THE ROOTS

OF INNOVATION
U.S. Chamber International IP Index | Fifth Edition | February 2017
 R&D
expenditure Access to
advanced
technologies

Access to
Access to licensed music
venture outlets
capital

Innovative Foreign direct

outputs investment
attractiveness

Cutting-edge Increase in
clinical high-value
research jobs

IP
 U.S. Chamber International IP Index | Fifth Edition

1. Foreword
Welcome to the fifth edition of the U.S. Chamber International IP Index, “The
Roots of Innovation.” This year’s index recognizes the indispensable role of
intellectual property (IP), in facilitating innovative and creative activity on a
socially transformative scale.

Each economy in the Index presents a unique IP profile. As this Index has
grown from 11 economies in its first edition to 45 in the current publication,
it has become exceedingly clear that just as elections matter, so do IP policy
choices. These choices are not simply a matter of East versus West, developed
versus less-developed, or rich versus poor. Rather, the Index represents a
broad spectrum of sovereign policy choices. Those choices have important
consequences for each economy’s innovative and creative success, and for the
collective welfare of all the world’s citizens.

In many ways, 2016 was a challenging year for global IP policy. New data revealed that the problem of global
counterfeiting has more than doubled since 2008, amounting to $461 billion annually. A strengthened global
benchmark for IP standards was delayed by political opposition to the Trans-Pacific Partnership Agreement.
Countries all around the globe—from the most established markets to fledgling new governments—grappled
with the question of whether to move forward, innovating and evolving in a new era of globalization.

Nevertheless, the record of five editions of the Index clearly shows that countries of every region, size, and income
level are increasingly investing in IP infrastructure as a tool for development, a stimulus for jobs and economic
growth, and a catalyst for domestic innovation and creativity.

The roots are well-established—let seven billion flowers of innovation and creativity bloom.
 
David Hirschmann
President and CEO
Global Intellectual Property Center
U.S. Chamber of Commerce

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THE ROOTS OF INNOVATION

2017 Overall Scores

35

30

25

20

15.22 15.24
14.83 15.14
15 14.34
13.95 14.06 14.18
13.23
12.70
11.78
10.97
10.34 10.59
10.05
9.53 9.64
10 9.34 9.38
8.75
8.37

6.88

0
Venezuela
Pakistan
India

Algeria
Egypt
Thailand
Indonesia

Argentina
Vietnam
Ecuador
Nigeria
Philippines

South Africa
Brazil

Kenya
Ukraine
Brunei
Peru
China
Chile
Colombia
UAE

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 U.S. Chamber International IP Index | Fifth Edition

32.39 32.62
31.92
31.29
30.87 30.99
29.86

28.31 28.62
27.48 27.73
27.07

25.39
24.05
23.00
22.27
21.44
20.59

17.19
16.87
15.80 15.98
15.53
Russia
Turkey
Saudi Arabia
Mexico
Malaysia
Taiwan
Canada
Israel
Poland
New Zealand
Hungary
Australia
Spain
Italy
South Korea
Singapore
Switzerland
France
Sweden
Japan
Germany
UK
U.S.

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THE ROOTS OF INNOVATION

2. Executive Summary
The world’s leading economies view intellectual Over the past five years, the U.S. Chamber’s
property (IP) standards as essential to the success of International IP Index has provided a valuable tool by
any 21st century economy. IP provides the living and which to gauge the global IP environment. Now, the
growing roots that stimulate innovation and bolster fifth edition of the Chamber’s Index, “The Roots of
growth. And those with the strongest IP systems stand Innovation,” offers a roadmap for policymakers and
to reap the greatest economic rewards. thought leaders to enhance their competitiveness
through stronger IP. It is a playbook for those looking
to attract the world’s best and brightest.

