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At-a-glance: Instituto Nacional de Defensa de la Competencia de la Protección de la Propiedad Industrial Calle de la Prosa 138 San Borja, Peru Tel: +511 224 7800 Fax: +511 224 7800 Email: webmaster@indecopi.gob.pe Website: www.indecopi.gob.pe Lawyers... [more]

Lawyers expect the number of patent applications to soar in 2011, following Peru's recent accession to several major international treaties. IP firms and their clients are just beginning to enjoy the effects of the Patent Cooperation Treaty (PCT), which will dramatically increase protection and reduce bureaucracy for IP owners. The upswing is a relief for Peruvian attorneys, who have endured an 18-month drought in patent applications due to the processing period which affects new PCT members. Though the treaty entered into force in June 2009, lawyers had to wait until December 2010 to reap the benefits. "We have had more than an entire year with very few patent filings," said one partner. "Hopefully the patent office has been able to work on some of the backlog in this time."

In November 2009, Peru's Congress unanimously agreed that the country would join the Hague Apostille Convention. The agreement will speed up the paperwork for the use of public documents in Peru and abroad through a seal which identifies them as valid in all member countries. For example, power of attorney may now be granted as a private document without consular legalisation, subject to certain exceptions. "You now don't have to spend hours and thousands of dollars at the consulates – you can do it all at once," said one partner. Practitioners also felt that foreign investment was helped by Peru's free trade agreement with the United States, which came into force in February 2009.

However, the benefits of joining the Madrid Protocol are still hotly debated, despite political pressure and endorsements from professional associations. When asked about the greatest challenge for IP lawyers in Peru, one practitioner responded: "To avoid the Madrid Protocol. There's a clause in the free trade agreement which says we will do our best to become a member of these other agreements but no one wants to do that – all the law firms in Peru will probably die [if we do]."

Despite the recession in the US and Europe, Peru's economy continued to thrive through 2010 and many firms reported that trade mark filings – particularly from local clients – had increased from the previous year. "The Peruvian market is very strong right now," said one lawyer. "We have a lot of investors from abroad and the number of Peruvian filings has grown, not only in our office but in general in trade marks."

But firms reported that US and European clients – particularly in certain sectors – have been holding back on filings and haggling aggressively with firms. "The pharmaceutical industry is hell bent on cost savings so there's big pressure being handed down to the patent lawyers," said one practitioner. Several partners even described being invited to bid for work against secret competitors in "e-Bay style auctions", which seem to be an emerging trend in the way multinational clients are selecting firms across Latin America. However, the practice has aroused suspicion and bad feeling amongst some lawyers, who are not used to doing business in this way and question the integrity of the process.

Though income from the US and Europe has suffered due to the economic crisis, trade with Asia – in both legitimate and counterfeit merchandise – is on the rise. China in particular is now a close second to the US as an importer of Peruvian goods and was cited by practitioners as one of the key exporters of counterfeit products to Peru. Changes have recently been made in an effort to tighten border measures, such as allowing trade mark owners to register with Customs. "They inform you if there's an import coming so you can tell them if it's a legal or illegal import," said one practitioner. "The changes are good but they are still in the process of being correctly applied by owners."

Domestic piracy also remains a challenge for IP owners. According to the International Intellectual Property Alliance (IIPA), 98% of all music sold in Peru is on the black market and the country's legal music industry has collapsed, unable to compete. Peru remains on the lower-level watch list of the Office of the United States Trade Representative, which identifies countries which do not meet standards set by the US for the enforcement of IP rights. "Unfortunately our country still has no culture or education regarding intellectual property and how the policy affects the economy and relates to industry," said one attorney. "I think we have some work to do in that field because people here know that to steal a car is a crime, but to copy a CD or a book is not a crime to them."

On the other end of the spectrum, attitudes towards IP rights also affect some local companies that may benefit from them. "I think Peruvian IP owners are still not aware of what they own," said one attorney. "They still haven't identified value in IP. They have many assets that they are not protecting."