VZCZCXYZ0012
RR RUEHWEB

DE RUEHBU #0927/01 1311917
ZNR UUUUU ZZH
R 111917Z MAY 07
FM AMEMBASSY BUENOS AIRES
TO RUEHC/SECSTATE WASHDC 8114
INFO RUEATRS/DEPT OF TREASURY WASHINGTON DC
RUCPDOC/USDOC WASHINGTON DC
RUEHRC/DEPT OF AGRICULTURE USD FAS WASHINGTON DC
RUEHAC/AMEMBASSY ASUNCION 6157
RUEHMN/AMEMBASSY MONTEVIDEO 6432
RUEHSG/AMEMBASSY SANTIAGO 0403
RUEHBR/AMEMBASSY BRASILIA 6025
RUEHLP/AMEMBASSY LA PAZ MAY GUATEMALA 0235
RUEHVL/AMEMBASSY VILNIUS 0070
RUEHSO/AMCONSUL SAO PAULO 3276
RUEHRI/AMCONSUL RIO DE JANEIRO 2220

UNCLAS BUENOS AIRES 000927 
 
SIPDIS 
 
SIPDIS 
SENSITIVE 
 
EEB/TPP/IPE JENNIFER BOGER, RACHEL WALLACE AND ROBERT WATTS 
USTR FOR JENNIFER CHOE GROVES, SUE CRONIN 
DOC/ITA/MAC/OIPR FOR CATHERINE PETERS 
PLEASE PASS TO USPTO JURBAN AND LOC STEPP 
TREASURY FOR ROSELLEN ALBANO 
 
E.O. 12958: N/A 
TAGS: KIPR ECON AR
SUBJECT: POST INTELLECTUAL PROPERTY ACTION PLAN 
 
Refs: State 56094 
 
  Buenos Aires 335 
  Buenos Aires 861 
  Buenos Aires 750 
 
------------------------ 
Introduction and Summary 
------------------------ 
 
¶1. (SBU) On April 30, USTR announced that Argentina would remain on 
the Special 301 Priority Watch List for the thirteenth year in a row 
(Ref A).  Intellectual property (IP) protection is significantly 
lacking in Argentina: Piracy rates of music CDs and movies are above 
South American averages and illegal downloads are growing rapidly 
with increased internet penetration; local pharmaceutical firms are 
routinely granted permission to market unlicensed copies of drugs 
using appropriated foreign company safety and efficacy data; and 
products with false trademarks can be purchased in street markets 
all across the country.  (See ref B.)  Enforcement of generally 
TRIPS-consistent IP legislation is weak and there is little GoA will 
to improve IP protection, except within the customs and tax 
authorities.  To address these shortfalls, Post has developed an 
action plan that targets Mission-wide resources toward four broad 
areas, ordered by the depth and breadth of their potential impact: 
(1) support private sector-recommended improvements to current GoA 
IPR legislation; (2) encourage GoA regulation ("reglamentacion") of 
existing pro-IPR legislation; (3) work with GoA enforcement entities 
to better coordinate their currently disparate and weak IPR 
protection efforts; (4) target USG resources to train GoA officials 
in improved IP protection and enforcement methods; and (4) educate 
the Argentine public on the importance and value to Argentina of 
protecting intellectual property.  The action plan also suggests 
strategies to address shortfalls in protection of pharmaceutical 
data confidentiality and the GoA's unwillingness to restrict 
domestic health approvals of generic copies of drugs which have 
patent applications in process.  Post's IP action plan is a 
Mission-wide initiative that seeks to coordinate efforts of State's 
Economic and Public Affairs sections, DoC's Foreign Commercial 
Service, DHS' Immigration and Customs Enforcement unit, and USDA's 
Foreign Agricultural Service to tackle this serious problem.  End 
Summary. 
 