The 2017 Index benchmarks the IP standards in 45 global economies,

representing roughly 90% of global GDP:

Latin America and Africa and Europe and

Asia North America
the Caribbean Middle East Central Asia

Australia Argentina Algeria France Canada

Brunei Brazil Egypt Germany U.S.
China Chile Israel Hungary
India Colombia Kenya Italy
Indonesia Ecuador Nigeria Poland
Japan Mexico Saudi Arabia Russia
Malaysia Peru South Africa Spain
New Zealand Venezuela United Arab Emirates Sweden
Pakistan Switzerland
Philippines Turkey
Singapore UK
South Korea Ukraine
Taiwan
Thailand
Vietnam

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 U.S. Chamber International IP Index | Fifth Edition

Economies are scored against 6 categories of IP •. A number of countries, ranging from China and
protection: patents, copyrights, trademarks, trade Pakistan to the UAE and Sweden, introduced
secrets and market access, enforcement, and new enforcement mechanisms and specialized IP
ratification of international treaties. The 2017 Index courts to better combat counterfeiting and piracy.
includes 5 new indicators to better capture an
economy’s overall IP environment in a continuously •. Free trade agreements (FTAs), including the
evolving digital age. Additionally, the fifth edition TPP and the Comprehensive Economic Trade
includes an analysis of the standards included in Agreement (CETA), were signed in 2016, as
the Trade-Related Aspects of Intellectual Property well as a number of bilateral FTAs that helped
Rights (TRIPS) agreement and the final text of raise the bar for protection of life sciences IP,
the Trans-Pacific Partnership (TPP) against the copyrighted content online, and enforcement
benchmarks included in the Index. This analysis against IP theft.
illustrates the ways that trade agreements have
progressively raised the bar for IP standards around •. Multiple governments undertook a review of
the world in a 21st century global marketplace. their IP laws, recognizing that such laws must
keep pace with the emerging challenges IP
Key Findings owners face. In South Korea, amendments to
the Patent Law helped streamline and expedite
The 2017 Index reveals a number of IP trends that the patent examination process. Likewise, the
emerged over the past year. In a difficult global government of Taiwan began a review of its
environment, countries continue to make a conscious IP laws, in an effort to better comply with the
policy decision to invest in stronger IP. Even countries standards included in the TPP.
that have historically viewed IP negatively are
implementing nuanced changes to their IP systems. •. Economies recognized the value of leveraging
This illustrates the continued importance of IP international partnerships through Patent
investment for countries across all regions and levels Prosecution Highways (PPH). Countries that
of economic development. Positive IP developments signed PPH agreements in 2016 include
highlighted in the Index include the following: Argentina, Chile, Colombia, Mexico, Peru, the
Philippines, and Vietnam.
•. A pack of global IP leaders emerged among
the 2017 Index rankings, with the U.S., UK, Despite these positive developments, some countries
Japan, and European Union (EU) economies took steps to restrict IP rights in 2016:
ranked more closely together than ever. Notably,
Japan’s score increased by 10% since 2016 due •. Ecuador, Russia, and South Africa introduced
to the ratification of TPP and accession to the new requirements for local production,
treaties covered in the Index. procurement, and manufacturing.

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THE ROOTS OF INNOVATION

•. While the Indian government issued the Conclusion

National Intellectual Property Rights Policy in
2016, IP-intensive industries continued to face
In a changing global landscape, IP standards serve as
challenges in the Indian market with regard
the lasting, vibrant roots of innovation that will enable
to the scope of patentability for computer-
us to solve the world’s problems and meet future
implemented inventions, Section 3(d) of the
challenges. They are the standards that governments
Indian Patent Act, and the recent High Court
can bank on and that will allow industries to bloom.
of Delhi decision regarding photocopying
copyrighted content.

•. A number of governments attempted to limit

the scope of patentability via both judicial
decisions and legislation. While the Canadian
government continued to apply the heightened
patent utility standard, the Indonesian
Patent Law introduced a heightened efficacy
requirement for patentability and outlawed
second use claims.

•. Both individual governments and representatives

of the multilateral institutions encouraged
public officials to utilize compulsory licenses
and expanded exceptions and limitations in the
name of increasing access. In Colombia, the
government threatened to use a compulsory
license in an attempt to drive down the price
of innovative medicine, while in South Africa
draft copyright amendments proposed the
introduction of a fair use system.

