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Viewing cable 09SANJOSE138, 2008 SPECIAL 301 REVIEW - COSTA RICA
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Reference ID | Created | Released | Classification | Origin |
---|---|---|---|---|
09SANJOSE138 | 2009-03-04 15:38 | 2011-03-21 16:30 | UNCLASSIFIED//FOR OFFICIAL USE ONLY | Embassy San Jose |
VZCZCXYZ0001
RR RUEHWEB
DE RUEHSJ #0138/01 0631538
ZNR UUUUU ZZH
R 041538Z MAR 09
FM AMEMBASSY SAN JOSE
TO RUEHC/SECSTATE WASHDC 0545
INFO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE
UNCLAS SAN JOSE 000138
SENSITIVE
SIPDIS
EEB/TPP/IPE FOR TMCGOWAN AND SKEAT
PLEASE PASS TO USTR FOR JGROVES AND GVETERE
E.O. 12958: N/A
TAGS: ETRD ECON KIPR CS
SUBJECT: 2008 SPECIAL 301 REVIEW - COSTA RICA
REF: A) 09 STATE 8410
B) 06 SAN JOSE 0464
C) 07 SAN JOSE 0335
D) 08 SAN JOSE 0155
E) 08 SAN JOSE 0959
-------
SUMMARY
-------
¶1. (U) Since last year's report (Ref D), the GOCR enacted a number
of laws related to Intellectual Property Rights (IPR) as required by
the Central American Free Trade Agreement (CAFTA-DR), but the
success in passing new IPR legislation highlighted the country's
failure to enforce existing laws. Costa Rica's Attorney General
publicly and repeatedly stated that Costa Rica should use its
limited investigative and prosecutorial resources to pursue violent
and drug-related crimes and instructed staff prosecutors to pursue
IPR cases only if they implied harm to people or the environment.
¶2. (U) Nonetheless, there was IPR progress. The Costa Rican
Industrial Registry issued many more patents than in recent years.
A number of Costa Rican officials received training in IPR
enforcement, administration, prosecution, and customs from USPTO,
DHS, WIPO, and others. The Judicial Branch, through the Judicial
School, has engaged in IPR training and wants to provide more
training opportunities for judges and prosecutors. Due to the
CAFTA-DR-related legislative gains (which required significant
political will by the executive branch), and improvements with
registrations, Post recommends that Costa Rica's ranking not be
lowered, and that the country remain on the Watch List for the 2009
Special 301 Report (Ref A). END SUMMARY.
----------------------------
IPR BACKGROUND IN COSTA RICA
----------------------------
¶3. (U) After a difficult and extended implementation review
process, CAFTA-DR entered into force (EIF) for Costa Rica on January
1, 2009. However, entry into force did not quiet CAFTA and IPR
critics. Issues related to IPR rose to the forefront of public
debate during the campaign leading up to the October 7, 2007
nationwide referendum to ratify the country's participation in
CAFTA-DR. Those opposed routinely spoke out against the Agreement's
requirements to create effective deterrents against IPR infringement
as well as protections for IPR, politicizing the issues. Opposition
leaders asserted that increased penalties for IPR violators would
"send students to jail for copying textbooks" and increased IPR
protection would bankrupt the local social security system since it
would be forced to purchase original, innovative pharmaceuticals
rather than generics. The Costa Rican public ultimately rejected
such arguments and approved CAFTA-DR by a slim margin, but the
negative campaign created an environment where issues related to IPR
remain politically controversial.
--------------------------------------------- --
NOW CAFTA-DR COMPLIANT. . .WITH AN IPR FOOTNOTE
--------------------------------------------- --
¶4. (U) After Costa Rica was included in the Priority Watch List in
2001, the country took the necessary steps to bring into force the
WIPO Copyright Treaty (WCT) and the WIPO Performance and Phonograms
Treaty (WPPT) on March 6, 2002 and May 20, 2002, respectively.
Costa Rica also ratified the Patent Cooperation Treaty (PCT). Costa
Rica posted incremental -- but limited -- IPR progress over the past
several years (Refs B and C).
