VZCZCXYZ0000
RR RUEHWEB

DE RUEHSJ #0168/01 0711858
ZNR UUUUU ZZH
R 121858Z MAR 09
FM AMEMBASSY SAN JOSE
TO RUEHC/SECSTATE WASHDC 0578
INFO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE
RUEHME/AMEMBASSY MEXICO 5054
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC

UNCLAS SAN JOSE 000168 
 
SENSITIVE 
SIPDIS 
 
EEB/TPP/IPE FOR JURBAN AND SKEAT 
PLEASE PASS TO DOJ FOR BLIPMAN 
PLEASE PASS TO USTR FOR DOLIVER, AMALITO AND GVETERE 
 
E.O. 12958: N/A 
TAGS: ETRD ECON KIPR PGOV PREL CS
SUBJECT: COSTA RICA: STRATEGY FOR ADVANCING IPR 
 
REF:  A) 07 SAN JOSE 0335 
B) 08 SAN JOSE 0155 
C) 09 SAN JOSE 0138 
 
¶1.  (SBU) SUMMARY: Post leveraged the February 10-14 visit by 
Department of Justice OPDAT Program Director Robert Lipman and U.S. 
Judge Virginia Hernandez Covington to advance our three-point 
strategy on intellectual property rights (IPR) enforcement.  Our 
strategy seeks to (1) facilitate USPTO, DOJ, and other sources of 
training for the Costa Rican judiciary, (2) encourage greater IPR 
cooperation between other Latin American countries and Costa Rica, 
and (3) collaborate on private sector IPR lobbying/pursuit of IPR 
case resolution.  Our aim is to slowly move the cause of IPR ahead 
in Costa Rica, despite the minimal engagement of the Attorney 
General (AG) on these issues. Lipman and Covington met with a broad 
sampling of stakeholders (including the AG, and Mexican prosecutors, 
via a DVC) in order to present a thorough overview of IPR issues. 
Specific next steps include:  pursuing DOJ-offered training for 
judges at Costa Rica's Judicial School, supporting a private sector 
alliance for prosecuting IPR crimes, engaging the AG's office on 
training opportunities for prosecutors, and encouraging further 
collaboration with the GOM and other regional countries on IPR 
training and DVC exchanges.  END SUMMARY. 
 
------------------------------ 
SESSIONS WITH THE STAKEHOLDERS 
------------------------------ 
 
¶2. (SBU) The Lipman/ Covington February 10-14 visit provided us the 
opportunity to engage with a variety of stakeholders on IPR issues. 
We arranged for meetings with the following institutions/ groups: 
 
-- Judicial Investigative Agency (OIJ, FBI-equivalent); 
-- University of Costa Rica; 
-- National Registry (similar to USPTO in function); 
-- Ministry of Public Security; 
-- Judicial School; 
-- Judicial branch IP attorneys; 
-- Costa Rican Attorney General; 
-- a forum of private sector executives; 
-- a forum of judicial and legal officials; and 
-- a DVC collaboration with Mexican IPR prosecutors (courtesy of 
Embassy Mexico City). 
 
¶3. (SBU) Typically, DOJ conducts a training module when it arrives 
in country.  However, due to the unique IPR circumstances in Costa 
Rica -- recently passed legislation as part of CAFTA-DR entry into 
force (EIF), an AG independent of the executive branch, and a lax 
legal environment (Refs A, B, and C) -- Post and DOJ decided a 
series of meetings with stakeholders would generate the best 
information and guide overall engagement on IPR and tactics for IPR 
training in Costa Rica. 
 
----------------------- 
PROFILE OF AN OBSTACLE 
---------------------- 
 
¶4.  (U) As reported in previous Special 301 Reports (Refs A, B, and 
C), the office of the Costa Rican AG sits in the judicial branch, 
(fiercely) independent of the executive branch.  Within the judicial 
branch, the President of the Judiciary (the President of the Supreme 
Court) has only nominal authority over the office of Attorney 
General.  Thus, the AG office holder, in this case, Francisco 
Dall'Anese, exercises broad powers and exerts independence from the 
other branches of government including the judiciary. 
 
