Venezuela IP News | PTO Scheduled to Resume (Online) Operations on April 27
Last Friday afternoon, the Venezuelan Intellectual Property Office issued an official notice informing the public that it would start accepting applications via e-mail effective April 27, 2020 (Original applications and its enclosures would need to be filed with SAPI once the quarantine in place is over and it fully resumes operations). The news come after more than a month of suspended activities due to a quarantine associated with the COVID-19 pandemic.
Although essentially positive, SAPI’s notice raises concerns and doubts over different aspects it did not expressly address, as well as legal implications thereof. As a result, COVAPI -the Venezuelan IP Agents Association- addressed a letter requesting further clarification from SAPI on such concerns and how applicants will be able to move forward with their applications.
We expect further developments, shortly. In any event, below are the main elements of SAPI’s notice that have caught our attention so far:
The Good:
SAPI's notice seems to be a clear attempt at resuming services and getting closer to some degree of normality by allowing for electronic filing of patents, trademarks and copyright applications amid complex times resulting from a global pandemic and a quarantine that put a halt on its operations.
The Bad:
In failing to provide for a deferred entry into force for its notice, and considering SAPI has implemented a mechanism that makes it almost impossible to file an application within less than 24-48 hours, it can be expected to have a negative effect on patent and trademark applications claiming foreign priorities that remained on hold, pending filing, since it suspended its operations. Such applications would necessarily need to be filed on the first day when SAPI resumes operations in order to secure a valid priority claim, pursuant to both article 4, Section C(3) Paris Convention for the Protection of Industrial Property and article 42 Organic Law on Administrative Procedures. Under both articles, where a deadline falls on a non-working day it will expire on the first following working day.
Furthermore, SAPI's notice is not clear about whether foreign applicants would be able to file applications as they have been required to pay official fees in foreign currency during the last couple of years. Failing to provide for means for filing applications by foreign applicants would further add to the unjust hurdles they are subjected to, and the further infringement of their rights and Venezuela's own Constitution and its laws.
Last but not least, and although SAPI´s notice comes as an extraordinary measure aimed at creating a positive effect on the public, accepting applications over an e-mail -instead of processing them through its own website- creates uncertainty as there does not seem to be an efficient method for providing an immediate proof of filing and for verifying the exact date and time thereof, for priority purposes. Prior problems associated with similar provisional or temporary measures implemented during times when SAPI’s offices were open and available for contact raise reasonable concerns about this issue.
The Ugly:
Despite the recent designation of new authorities, SAPI still seems to have little regard not only for the rule of law, but also for the rights of IPR applicants and holders and the constitutional guaranties they are entitled to, in that its decisions seem to be based on what it perceives to be correct at a specific moment in time -such as these complex COVID-19 days- yet no attention seems to be paid to legal constraints applicable to said office, nor to the need of applicants to count on transparent, reliable and consistent information and decisions from said office, and to the operational limitations imposed by the quarantine, including the country's lagging connectivity and SAPI's and the local banking industry's own technological deficiencies, which may restrict the efficient processing of payments official fees and the filing of applications.
Unofficial information from one of SAPI’s social media accounts -specifically from its Instagram account- seems to indicate that it would temporarily allow for foreign applicants to process payments using local currency. It could certainly be positive for SAPI to accept such payments, yet the lack of formality and transparency and the fact that it has not been formally expressed in its notice remains one of this office’s multiple shortcomings.
Click on the following link to access the official notice: https://1drv.ms/b/s!AjM7WXpJwWRQhJ0a5d-77CVlYJ5I8w
