Dear Senators [Deputies]:

The American Chamber of Commerce of the Dominican Republic appreciates the opportunity to express its opinions on the proposed legislation covering patents and intellectual property. Patents, and intellectual property in general, are an important instrument for development for all countries.

We are confident that passage of the bills currently under discussion will generate an increase in trade relations between the Dominican Republic and the rest of the Members of the WTO.

We must begin by emphasizing that the Dominican Republic agreed to enact a new legal regime protecting trademarks, patents and copyright by January 1, 2000. Even more important than this deadline, however, is that the new laws be in compliance with the international obligations derived from TRIPs.

Thus, we wish to call your attention to the following points:

1. The principle of National Treatment in TRIPs Article 3 constitutes a pillar of the multilateral trading system governed by the WTO. This principle guarantees that the intellectual property protection available to a country's nationals is extended on the same terms and to the same extent to the nationals of all WTO members.

We recommend that the proposed patent legislation include a provision that derogates the Fianza Judicatum Solvi, the deposit foreigners are required to pay in order to bring claims before the courts in the Republic. We applaud the inclusion of this provision in the copyright bill and request that the same provision be included in the patent legislation.

2. Articles 42 et seq of TRIPs establish that procedures for enforcement of intellectual property rights be fair and equitable, not complicated or expensive, nor characterized by excessive delays. Thus, in addition to complying with the protection required by the agreement, it is important that the laws that are passed include procedures that guarantee compliance and implementation.

In order to achieve this goal, the patent bill should include a provision allowing for the liability of the directors and managers of firms that violate patent rights. Without such a provision, it will only be possible to prosecute individual persons for violations. A provision similar to the one proposed here has already been included in the copyright legislation.

3. Additionally, TRIPs permits limited exceptions to the rights granted to patent holders. Articles 30 and 31 provide the only basis in the agreement to permit the use of patents without authorization of the rights holder, what is commonly called compulsory licenses.

Specifically, Article 30 of TRIPs establishes that exceptions to the patent protections should not be unjustified, nor should they conflict with the normal use of the patent. Requests for compulsory licenses should be considered in the context of the circumstances of each individual case.

Thus, it is our view that a revision is necessary in the provision that authorizes compulsory licenses on the basis of the mere refusal of the rights holder to contract, even where no offense has been committed. Specifically, Article 40, number 1 of the bill establishes a type of license that, if approved as such, would not constitute limited exceptions to the patent rights granted.

The Dominican Republic is free to legislate remedies for abuse of patent through granting compulsory licenses that assure the well-being of the consumer. This type of license is included in the bill, but in addition, the granting of an automatic license where there is no fault of the patent holder, as discussed above, is also included. The latter, generalized license should be revised.

The American Chamber of Commerce wants to reiterate its gratitude to the Senate [Chamber of Deputies] for the opportunity to participate in the public review. We are also sure that the our observations will be considered by the Senators [Deputies] with the understanding that they will contribute to moving our country towards a more active participation in the globalized world.

Sincerely,

Alfonso Paniagua

President [of the American Chamber of Commerce of the Dominican Republic]