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 U.S. Chamber International IP Index | Fifth Edition

Contents
1. Foreword........................................................................................................................ I

2. Executive Summary....................................................................................................IV

3. Overview of the International IP Index Fifth Edition............................................ 3

4. An Innovation Life-Cycle Perspective of the Benefits of IP Rights:

From Laboratory to Market ......................................................................................7

5. Assessing International Benchmarks and Standards Relative to the Index..... 12.

5.1 Benchmarking the TRIPS and TPP treaties against the Index........................... 12
5.2 TRIPS from the perspective of the Index............................................................ 12
5.3 TPP from the perspective of the Index...............................................................12

6. Global IP Policy in 2017 – Heading in Different Directions................................ 14

6.1 Overall results.......................................................................................................18

7. Economy Overviews..................................................................................................25
Algeria..........................................................................................................................26
Argentina......................................................................................................................28
Australia........................................................................................................................30
Brazil.............................................................................................................................32
Brunei............................................................................................................................34
Canada.........................................................................................................................36
Chile..............................................................................................................................38
China.............................................................................................................................40
Colombia......................................................................................................................43
Ecuador........................................................................................................................45
Egypt.............................................................................................................................47
France...........................................................................................................................49
Germany.......................................................................................................................51
Hungary........................................................................................................................53
India..............................................................................................................................55
Indonesia......................................................................................................................57
Israel..............................................................................................................................59
Italy................................................................................................................................61
Japan............................................................................................................................63
Kenya............................................................................................................................65
Malaysia........................................................................................................................67
Mexico..........................................................................................................................69
New Zealand................................................................................................................71

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THE ROOTS OF INNOVATION

Nigeria..........................................................................................................................73
Pakistan.........................................................................................................................75
Peru...............................................................................................................................77
Philippines....................................................................................................................79
Poland...........................................................................................................................81
Russia............................................................................................................................83
Saudi Arabia.................................................................................................................85
Singapore.....................................................................................................................87
South Africa..................................................................................................................89
South Korea..................................................................................................................91
Spain.............................................................................................................................93
Sweden.........................................................................................................................95
Switzerland...................................................................................................................97
Taiwan...........................................................................................................................99
Thailand......................................................................................................................101
Turkey..........................................................................................................................103
Ukraine........................................................................................................................105
United Arab Emirates................................................................................................107
United Kingdom........................................................................................................109
United States..............................................................................................................111
Venezuela...................................................................................................................113
Vietnam.......................................................................................................................115

Annex: Category Scores, Methodology, Sources, and Indicators Explained....... 117

Endnotes...........................................................................................................................135

Tables and Figures

Table 1: Fifth Edition Index Economies by World Bank Region............................... 3
Table 2: Fifth Edition Index Economies by World Bank Income Group.................. 4
Table 3: New Indicators Added in 2017.....................................................................5
Table 4: Economic Benefits of Improving IP Protection: Findings from
21 Correlations.............................................................................................10

Figure 1: The Innovation and Creativity Life-Cycle..................................................... 8

Figure 2: Approximating TRIPS on the Index............................................................14
Figure 3: Approximating TRIPS and TPP on the Index.............................................16
Figure 4: 2017 Overall Scores..................................................................................... 19

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 U.S. Chamber International IP Index | Fifth Edition

3. Overview of the International IP Index Fifth Edition

Now in its fifth edition, the U.S. Chamber’s What’s new in the fifth edition?
International IP Index continues to provide an More economies included
important industry perspective on the IP standards
that influence both long- and short-term business The Index continues to grow and now covers
and investment decisions. The Index is a unique and 45 economies. Together, these economies represent
continuously evolving instrument. Not only does it both a geographical cross-section of the world and
assess the state of the international IP environment, close to 90% of global economic output calculated on
it also provides a clear roadmap for any economy a current basis per the World Bank.i
that wishes to be competitive in the 21st century
knowledge-based global economy. Large, small, The new economies included in the fifth edition of
developing, or developed—economies from across the Index are Egypt, Hungary, Kenya, Pakistan, the
the world can use the insights about their own national Philippines, Saudi Arabia, and Spain.
IP environments as well as that of their neighbors
and international competitors to improve their own As Table 1 shows, the Index includes economies
performance and better compete at the highest levels from all major regions of the world and is truly a
for global investment, talent, and growth. global measure.ii

