Phytosanitary Patent Challenges in Bolivia

Decision 486 of the Andean Community (Bolivia's industrial property law), like other similar legislations, includes provisions on which inventions cannot be patented.

We refer specifically to article 20, paragraph b), which is being the legal basis to object and reject numerous patent applications in the phytosanitary sector, due to the particular interpretation of it by the Bolivian Patent Office (SENAPI).

Paragraph b) of Article 20 establishes that inventions whose commercial exploitation in the respective member country must be prevented to protect the health and life of people or animals, as well as to preserve the environment, cannot be patented, and adds that for these purposes, the commercial exploitation of an invention will not be considered contrary to the health or life of people, animals, or to the preservation of plants or the environment solely because there is a legal or administrative provision that prohibits or that regulates said exploitation.

It is important to highlight that Decision 486 is also the industrial property law in the rest of the countries of the Andean Community (Colombia, Ecuador and Peru) and that patent applications from the same family, that are accepted in these countries, are rejected in Bolivia arguing reasons of protection of public or environmental health.

At our firm, BALDER, we are defending the patentability of several patent applications that have been objected and in cases rejected under this article: we consider that the existence of regulations that regulate the marketing of potentially harmful substances does not automatically imply that said applications must be considered within the patentability exclusions.

Recently, we have achieved some favourable decisions and, therefore, patent grants that had initially been objected and/or rejected under Article 20 b), which satisfies us enormously and makes us feel optimistic that the SENAPI practice can align with international practice.