-------------------------- 
IPR Best Practices a Guide 
-------------------------- 
 
¶2. (SBU) Post's IP Action Plan used best practices developed during 
State/EB's 2004 IP conference in Hong Kong as an initial guide.  It 
was fleshed out with significant assistance from colleagues in EEB's 
Intellectual Property Enforcement office, the Department of 
Commerce, and the U.S. Patent and Trademark Office, as well as from 
Post's Foreign Commercial and Agricultural Services, Department of 
Homeland Security, and Public Affairs office.  The goal was to 
create an ambitious but workable plan which identifies and 
prioritizes those areas where we can have an impact, while taking 
into account the limited cooperation to be expected from the GoA. 
 
--------------------------------------------- ---------- 
Promoting Better IPR Legislation and Treaty Obligations 
--------------------------------------------- ---------- 
 
¶3. (SBU) The GoA continues to insist that its IPR legislation is 
world class and TRIPS-consistent, and to date has shown little 
interest in considering proposals to modify current laws.  The 2003 
patent law, fruit of a USG-GoA bilateral agreement which resolved a 
WTO dispute, did provide important new injunctive relief remedies 
though its application to date has been generally problematic.  In 
addition, continuing delays in patent adjudication reduce the 
effective period of protection for patents, which may violate TRIPS 
(the WTO Agreement on Trade-related Aspects of Intellectual Property 
Rights).  The copyright law needs to be modernized, to specifically 
include modern technologies such as the internet, but is thought to 
be generally effective.  Argentina's trademark law is inadequate; 
some private sector representatives argue it does not comply with 
 
TRIPS due to its de minimus penalties which lack deterrent effect. 
Upgrading this trademark law could significantly improve Argentina's 
IPR regime. 
 
¶4. (SBU) Given GoA sensitivities, direct lobbying for improved IP 
legislation would be counterproductive.  Instead, Post's strategy is 
to work with business chambers and like-minded diplomatic missions 
and members of the Argentine Congress to build support for 
legislative and treaty accession initiatives including.  We are 
targeting a trademark law modification drafted by members of the 
American Chamber's (AmCham) IP committee.  We are also supporting EU 
efforts to encourage GoA accession to the World IP Organization's 
(WIPO's) Patent Cooperation Treaty and the Madrid Protocol on 
trademarks. 
 
--------------------------------------------- ------ 
Encouraging GoA Regulation of Existing Pro-IPR Laws 
--------------------------------------------- ------ 
 
¶5. (SBU) The efficacy of some potentially TRIPS-plus IP legislation 
has been limited by a lack of GoA follow-up in defining regulations 
that detail how the law is to be implemented.  For example, a 
December 2004 law authorizes Customs to detain/seize any IPR 
infringing imports and exports, a very positive step in patent, 
copyright and trademark enforcement.  However, GoA Customs 
authorities have not been able to enforce this law absent 
regulations that specify procedures.  Drafting and publishing these 
regulations would not require any further congressional action.  To 
expedite the regulation and implementation of this important law, 
Post is working with Economy Ministry and Customs authorities to 
break down inter-agency roadblocks and is briefing and encouraging 
American Chamber members, U.S. pharmaceutical players, and other 
diplomatic mission to engage the GoA independently on this. 
 
--------------------------------------------- ---- 
Coordinate Disparate and Weak GOA IPR Enforcement 
--------------------------------------------- ---- 
 
¶6. (SBU) Rampant IP piracy and counterfeiting are directly linked to 
a lack of coordinated efforts by GoA law enforcement agencies, 
including Customs authorities and both federal and provincial 
police, prosecutors and judges.  To address this, Post is organizing 
a DOJ-sponsored program in August that will bring together many of 
these GoA IPR enforcement entities, along with private 
representatives of IPR interests, to facilitate the development of 
an Argentine-specific "best practices" manual of how to process an 
IPR violation from investigation to court case. 
 