¶5. (SBU) Currently, our relations with the AG are cordial and 
formal.  The formal aspect results from the AG's requirement that 
all contact with the office of the AG on any issue, consular, 
judicial, anti-drugs, trafficking in persons, IPR, etc., be 
channeled through the Director, Office of Technical Assistance and 
International Relations, Andrea Murillo.  This "gatekeeper" approach 
tends to constrain the pace and efficiency of communication. 
Dall'Anese was re-elected to a second four-year term in late 2007, 
but our contacts speculate that he is unlikely to run for a third 
term in 2011. 
 
¶6.  (U) Regarding IPR, the AG repeatedly states two issues: 
 
-- the AG's office does not have the resources to pursue IPR crimes 
given other priorities, i.e. prosecuting two former Presidents and 
organized crime; and 
 
-- the private sector has the resources so it should prosecute IPR 
crimes through civil and/or criminal action. 
This publicly stated position posed a difficult issue for the GOCR 
during CAFTA-DR implementation.  The Ministry of Foreign Trade 
(COMEX) agreed to USTR's request to establish a special IPR 
prosecutor's office, which required then Vice President Laura 
Chinchilla (now a presidential candidate) to request the AG to 
establish the office.  The AG committed to assigning responsibility 
for IPR issues to an individual within the Miscellaneous Crimes 
unit, but not to setting up a dedicated unit/office per se.  Thanks 
to USPTO and DOJ training opportunities in late 2008, we were able 
to establish relations with the Miscellaneous Crimes issues (through 
Director Murillo). 
 
------------------------------------ 
ALTERNATIVE PATHS AROUND AN OBSTACLE 
------------------------------------ 
 
¶7.  (SBU) Considering the AG's IPR views and tactics, we designed a 
three-point strategy for achieving IPR progress in the short and 
long run, which, we hope, will chip away at resistance in the 
judiciary. 
 
-- First, invite all relevant components of the judiciary to as many 
IPR-related training sessions (USPTO, DOJ, etc.) as possible.  In a 
conversation with the Ambassador in August 2008, Supreme Court 
President Luis Paulino Mora indicated his interest in DOJ training 
while affirming that there is a "cultural or reluctance" in Latin 
America against IPR prosecution.  We will use his interest to help 
support our efforts (even if the AG's office is less cooperative at 
times); 
 
-- Second, in the interest of broadening the horizons of Costa Rican 
prosecutors and attorneys, we contacted other U.S. Embassies in the 
region to identify IPR prosecutors/ supporters working on the 
frontline of enforcement.  During the Lipman/ Covington visit, a DVC 
linked Mexican IPR prosecutors (broadcasting from Embassy Mexico) 
with Costa Rican prosecutors (broadcasting from Costa Rican 
prosecutor's office).  The exchange produced an informative 
dialogue.  In terms of pursuing cases and the formal organization of 
IPR within the respective judiciaries, Mexico is certainly ahead of 
Costa Rica.  As a result of the DVC, Mexico offered to help Costa 
Rica with IPR training.  (COMMENT:  Embassy San Jose thanks Econoff 
Joseph Salazar of Embassy Mexico for making the arrangements with 
Mexican IPR prosecutors and facilitating the DVC in Embassy Mexico 
City.  END COMMENT); and 
 
-- Third, the Costa Rican private sector maintains a very different 
view of IPR than the AG and believes that innovation must be 
protected.  During the Lipman/ Covington visit, key officials from 
AmCham, the chamber of exporters, the chamber of information and 
communications technology, and private law practices met with 
Lipman, Covington and Emboffs to advance the idea of the private 
sector aggressively pursuing IPR cases through a cooperative 
alliance.  Cases could be civil or criminal, since Costa Rican law 
allows for private parties to pursue criminal cases in loose 
cooperation with the AG's office.  Such legal actions would 
(hopefully) force the judiciary to recognize the importance of IPR 
protection to Costa Rican commerce and highlight the issue in the 
local media. 
 