Table 1: Fifth Edition Index Economies by World Bank Regioniii

Latin America and Africa and Europe and
Asia North America
the Caribbean Middle East Central Asia
Australia Argentina Algeria France Canada
Brunei Brazil Egypt Germany U.S.
China Chile Israel Hungary
India Colombia Kenya Italy
Indonesia Ecuador Nigeria Poland
Japan Mexico Saudi Arabia Russia
Malaysia Peru South Africa Spain
New Zealand Venezuela UAE Sweden
Pakistan Switzerland
Philippines Turkey
Singapore UK
South Korea Ukraine
Taiwan
Thailand
Vietnam
Source: World Bank (2016)

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THE ROOTS OF INNOVATION

In addition to geographic diversity, the Index also an overview of all 45 economies sampled in the fifth
contains economies from a broad spectrum of income edition of the Index according to income group as
groups as defined by the World Bank. Table 2 provides defined by the World Bank.

Table 2: Fifth Edition Index Economies by World Bank Income Groupiv

Lower-Middle-Income Upper-Middle-Income High-Income OECD

High-Income Economies
Economies Economies Members

Egypt Algeria Brunei Australia

India Argentina Saudi Arabia Canada
Indonesia Brazil Singapore Chile
Kenya China Taiwan France
Nigeria Colombia UAE Germany
Pakistan Ecuador Venezuela Hungary
Philippines Malaysia Israel
Ukraine Mexico Italy
Vietnam Peru Japan
Russia New Zealand
South Africa Poland
Thailand South Korea
Turkey Spain
Venezuela Sweden
Switzerland
UK
U.S.
Source: World Bank (2016)

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 U.S. Chamber International IP Index | Fifth Edition

Five new indicators These indicators include new areas of IP, such as
design rights, as well as growing areas of concern
A significant new feature of the fifth edition of the to rights-holders including patent opposition
Index is the addition of five new indicators bringing proceedings and barriers to licensing agreements.
the total number of indicators included in the Index to Below Table 3 provides an overview of the five new
35. Consequently, the maximum possible score on the indicators and the Index categories to which they have
Index has also increased from 30 to 35. been added.

Table 3: New Indicators Added in 2017

Index Category New Indicator

Category 1: Patents, Related Rights,

Patent opposition
and Limitations

Category 3: Trademarks, Related

Industrial designs term of protection
Rights, and Limitations

Legal measures available that provide necessary exclusive rights

to redress unauthorized use of industrial design rights

Category 4: Trade Secrets & Regulatory and administrative barriers to the commercialization
Market Access of IP assets

Transparency and public reporting by customs authorities of

Category 5: Enforcement
trade-related IP infringement

The new indicators are defined and described in full The second and third new indicators are from a new
in the Methodology section included in the Annex at area of IP covered in the Index: industrial design
the back of this report. Below is a summary overview of rights. These indicators measure the maximum term
each new indicator and what they seek to measure. of protection being offered (including renewable
periods) for design rights and the extent to which
The first indicator added relates to patent opposition economies have in place and apply laws and
proceedings. Specifically, the indicator measures the procedures that provide necessary exclusive rights
availability of mechanisms for opposing patents in (including making, marketing, trading, and use of an
a manner that does not delay the granting of a industrial design), respectively.
patent (in contrast to a right of opposition before the
patent is granted) and ensures fair and transparent
opposition proceedings.

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THE ROOTS OF INNOVATION

The fourth new indicator relates to the actual

commercialization and use of IP assets. This
indicator seeks to measure the extent to which
regulatory or administrative mechanisms allow IP
owners the “freedom to operate” as part of their
commercialization and exploitation activities. This
freedom includes the avoidance of barriers or undue
burdens on interacting parties such as “blanket”
requirements for forced disclosure of technologies
without the consent of the IP owner, governmental
preapproval for any licensing agreement between
parties, predetermined licensing terms, restrictions on
commercializing IP by publicly funded research bodies,
and discriminatory conditions affecting the licensing of
technologies by foreign IP owners.

The final added indicator relates to border measures.

Specifically, this indicator seeks to measure the
extent to which customs authorities in a given
economy publish statistics and data on trade-related
IP infringement. This indicator measures both the
extent to which data are published on a regular and
systematic basis and the level of detail of these data.

