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Andean Community

The Andean Community (previously known as the Andean Pact) is a regional integration organization comprising four countries in South America: Bolivia, Colombia, Ecuador, and Peru. It was established in 1969 by the Cartagena Agreement. Chile was briefly a member from 1969 to 1976, whereas Venezuela had joined in 1973 but withdrew in 2006.

The Andean Community has a legal framework for patents called the Decision 486 on the Common Industrial Property Regime, which provides a uniform system for the protection of patents.

Software patents

Decision 486 has a section on patentable subject-matter, which also mentions computer programs. According to Article 15:

15. The following shall not be considered inventions:

(a) discoveries, scientific theories and mathematical methods;
(b) the entirety or part of living beings as encountered in nature, natural biological processes, biological material existing in nature or which may be isolated, including the genome or germ plasm of any natural living being;
(c) literary and artistic works or any other work protected by copyright;
(d) plans, rules and methods for the pursuit of intellectual activities, the playing of games or the conduct of economic and business activities;
(e) computer programs or software as such; and
(f) methods of presenting information.

The use of as such allows the national patent offices of the Andean Community to grant software patents by interpreting it as nullifying the exclusion.

Examination guidelines

The Andean Patent Manual was originally published in December 2004. According to WIPO Magazine, the Manual was influenced by the EPO:[1]

The Manual is the outcome of a meticulous process of consensus building between the industrial property offices of the five Andean countries over a four year period. In 2000, at the request of the Andean Community Secretariat, WIPO, together with the European Patent Office (EPO) and with the contribution of the Mexican Industrial Property Institute, began a regional consultation process, which led to a first draft. While consideration was given to international legislative developments, the manual was drafted strictly according to the Andean law in force (Decision 486) and following the regional case-law practice, particularly from the Andean Tribunal Court of Justice, the sole body with a mandate to interpret the Andean regional legislation.

2004 version

The 2004 version of the Manual mentioned computer programs very briefly in section 6.2.7:

[Computer programs] cannot be considered inventions as such because they do not have a technical character, the computer programs acquire that technical character only at the moment in which they are part of an industrial process.

Lvcentinvs Blog suggests that the 2004 version's interpretation of Article 15(e) rejected the protection of any invention that included the use of computer programs.[2]

2022 version

The Manual was updated in September 2022. Patentability of computer programs is now detailed in great depth in section 7.7, which extends to 38 pages. It also makes use of the term "computer-implemented inventions" (invenciones implementadas por computador). Obviously, the Manual was adapted to follow North American and European practices that allow software patents.

It would be very valuable to go through the whole section (pp. 100–37) and add digested information here.


External links