Peruvian patent litigation on infringement and invalidation: A sui generis case of bifurcation

fork-in-the-road

Guest post by Diego F. Ortega*

The Andean Community is the result of the seeking of the balanced and harmonious development of Bolivia, Colombia, Ecuador and Peru, which in May 26, 1969 signed the Cartagena Agreement, laying the groundwork for the creation of a subregional community initially known as Andean Pact and later renamed as Andean Community. In order to achieve the said objective, the Andean Community promotes a continuous process of integration and economic and social cooperation. In particular, this process of integration involves the need of having common rules as to matters that foster the unification of the market, such as industrial property rights.

The industrial property system within the Andean Community was established by the “Decision 486”, which aims to guarantee a rigorous scrutiny as to the fulfillment of the requirements needed for the granting of a patent. Thus, Andean Community does not provide only for the mandatory performance of a substantive examination carried out by the national patent authorities of its Member Countries, but also for mechanisms which allow third parties to prove that an invention does not meet the legal requirements, seeking the denial of the patent (through a pre-grant opposition request) or, if the patent is granted, its revocation (through an invalidation request). Continue reading “Peruvian patent litigation on infringement and invalidation: A sui generis case of bifurcation”