¶5. (SBU) Since last year's Special 301 Report, Costa Rica made all
the necessary legislative reforms to comply with CAFTA-DR
obligations related to IPR. In recognition of meeting CAFTA
standards through legislative reforms, the United States Trade
Representative (USTR) certified Costa Rican CAFTA-DR compliance in
late 2008, paving the way for EIF a few weeks later. However, three
technical corrections remain for legislative action by the Costa
Rican national assembly. Packaged into one final piece of
legislation, the corrections (Ref E) must be passed into law by
January 1, 2010. Failure to do so will result in a holdback of
tariff preferences on a select category of Costa Rican export
products, most likely sugar. The Arias Administration is confident
that the process will be completed in 2009.
-------------------------------------------
. . . BUT SADDLED BY ENFORCEMENT CHALLENGES
-------------------------------------------
¶6. (U) Despite these legislative victories, real challenges remain
in effectively ensuring that the laws have an impact on the local
IPR environment. Throughout 2008, Costa Rica continued to falter in
enforcing its IPR laws, which criminalize counterfeiting and piracy.
The country's public prosecutors have consistently demurred from
prosecuting IPR cases unless they involve potential harm to people
or the environment. The prosecution of IPR crimes is handled by
public prosecutors in the "various crimes" divisions of the branch
offices of the Attorney General's office (in which an individual was
appointed with responsibility for IPR prosecution). Crimes related
to IPR form only a portion of the portfolio of these prosecutors and
receive little attention. Rather, the prosecutors tend to invoke
"opportunity criteria" (akin to prosecutorial discretion) to avoid
opening investigations into reported IPR crimes.
¶7. (U) The Attorney General of Costa Rica, Francisco Dall'Anese,
publicly and privately reiterated that he does not support diverting
limited resources to the prosecution of IPR crimes. Rather, he
maintains that private companies can seek redress in civil courts or
can initiate a criminal public action through private application.
By this process, a private party (almost always through an attorney)
files a complaint and jointly conducts the investigation and
prosecution of the case with the public prosecutor. While this
could be an effective means of prosecuting IPR violators, the
reality is that the private sector and the prosecutor's office have
yet to coordinate in a meaningful way. Likewise, the use of the
civil courts to pursue private cases against IPR violators is
hampered by the extreme length of time it takes to receive a civil
judgment (up to 15 years) and the small monetary damages awarded.
¶8. (SBU) Industry and others have asked Dall'Anese to halt the
nearly automatic use of opportunity criteria with IPR crimes, but he
has rebuffed their calls, and is in a position to do so. The
position of Attorney General in Costa Rica is entirely independent
of the Costa Rican Executive and Legislative Branches.
Constitutionally, the position falls under the Judiciary, but, in
practice, it is almost completely autonomous. Dall'Anese was
reelected to a second four year term as Attorney General in late
¶2007. (COMMENT: Knowledgeable local contacts tell us that
Dall'Anese is unlikely to run for a third term in 2011. END
COMMENT.)
¶9. (U) The few prosecutions that wound their way through the
criminal court system over the last two years were originally
started long before. In February 2008, industry successfully
concluded a prosecution against a counterfeiter of apparel. As has
been the case in previous successful IPR prosecutions, the judge
immediately paroled the convicted counterfeiter as it was her first
offense and the sentence was for less than three years. (COMMENT: No
matter the crime, judges in Costa Rica have the latitude to
immediately parole first-offenders who have been sentenced to less
than three years of prison. Judges generally use this power in all
criminal cases when it can be applied. END COMMENT.)
--------------------------------------
AT THE BORDER: ARE THE GOODS GENUINE?
--------------------------------------
¶10. (U) Officers within the FBI-equivalent Judicial Police (OIJ)
state that most counterfeit goods within Costa Rica are imported
from elsewhere rather than manufactured in the country.
Unfortunately, Costa Rica's Customs service continues to face
difficulties in halting the flow of counterfeit goods into the
country. The leadership of Customs is aware of the importance of
seizing pirated goods, but most customs agents lack the necessary
training to recognize counterfeits. Local industry has also
expressed an interest in providing counterfeit recognition training
to Customs officials.
¶11. (U) In addition, the laws regulating the filing of criminal
cases can impede the seizure of pirated goods at the border. If a
customs agent recognizes that a shipment contains pirated goods, the
agent can order the shipment seized for 48 hours. If, at the end of
that period, the holder of the IPR for the product involved has not
filed a criminal complaint against the importer, the customs agent
must either release the goods or file a criminal complaint. The
latter action can open the agent up to personal liability through a
countersuit by the importer if the criminal complaint is ultimately
unsuccessful.
¶12. (U) Recent changes in the law give the customs agent ten days
from seizure to file the criminal complaint, but the customs agent
continues to be personally liable if the complaint is unsuccessful.
Increased communication between Customs and industry would help
solve this problem by providing time for the owner of the trademark
or patent to file the police report. In such cases, even if the
prosecutor ultimately invokes opportunity criteria and abandons
his/her role in the criminal prosecution, the private party could
continue the action, aided by the fact that the goods have already
been seized by Customs.
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COSTA RICAN PATENT OFFICE: CAPACITY BY CONTRACT
--------------------------------------------- ---
¶13. (SBU) In 2008 the Costa Rican Industrial Property (IP) Office
of the National Registry finally began to address severe delays in
processing patent applications. Through 2007, patent attorneys in
Costa Rica related that the office had not yet begun processing
patent cases first submitted in 2004 and 2005. The table below
illustrates progress, although the backlog may take years to erase.
Number of Application Approvals
Year 2005 2006 2007 2008
Patent 13 4 13 53
Utility Model 0 1 1 2
Industrial Model 4 3 2 21
Industrial Design 1 1 - 15
TOTAL 18 9 16 91
Source: Industrial Property Registry
The IP Office informs us that in 2008 the office completed the
review of a total of 140 applications, approving the 91 shown above
and rejecting 49. While new patent applications are immediately
processed, there is still a backlog of about 1,200 patent
applications waiting for technical review.
¶14. (U) The IP Office believes that it is on the verge of hiring
five in-house patent examiners with training and experience in
specific areas of science and technology. It has taken several
years to create these positions. These in-house examiners will not
be hired within the Civil Service structure and therefore may be
paid salaries commensurate with their expertise. To date, the IP
office has relied heavily on contract relationships with the Costa
Rican Technical Institute and the Pharmacists Board Association to
provide experts to serve as outside examiners. The IP Office will
continue to use these and other outside examiners to move through
the backlog of patent applications.
¶15. (U) The World Intellectual Property Organization (WIPO) has
worked closely with the Costa Rican IP Office to train employees.
WIPO also offered training to officials in the judiciary that have
an interest in IPR. In addition, the U.S. Embassy sent eight Costa
Rican officials to the USPTO's Global Intellectual Property Academy
for training.
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USE/PROCUREMENT OF GOVERNMENT SOFTWARE
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¶16. (U) The 2002 Executive Decree #30, 151-J, mandated that all
government ministries use only legally-licensed computer software.
According to this decree, each ministry was to conduct an internal
audit and submit a statement of compliance no later than July 31,
¶2003. The government subsequently claimed full certification of all
ministries, although there had been no independent confirmation.
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COMMENT
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¶17. (SBU) In general, parts of the Costa Rican government, notably
the judiciary, do not yet view IPR as a tool to spur innovation.
The executive branch recognizes the value of IPR enforcement and
prosecution and the private sector wants judicial action on IPR
cases. After making progress in IPR legislation as instituted by
CAFTA-DR's entry into force, the focus of attention is now on the
judiciary and how it handles cases in a CAFTA-DR compliant IPR
regime.
¶18. (SBU) Therefore, based on the GOCR's progress to date in
improving the country's IPR framework -- legislative reforms,
political will in the executive branch, sharp increase in patent
application approvals, and receptivity to training opportunities --
Post recommends that Costa Rica remain on the Watch List. This is
the properly-modulated message, in our view. To lower Costa Rica's
standing immediately after the GOCR finally completed its CAFTA-DR
implementation obligations would be too harsh a signal. Such a move
would likely be viewed as provocative by the Arias administration,
which worked very hard to pass the necessary IPR legislation for
CAFTA-DR EIF. This would also be counterproductive to our low-key
but steady efforts to work with the GOCR and the private sector (and
around the Attorney General, if necessary) to improve IPR
protection.
CIANCHETTE