The international principles issued by the WTO and specifically the ADPIC, have been incorporated into this new legal body, guaranteeing in this manner transparency in the obtention, exercise and protection of copyrights, industrial property, and plant obtentions; all of them an important part of intellectual property.
The principles of "national treatment", "most favored nation", "exhausting rights", and "minimum standards" now enjoy full legal recognition within the law; and Ecuador joins into the world tendency to achieve worldwide harmony. Each of these principles tends to achieve an equal treatment as granted by most laws to their national and foreign citizens, without restricting the privileges enjoyed by nationals from other countries and acknowledge any of such international treaties which render a minimum legal protection that may be enlarged to a higher level in each country.
Within this new tendency which answers to the requirements now imposed by economic globalizing, the Ecuadorian Institute for Intellectual Property (IEPI) has been created, a juridical person under public law enjoying administrative, financial and operational autonomy, as a technical organization, in charge of legal coverage and defense of intellectual property rights, whose structure seeks to include specialized departments to assure an adequate and efficient service in all pertinent facets of this subject.
One of the most important subjects governed by this new law concerns copyrights, morally and patrimonially, including classification of computer programs as literary works, also audiovisual, architectural and plastic arts works.
A new development, compared to prior legislation, is the period of protection for patrimonial rights of works, which according to the new law shall last during the lifetime of the author and seventy years after his death, thus increasing to 20 years over the former law.
The figure of "private copy" is incorporated therein, being understood as the domestic copy of a phonogram or videogram or the reprographic reproduction in a single copy destined to non profit use by the applicant person. The corresponding compensation "remuneration" is associated therein.
On the subject of patents, the requirements related to newness, invention level and industrial application of the product or procedure subject of the patent are maintained.
Expressly excluded from the patent are the following:
- Discoveries, principles, scientific theories, mathematical methods;
- Materials already existing in nature;
- Literary and artistic works or any other aesthetic creation;
- Plans, rules and methods to exercise intellectual activities, for games or other economic-commercial activities, as well as computer programming or logical support as long as they are not a part of an invention susceptible for industrial application;
- The ways to present information;
- The inventions whose commercial exploitation must be restricted to protect public order, morals, health or life of persons or animals or to preserve plant life or avoid serious damage to the environment and ecosystems; within such are considered human beings clonation procedures, the human body and its genetic identity, the use of human embryos with industrial or commercial purposes, and the procedures to change genetic identity in animals when causing suffering without attaining any substantial medical benefit for human beings of animals;
- Diagnosis, therapeutical and surgical methods for the treatment of persons or animals;
- Plants and animal breeds, as well as procedures which are essentially biological to obtain plants or animals.
For the purpose of registration, it shall be acknowledged the right of priority of the first patent application for invention validly submitted in a WTO member country, the Andean Community, the Paris Convention for Industrial Property Protection, during a term of one year, starting on the date of such application.
The patent shall have a duration of twenty years starting on the date of submittal of the application.
Models of utility are those considered as any new form, configuration or disposition of elements in some artifact, tool, instrument, mechanism or other object or in any of its parts, which allow a better or different operation, use or manufacturing, or an object incorporating same or that provides some usefulness, advantage or technical effect not had before; as well as any other new creation susceptible of industrial application which does not enjoy a sufficient inventive level to allow the granting of a patent.
Purely aesthetic objects in character, as well as materials and procedures excluded from protection as patents of invention cannot be considered as susceptible to be registered as models of utility.
Models of utility have a term of protection of ten years starting on the date of presentation of the respective application.
A new figure in this field is that of the "certificates of protection", which allow inventors to have a mechanism "prior to protection", enabling them to experiment or build some device to make their idea known to the public, without their invention losing the right to be patented. Such certificate shall serve as the basis to submit, within the year following the date of granting such certificate, an application for registration, claiming its date and the obtention of the certificate, to comply with general patent requirements.
Industrial models and drawings, in the shape of any combination of lines, forms or colors, and any other plastic form, associated or not with lines or colors, which serve as a model to manufacture any industrial product or artisan craft and which is different from a similar one due to its own particular configuration, are also included. The term granted for a reciprocal treatment is of six months in order to claim priority over an application validly submitted in another member country of the WTO, Paris Convention for Industrial Property Protection, Andean Community, or another country which grants such reciprocal treatment.
The term of protection is of ten years, starting on the date of submittal of such application.
Regarding tracing schemes (topographies) for semi-conductor circuits, they enjoy exclusive intellectual property rights, provided they comply with originality requirements, are the result of intellectual efforts of their creator and are not in common use.
