11 / 05 / 2020

Opinion article by Felipe Pavez, partner of Villaseca Abogado, leader of the Law Enforcement and Litigation Area


“Chile remains on the Priority Watch List in 2020”. Thus begins the chapter dedicated to our country in the document called Special Report 301, corresponding to this year 2020, of the Office of the United States Trade Representative (USTR), which has just been published.

And the truth is that this does not constitute any surprise or novelty for those of us who are related to the subject of Intellectual Property, since such dubious recognition has been maintained, invariably, for already 13 long years. It is like “Groundhog Day”.

This Priority Watch List (also known as the “Black List”) brings together those countries that, according to the evaluation carried out by United States, fail to comply with the rules related to Intellectual Property. In Latin America it also includes Argentina and Venezuela. The other members of this questionable “top ten” are: Saudi Arabia, Algeria, China, India, Indonesia, Russia and Ukraine.

Although there is express recognition of the efforts made by our country in the fight against counterfeiting, through the National Customs Service (more than 11 million seized counterfeit products, of the most varied categories, for a value higher than US $ 139 million), as well as the efficient management deployed by the National Institute of Industrial Property (INAPI), apparently, these advances or improvements are not enough to reverse this negative evaluation, due to the “serious concerns” related to long-standing implementation problems with IP provisions since the signing of the Free Trade Agreement. Fundamentally, the claims focus on the lack of implementation of the Protection of Plant Varieties (UPOV 91), on the responsibility of internet service providers to combat online piracy, and, in the matter of patents, the repeated Linkage issue and due transparency in the granting of compulsory licenses.

To avoid this situation continuing to perpetuate over time, it seems opportune and pertinent to review what it is that we are doing wrong or insufficiently as a country, especially in those matters in which we make observations, so that, sometimes, as Phil Connors (the character played by Bill Murray, in the 1993 comedy) we can finally move on to the next day and get out of this non-prestigious list.