Brazil Finalizing Additional IPR/Services Retaliation List as Cotton Deadline Looms
Brazil's Ministry of Development, Industry, and Foreign Trade (MDIC) announced on June 11, 2010 that it is finalizing its retaliation worth $238 million against U.S. intellectual property rights and services, due to the U.S.’ noncompliance in the World Trade Organization upland cotton dispute.1
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Both New IPR/Services and Delayed 100% Duty Retaliations are Pending
MDIC states that Brazil’s IPR and service retaliation measures are awaiting both final approval by the President and the outcome of current negotiations with the U.S. regarding the dispute. According to Brazil, the IPR countermeasures, as well as the delayed retaliatory duties of up to 100% against certain U.S. goods2, are set to kick in on June 21, 2010, when the deadline for negotiation expires.
(In April 2010, the U.S. and Brazil announced that they had agreed on a “path forward” for resolving the cotton dispute which involved certain preliminary concessions made by the U.S., followed by a negotiation period in order to find a mutually agreed solution to the dispute.3)
March 2010 Proposed IPR and Services Retaliation
In March 2010, MDIC posted the following English translation of the IPR and services retaliation countermeasures it was proposing to take. It is not known how similar the final list will be to the one proposed in March. The countermeasures proposed in March were:
| 01 | Subtraction, for a determined period of time, of the term of protection for patent rights on products or processes with respect to medicines, including medicines for veterinary use. |
| 02 | Subtraction, for a determined period of time, of the term of protection for patent rights on products or processes with respect to agricultural chemical products. |
| 03 | Subtraction, for a determined period of time, of the term of protection for patent rights on agricultural biotechnological products or processes. |
| 04 | Subtraction, for a determined period of time, of the term of protection for patent rights on plant varieties. |
| 05 | Subtraction, for a determined period of time, of the term of protection for copyrights and related rights concerning modalities of public musical performance. |
| 06 | Licensing of patents on products or processes with respect to medicines, including medicines for veterinary use, without the authorization of the right holder and without remuneration. |
| 07 | Licensing of patents on products or processes with respect to agricultural chemical products, without the authorization of the right holder and without remuneration. |
| 08 | Licensing of patents on agricultural biotechnological products or processes, without the authorization of the right holder and without remuneration. |
| 09 | Licensing of copyrights and related rights on literary works, without the authorization of the right holder and without remuneration. |
| 10 | Licensing of copyrights and related rights for the broadcasting to the public of audiovisual works, without the authorization of the right holder and without remuneration. |
| 11 | Suspension of the holder’s exclusive right to prevent the importation and domestic marketing of medicines, including medicines for veterinary use, which incorporate patent rights, even where the imported product has not been placed in a foreign market directly by the intellectual property right holder or with his/her authorization. |
| 12 | Suspension of the holder’s exclusive right to prevent the importation and domestic marketing of agricultural chemical products which incorporate patent rights, even where the imported product has not been placed in the external market directly by the intellectual property right holder or with his/her authorization. |
| 13 | Suspension of the holder’s exclusive right to prevent the importation and domestic marketing of agricultural biotechnological products which incorporate patent rights, even where the imported product has not been placed in the external market directly by the intellectual property right holder or with his/her authorization. |
| 14 | Increase of existing fees or institution of additional charges due to the National Institute of Industrial Property -- INPI -- in procedures related to the registration (including acquisition and maintenance) of intellectual property rights. |
| 15 | Increase of existing fees or institution of additional charges due to the National Service for the Protection of Plant Varieties -- SNPC -- in procedures related to the registration (including acquisition and maintenance) of intellectual property rights. |
| 16 | Increase of existing fees or institution of additional charges due to competent bodies in procedures related to the registration of copyrights and related rights. |
| 17 | Application of duties of a commercial nature on the remuneration due to intellectual property right-holders in respect of patents. |
| 18 | Application of duties of a commercial nature on the remuneration due to intellectual property right-holders in respect of trademarks. |
| 19 | Application of duties of a commercial nature on the remuneration due to intellectual property right-holders in respect of copyrights and related rights (except rights on computer programs). |
| 20 | Application of duties of a commercial nature on the remuneration due to intellectual property right holders in respect of copyrights and related rights concerning computer programs. |
| 21 | Mandatory registration for the acquisition and maintenance of economic copyrights and related rights. |
1In August 2009, the World Trade Organization authorized Brazil to impose millions of dollars in countermeasures against the U.S. due to its failure to comply in the U.S.-Brazil upland cotton dispute. (See ITT’s Online Archives or 09/01/09 news, 09090110, for BP summary.)
2Increased duty rates of 12 to 100% were to take effect on April 22, 2010 on $591 million of U.S. products classified in over 100 tariff numbers. The increased duty rates would have replaced Brazil's existing duty rates for the listed U.S. products. (See ITT's Online Archives or 03/09/10 news, 10030910, for BP summary listing the U.S. products set for retaliation.)
3The U.S. agreed to three concessions (funding to support Brazilian cotton programs, modifications to the GSM-102 operations, and modifications of certain Brazilian disease status) as a precondition for negotiations on resolving the dispute. The negotiations were set to end by June 21, 2010. (See ITT’s Online Archives or 04/21/10, 04/07/10 and 04/06/10 news, 10042126, 10040705, and 10040605, for BP summaries.)
(See ITT’s Online Archives or 03/19/10 and 03/16/10 news, 10031915 and 10031615, for BP summaries of Brazil’s proposed IPR/service retaliatory measures, which it released for public comment on March 15, 2010.)