¶8.  (U) Separate but related to our efforts, COMEX is strongly 
supporting the IPR Council, a multi-agency body that meets weekly to 
discuss IPR issues.  Headed by the Ministry of Justice, the 
Council's members include representatives from the Ministries of 
Public Security, Science and Technology, and Trade (COMEX); Customs; 
the National Registry; the Judicial School; the Judicial 
Investigative Agency; and the Fiscal General.  Adriana Chaves, a 
prosecutor and a recipient of DOJ IPR training in late 2008, 
represented the Fiscal General at the most recent meeting. 
 
---------------------------------- 
GOALS FOR THE SHORT- AND LONG-TERM 
---------------------------------- 
 
¶9.  (SBU) The goals of our three-point IPR strategy (training, 
international collaboration, and private sector support) are A) to 
better collaborate with the Costa Rican judiciary in a variety of 
ways and B) to produce cases for prosecution by way of private 
sector pressure and involvement.  Since Supreme Court President Mora 
in essence requested training assistance, we will provide it, using 
USPTO, DOJ, and even other countries in order to keep IPR issues on 
the judiciary's radar screen.  Meanwhile, the private sector will 
mount a "flanking attack" by introducing cases into the court system 
which will be heard by some judges with USPTO and/or DOJ training. 
In the long run, i.e. post-2011, when Dall'Anese will likely have 
left office, we hope that the USG-provided training and the cases 
pushed by the private sector will have changed the "culture of 
reluctance" sufficiently so that prosecutors and judges will 
understand the importance of IPR enforcement and be more willing to 
prosecute cases. 
 
--------------- 
ONE OTHER LEVER 
--------------- 
 
¶10.  (SBU) The USG retains one other lever, of course, in the form 
of the Special 301 Report.  With the necessary legislation in place, 
2009 will be an interesting trial for Costa Rica's IPR resolve.  We 
hope that the GOCR will make good use of training and collaboration 
opportunities this year. 
 
--------- 
NOW WHAT? 
--------- 
 
¶11.  (U) In the wake of the Lipman/ Covington visit and the Mexican 
DVC, Post has several immediate initiatives to pursue: 
 
-- a DOJ training session for judges at the Judicial School (in 
June); 
 
-- a meeting of the private sector alliance to outline a plan for 
lobbying and for prosecuting IPR crimes.  The lobbying campaign 
would press the judiciary to prosecute IPR crimes, and the 
legislature to approve the yet-to-be passed, IPR-related 14th 
CAFTA-DR bill); 
 
-- continued dialogue with the AG's office to determine what type of 
training is appropriate for IPR staff prosecutors; 
 
-- provision of DOJ software -- the Real-Time Analytic Intelligence 
Database (RAID) application in Spanish -- to the Judicial 
Investigative Agency (OIJ) at no cost (COMMENT:  Investigative 
analysts and document examiners in law enforcement use RAID to 
provide document and evidence intelligence in a distributive 
computer network environment.  END COMMENT); and 
 
-- Mexican training of IPR staff in the office of the AG. 
 
------- 
COMMENT 
------- 
 
¶12.  (SBU) Ultimately, we cannot predict how successful our 
three-point strategy may be, but it underscores our commitment to 
focus Costa Rican attention on the IPR issue.  We position our 
argument not only as a CAFTA-DR obligation but also as a fundamental 
building block to Costa Rican commerce and the arts since innovation 
and creativity are the basic ingredients of a flourishing business 
and cultural environment.  We welcome any change, no matter how 
incremental, on the part of the AG regarding IPR enforcement. 
However, we also believe that the most progress can be gained by 
working around the AG, marking progress with cooperative partners in 
the quest of small victories now, while preparing for what we hope 
will be a more dramatic, positive shift in the attitude of the 
office of the AG in the future. 
 
CIANCHETTE