The term of protection of these works is of ten years, starting on the date of their first commercial exploitation anywhere in the world. However, such protection cannot be less than fifteen years starting on the date of creation of the tracing scheme. This protection, regardless that the tracing scheme would be registered or not, may be retroactive to the date of its creation.
Protection previously granted to commercial and industrial secrets, covers all "undisclosed data", or confidential information. The parameters of protection are observed provided such information is secret, has a commercial value, and the person who legally has it under control has adopted reasonable measures to keep it secret. This legal figure directly attacks industrial or commercial espionage, abuse of confidence and creates liabilities derived from such action.
In the area of trade marks, as an innovation, a difference is set forth between notoriously known trade marks and high renown trade marks, being understood that the first are those known to the pertinent sector of the public which consumes such products or services, whilst the second are those known to the public in general. In addition, there is the possibility of making amendments to applications for registration of trade marks, concerning secondary aspects, before they are published in the official gazette. In this same area, there is an additional thirty (30) working days being granted to submit oppositions against the registration of any trade mark.
As stated previously, the international principle of "exhausting rights" governs this law, by which the right conferred by the registration of the trade mark does not grant its title holder the possibility to forbid the entry into a country of products trade marked by him, its licensee or any other person thereby authorized, which have been sold or in any other way illegally introduced into the domestic trade of any country.
Concerning trade names, common use is acknowledged as a source of legal right, being understood that the right to the exclusive use of a trade name derives from its public and continuous use in good faith in such trade, for at least a period of six months. In any case, such trade names are susceptible to be registered, and their term of duration is indefinite.
The new law distinguishes trade names from "distinctive appearances" which refer to particular features or special structure which identify or distinguish the rendering of services or sale of products, even though their protection may be granted under the same terms.
Geographical indications, are defined as those which identify a product as originating from a territory or a country, a region or location in such territory, when a determined quality, reputation or any other feature of the product may be basically attributable to its geographical origin, including natural or human factors. The right to its exclusive use is acknowledged from the statement issued by the National Industrial Property Bureau for this purpose, and its enforcement shall be based on the continuance of the conditions which served as the basis for such issuance.
The registration of plant obtentions as cultivated genders and species implying the improvement of inheritable vegetal features of plants, provided it is not forbidden by reasons of human, animal or vegetal health, shall be in charge of the National Bureau for Plant Obtentions, as a special organization guaranteeing the appropriate technical examination prior obtention. In addition, there is an advantage over the previous law, because no deposit of the live sample is required, when such deposit would be made with a competent authority of a member country of the International Union for Protection of Plant Obtentions, unless such deposit would be required to resolve some opposition to its registration or to conduct additional technical tests.
An important basic subject which has not been dealt by any law, or as a reference, relates to Disloyal Competition, being understood as such any action or practice contrary to the honest use and habits in the development of economic activities, among which, to illustrate its scope, are those acts capable to create confusion, independently of the means used, with respect to the establishment of the commercial or industrial products, services or activities of the competitor; false statements in the exercise of trade capable to discredit the establishment of products or services, or the commercial or industrial activity of a competitor, as well as any other act susceptible to damage or dilute an intangible act or the reputation of any company; statements whose distribution into the trade may induce the public to error about the nature, method of manufacturing, features, aptitude, use, or quality of the products or rendering of services; or disclosure, acquisition or use of secret information without the consent of whoever controls it.
On the subject of procedural law, any violation to intellectual property rights, results in the exercise of civil and administrative legal action; without prejudice to any penal action, if applicable, on those violations qualified as transgressions of the law.
In this field, is important the protection and observance of intellectual property rights by means of preventive and cautious measures destined to cease illicit activities and the consequent damage to legitimate title holders of the rights provided under this law.
Finally, is worth mentioning the subject of collective rights, which are those belonging to etnias and local communities, for whose specific protection a special law shall be enacted.
We trust that required efforts be given to the issuance of the Regulations to this law, and the creation of the IEPI be effective, as necessary steps in order for this process to reach its objectives.
Within this governing legal process, undertaken in Ecuador, the enactment of the Regulations to the Law for Promotion and Guaranty of Investments is essential in order to promote foreign investments, and equality of treatment both for national and foreign concerns through general guaranties and stable tax regulations, promotion of technology transfer, without giving preferred rights to Ecuadorians receiving such technology.
It is not a coincidence that along this history, a parallel has be noted between industrial progress and the status of industrial and intellectual property laws in general, a fact which in a country like Ecuador, eager to receive new investments and achieve economic growth, must be dealt as one of the routes to join in a world where universal rights are going beyond the principles of territory, and makes us a participant in globalizing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.