in disputes connected with intellectual property rights.
Juan Correa then presented the origin of the project and its connection with the broader work carried out within the framework of the Regional Patent Instrument. In particular, it was explained that the section of the Instrument concerning enforcement provides a starting point for analysing how procedural mechanisms for the protection of rights may affect the balance between the protection of intellectual property, competition, the public interest and access to relevant goods or technologies. In this regard, it was noted that provisional measures occupy a particularly sensitive position, given that they can produce significant economic and legal effects before a final decision on the merits of the dispute has been issued.
Subsequently, the moderator, Juan Camilo Contreras, presented the main points on the discussion agenda. His intervention helped to structure the debate around a series of concrete cases and problems, both in relation to patents and trade marks. In particular, questions were raised regarding the function of provisional measures, their procedural design, the standards required for their grant and the risks associated with their strategic use. The discussion also addressed the need to distinguish between the urgent protection of rights that appear to have been affected and the possibility that certain measures, if granted without appropriate balancing, may generate disproportionate effects on competitors, consumers or interested third parties.
Once the discussion had been opened, the participants considered what might be the best approach for a regional research project and which specific problems the initiative could address. There was consensus regarding the centrality of provisional measures as a field of analysis, especially because of their practical relevance and the limited doctrinal and case-law systematisation in several Latin American countries. In the case of patents, attention was drawn to the difficulty arising from the absence or scarcity of available cases, which limits the possibility of identifying clear trends. However, that same absence was regarded as a relevant finding for the research, since it evidences the need to understand better how patent litigation is structured in the region and what role provisional measures play in practice.
The importance of having clearer criteria to guide judicial decision-making was also emphasised. The participants noted that, in many jurisdictions, judges face difficulties in assessing complex technical matters at the preliminary stages of proceedings, particularly when they must rule on the likelihood of the right asserted, the existence of urgency or risk in delay, the proportionality of the measure, the reversibility of its effects and its potential impact on the public interest. At this point, the discussion considered the desirability, in a first stage, of moving towards a comparative diagnosis capable of identifying standards, judicial practices, regulatory gaps and possible risks of automatic or insufficiently balanced application of provisional measures.
The debate also addressed the situation of trade mark law. It was observed that, although trade mark disputes tend to be more frequent than patent litigation, many of the procedural problems are similar. In several jurisdictions in the region, Article 50 of the TRIPS Agreement is applied directly as a basis for adopting provisional measures. Nevertheless, it was noted that, more recently, some courts have begun to assess the requirements for the grant of such measures more rigorously. This development was considered relevant, as it may indicate a transition from more automatic approaches to protection towards more demanding models of judicial analysis, centred on proportionality, reasonableness and the concrete assessment of the effects of the measure requested.
In conclusion, the participants agreed on the desirability of moving forward with a regional comparative study on the situation of provisional measures in intellectual property matters. Such a study should survey the applicable legal framework, the available case law, judicial practices and the main tensions identified in different countries of the region. On that basis, the possibility of preparing recommendations or guidelines aimed at the application of clear criteria for the granting, review or refusal of provisional measures will subsequently be analysed. The objective would not be to replace the judicial assessment required in each individual case, but rather to provide tools that contribute to a more consistent, balanced and public-interest-sensitive application of intellectual property enforcement mechanisms.
Participants:
