Intellectual and Industrial Property

The proposal and implementation of IP policies

The implementation, and in some cases proposal, of IP policies is the duty of all the services. In practice, in order to achieve greater coordination (specifically, in the implementation of treaties), an inter-ministry IP committee named Direcon has been created, which as of now is administered by MINREL. It does not, however, bring together every organism, agency, or service related to the matter and its mandate is limited to international topics, particularly in commercial areas. INAPI has also coordinated various services and agencies on matters in common, such as the enforcement (2) of and dissemination of information on IP.

Registration of rights

The registration and administration of IP rights is entrusted to the Agriculture and Livestock Service (SAG), the National Institute of Industrial Property (INAPI), and the Department of Intellectual Rights (DDI). The objective of registration and the process to obtain them depends on the right in question. In the case of copyright, for example, since the right stems from the sole act of creation, the registration does not create the right but instead provides assurance as to its existence.

Enforcement

Lastly, the IP system requires organisms devoted to its enforcement and to ensuring that rights are respected. Enforcement duties have traditionally been separated from the duties of granting rights, in order to provide a higher degree of objectivity and safeguarding both for users of the system and for the general public. At the same time, the policing of IP requires training, capacitation, and equipment, which are not within the capability of an intellectual property office.

Organisms and their responsibilities

a) National Institute of Industrial Property (INAPI)

INAPI is a technical and judicial public decentralized service responsible for administering and attending to industrial property matters.

The Institute is responsible for the registration of trademarks, patents, industrial designs, appellations of origin, and topographies of integrated circuits, as well as being a court of first instance in opposition and invalidity trials. Additionally, the law grants it three other important functions: (i) to promote the protection that industrial property rights grant and to disseminate the technological assets and information it has access to (Article 2, Law No. 20,254 establishing the National Institute of Industrial Property); (ii) be the consultative and advisory body for the President of the Republic in industrial property matters and provide information, on demand, on bills and other legislation on the matter; and (iii) advise on the signing of international treaties and interact with foreign authorities and international entities on the topic. It communicates with the President of the Republic through the Ministry of Economy.

In order to carry out its functions, INAPI has at its disposal the following sub-directorates: Trademarks, Patents, Law, Knowledge Transfer, and Operations, as well as the Administrative Division and a group of professionals in direct association with the National Directorate. The latter are primarily experts on industrial property responsible for the formulation of legislation, providing technical opinions on diverse international forums, and advising other state organisms on industrial property matters.

There are also professionals and administrators in the main areas of business who work in analyzing filed applications in preliminary and substantive examinations with an end to determining whether or not a right should be granted.

b) Agricultural and Livestock Service (SAG)

SAG is a public decentralized service in charge of aiding in the development of agriculture, forests, and livestock, through the protection and improvement of the health of animals and plants. Its mission statement is to protect and improve productive resources in forestry and agriculture, the natural renewable resources of the country, and the safety of farming materials and foodstuff, in order to support the sustainable and competitive development of the forestry and agricultural sector. (3)

SAG participates in intellectual property matters in three respects: (i) SAG’s Seed Division is in charge of the registration of protected plant varieties. In Chile, plants cannot be patented, but new varieties can be protected through plant variety certificates issued by SAG; (ii) without prejudice to INAPI administration of geographical indication and appellation of origin registrations of all types of national and foreign products, SAG legally issues certain types of appellations of origin (Pisco, Pajarete, and Vino Asoleado) and decrees (zoning for wine-growing); (iii) finally, in accordance with what is established in Article 89 and the following articles in the Law on Industrial Property, SAG is also responsible for the protection of “undisclosed information” on agricultural chemical products. SAG communicates with the President of the Republic through the Ministry of Agriculture.

In order to be registered, a plant variety must be demonstrably new, distinct, stable, and homogeneous. The procedure requires the filing of an application for registration with SAG, which, like INAPI, analyzes the proof of the requirements and decides whether or not to grant the right. The Seed Division employs agricultural engineers at a central level dedicated to the registration of protected varieties. It also employs agricultural engineers at a regional level in charge of field testing. Plant varieties, just like other intellectual property rights, are vital to the agricultural industry and to the process of making Chile an “agri-food powerhouse”.

Finally, with regard to registration and databases, the protection of plant varieties has the objective of incentivizing not only innovation but also welfare, through the dissemination of breakthroughs in genetic research.

c) Department of Intellectual Rights and the Cultural Council (DDI and Consejo de la Cultura)

In the last decade, the responsibility for the handling of copyright matters has been divided between different institutions. While the work of registering copyrights has always been the responsibility of the Department of Intellectual Rights (DDI), a subsidiary of the Directorate of Libraries, Archives, and Museums (DIBAM), under the control of the Registrar of Intellectual Property, policies were established by the Judicial Division of the Ministry of Education and, more recently, by the National Council of Culture and Arts. The latter, for example, acted as coordinator in the processing of Law No. 20,435, which revised the Law on Intellectual Property (Copyright) and was enacted in April 2010.

Today, DDI is in charge of all original work. The concept of “original work” incorporates aspects which are considerably broader than normally thought. In accordance with Law No. 17,336 on Intellectual Property and international treaties, copyright protects not only artistic works but also software and original databases.

International stage

At an international level, the World Intellectual Property Organization (WIPO) is a specialized United Nations organism. Its mission statement is to develop an international intellectual property system that is fair and accessible, that rewards creativity and stimulated innovation, and that contributes to economic development, while at the same time safeguarding public interest. WIPO is in charge of administering practically every international treaty that is relevant to IP matters. Other organisms involved in IP matters are the World Trade Organization (WTO) and the World Health Organization (WHO), to name a few.