One of the biggest criticisms to the Intellectual Property (IP) system in Colombia is the lack of specialized judges. As, it has been widely accepted that having judged specialized in a legal area, in this case it will lead not only to resolve the IP controversies in a more accurate way from the technical point of view but also to more agile prosecutions and faster decisions.
Colombia has been identified as one of the countries in world where takes longer to resolve lawsuits.
According to the ’Doing Business 2011’ report of the World Bank, a lawsuit in Colombia lasts on average about 1,346 days, compared to an average of 707 days in the rest of South America, or the 402.2 days of the countries from Europe and Central Asia. That means that in Colombia a Court may take three times longer than it takes in Europe to resolve a legal controversy.
However, thanks in part to pressure from the United States following the signing of the Free Trade Agreement (FTA), the country has recently made several legislative changes to advance in this area so we can definitively overcome this shortcoming of system. The first step was through the Law 446 of 1998 and Law 1480 of 2011 (Consumer Statute) that granted judicial functions to the Patent and Trademark Office, ie the ability to act a judge or a court, in relation to processes related to consumer protection, unfair competition, and protection of personal data.
The second change, and most significant, was made in July 12, 2012 when the new Law 1564 of 2012 (or "General Code of Procedure") was enacted. In Intellectual Property matters, the "General Code of the process" in paragraphs 1 and 3 of Article 24, provided that the Patent and Trademark Office (PTO) in Colombia shall have judicial functions in the legal controversies concerning: a) Violation of the rights of the consumers laid down in the Statute of the consumer. b) Violation of the rules relating unfair competition and c) infringement of Industrial Property rights.
To comply with "General Code Process" the PTO, through Resolution 4356 of 2012 created the Delegate to Jurisdictional Issues, and earlier this year appointed Dr. Felipe Garcia Pineda as Deputy Superintendent for Jurisdictional Affairs.
Furthermore, the "General Process Code", Article 24, paragraph 3, items b and c, states that The Copyright Office (Dirección Nacional de Derecho de Autor) will have jurisdiction in the processes related to copyright and related rights. On the other hand, and the Colombian Plant Patents Office (Instituto Colombiano Agropecuario) will have jurisdiction in proceedings regarding infringement of the rights of plant breeders.
We must remember that any lawsuit filed before these offices, will be prosecuted in the same terms as it if it was filed before any tribunal, court or judicial office. That means the both Courts and IP Offices will be ruled by the same rules and terms set out by the Code.
This law comes into force automatically, as it was established by the Code itself, which established that the before mentioned disposition shall took effect from its date of enactment, ie from July 12, 2012. From that moment any citizen or entity is able to file before any of the Offices before mentioned a lawsuit regarding Intellectual Property.
As we have mentioned before, unfair competition lawsuits were being filed before the PTO since mid-2012, but only from the beginning of 2013 they began accept the filing of patent related lawsuits. The numbers are encouraging: To date there have been about 30 patent related lawsuits already filed before the PTO and many more are expected to be filed.
If it is still too early to assess the results of this law, we consider it important to celebrate the great progress that has been made to expedite the resolution of lawsuits related to IP issues in Colombia, and to share with our colleagues and clients that to date already exists specialized judges nationwide that will help to guarantee a more technical and more swift justice.