¶7. (SBU) Separately, GoA tax and customs authorities have formed an 
Anti-Piracy Committee, with private sector participation, to solicit 
intelligence on trademark infringing shipments.  Post's IPR officer 
is participating in the committee's monthly meetings to monitor 
progress, seeking to identify areas where USG or additional U.S. 
private sector assistance can be helpful.  Post's Immigration and 
Customs Enforcement office has arranged for the Department of 
Homeland Security in Washington to offer technical assistance to 
Argentine Customs as they attempt to get the registry off the 
ground.  Post is also working with local representatives of the 
movie and music industries to encourage their active cooperation of 
local law enforcement to better target enforcement efforts. 
 
--------------------------------------- 
Education: Training and Public Outreach 
--------------------------------------- 
 
¶8. (SBU) To develop a culture of IP compliance in Argentina, it is 
essential to change the widespread perception that IP crimes do not 
hurt Argentine interests.  Significant USG and private sector 
resources are available to train GoA officials.  These include funds 
from USPTO, DOC, as well as State/PAS and also possibly from the 
local business chamber (CAEMe) representing research-based 
pharmaceuticals in Argentina.  USPTO has offered partial funding to 
permit additional GoA patent and trademark officials to attend 
training courses.  CAEMe has agreed to consider helping fund per 
 
diem expenses of some GoA officials attending USPTO-sponsored 
courses. 
 
¶9. (SBU) Post also hosted AmCham's launch of a contest, aimed at 
college students and young professionals, to increase awareness of 
the value of IP protection (Ref C).  AmCham intends this to be the 
first of many contests, some of which will be directed at other 
demographics, and Post will continue to work with the AmCham as such 
efforts increase. 
 
¶10. (SBU) Embassy will seek to use outreach opportunities by all 
sections to emphasize the value for Argentina in protecting 
innovation.  All Embassy officers will be offered pro-IPR theme 
talking points to use in public presentations, especially at youth 
audiences.  The emphasis will be on the benefits for Argentina of 
improved IP protection for creative content.  Our first such effort 
under this plan was an editorial, with the Ambassador's byline, 
published in business-oriented daily "El Cronista Comercial" (ref 
C).  The editorial highlighted the future importance for young 
Argentines of better protection for creative efforts, and cited the 
recent news that Argentine scientists found a way to get cows to 
produce insulin. 
 
---------------------------- 
Data Confidentiality/Linkage 
---------------------------- 
 
¶11. (SBU) Flaws in the GoA IPR regime have hit the Argentine 
research-based pharmaceutical industry particularly hard.  One of 
these flaws is the issue of data confidentiality - ensuring that 
private information belonging to one company, especially research 
data developed to determine the safety and efficacy of a new 
medication, remains private and not used by another company. 
Another major issue is linkage, which would make health authority 
approval of a new medication contingent upon a check that no 
conflicting patent or patent application exists.  Under Argentine 
law, market approval decisions about products are unrelated to 
patents (i.e., there is no linkage).  Instead, the GoA must accept 
safety and efficacy data belonging to the company that did the 
research, along with the approval by health authorities in one of 
several foreign countries, including the U.S.  However, this 
information is often presented in Argentina by a company that wishes 
to market illegal copies.  Accepting the data in such cases appears 
to violate the principle of "data confidentiality" found in TRIPS 
Article 39.3.  Finding a solution to either or both of these 
problems will probably require either new legislation or an 
executive decree, neither of which will be easily obtained. 
However, Post has already begun working closely with pharmaceutical 
firms (Ref D) to develop a strategy to make progress in this 
difficult area. 
 
------- 
Comment 
------- 
 
¶12. (SBU) It is clearly in the USG's interest to improve IP 
protection in Argentina.  It is also very much in the interest of an 
Argentine nation with a well-educated, creative population.  Post's 
IP action plan is a Mission-wide initiative that seeks to build a 
culture of IP compliance and to work with the GoA improve Argentine 
IP enforcement mechanisms.  We have circulated copies to our IP 
action colleagues in the region who share similar concerns and look 
forward to sharing thoughts and ideas with them to identify areas 
where coordinated efforts may be worthwhile. 
 
¶13. (U) To see more Buenos Aires reporting, visit our classified 
website at:  http://www.state.sgov.gov/p/wha/buenosaires.< /a> 
 
WAYNE