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 U.S. Chamber International IP Index | Fifth Edition

4. An Innovation Life-Cycle Perspective of the Benefits of IP

Rights: From Laboratory to Market
The debate on intellectual property (IP) rights and occurring together). This edition’s Annex expands on
their impact on innovation, access to technologies the data and discussion included in the fifth edition
and economic growth raged on in 2016, with report as well as previous editions of the Index to
developments underscoring ongoing skepticism at provide a fuller picture of the relationship between IP
both the multilateral and national levels regarding rights and a wide range of socioeconomic benefits.
the utility of IP rights and a persistent view that IP
protection amounts to a tax on access to innovation. Taken together, the 21 correlations included in
A United Nations High-Level Panel on Access to this Annex present a clear picture: IP protection
Medicines report that encouraged broad use of goes hand in hand with the aspirations topping
TRIPS “flexibilities” to work around IP rights was but government agendas around the world. As Table 1
one high-profile example. The fifth edition of the suggests, a robust national IP environment correlates
U.S. Chamber International IP Index (“the Index”) strongly (having a strength of 0.6 or above) with a
highlights a number of other developments in different wide range of macroeconomic indicators that fall
economies, including a narrowing of patentability under the umbrella of innovation and creativity –
criteria, use of compulsory licensing, and erosion of the very same indicators that are found in national
IP enforcement, that promote the limiting of IP rights strategies for economic development of many
as a means to encourage local economic activity and economies today. This message has only become
increase access to technologies. stronger over the past 3 editions of the Index: adding
several new variables each year and expanding the
Yet the empirical evidence on the impact of IP rights sample size by 50% (from 30 to 45 economies), the
on economic activity continues to suggest that such strength of the relationship between IP rights and
views are misguided. The most up-to-date data on crucial economic activities has grown.
the benefits of IP protection reveals that IP is, in fact,
a critical instrument for countries seeking to enhance This edition of the Annex amplifies these findings
access to innovation, grow domestic innovative about the benefits of IP protection by examining the
output, and enjoy the dynamic growth benefits of an correlations (both those from the previous editions
innovative economy. Conversely, weak IP protection plus new correlations) from the perspective of an
stymies long-term strategic aspirations for innovation “innovation and creativity life-cycle”. This is because
and development. The past three editions of the maximizing the benefits of IP rights is not just about
Index have included a dedicated section that explores understanding the outcomes they help to generate
the relationship between national IP environments but also how they do so. Effective innovation
and the development of innovative and competitive strategies comprise policies that account for not
economies by comparing the Index scores with a wide only the end objectives but also the path that leads
range of economic variables using correlations analysis to these outcomes, the way in which innovation and
(statistical measures of the likelihood of two elements creativity occur, and the necessary enabling factors.

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THE ROOTS OF INNOVATION

For example, IP rights display a strong relationship development that support these sectors. In fact, the
with the growth of knowledge-intensive jobs (0.72) correlations shows that IP plays a role in facilitating
and the development of competitive local high-tech many of the necessary “inputs” to the knowledge-
sectors (0.80). But the correlations also reveal that based economy. On this basis the correlations are
IP drives the research, partnerships, and technology divided into four themes or phases of the innovation
and creativity life-cycle (as illustrated in Figure 1):

Figure 1: The Innovation and Creativity Life-Cycle

Resources
dedicated to
innovation

R&D and creative

A dynamic economy
activities

Access to
technologies and
creative content

Source: Pugatch Consilium

1). Resources dedicated to innovation: The market), human capital (like researchers and
correlations in this theme show that IP protection technicians), and technological infrastructure.
is a key enabling factor of R&D, working in Economies that provide a robust IP environment
tandem with other factors such as financing are also more likely to embrace policies that
(including spending directed to R&D and create a complete innovation “ecosystem” by
a vibrant venture capital and private equity investing in other key building blocks.

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 U.S. Chamber International IP Index | Fifth Edition

2). R&D and creative activities: The correlations create high-value jobs, and raise income and
in this theme indicate that IP rights are productivity. Here, as in the other themes,
linked to actual innovation—to discovery, IP is strongly related to measures of foreign
development, and production of new direct investment (FDI), business and industrial
technologies and creative works. Economies growth, jobs, and gross domestic product
that exhibit a steady buzz of innovation and (GDP), ultimately providing the basis for
creativity are, with few exceptions, those that re-investment of resources as the virtuous
have put in place strong IP environments— cycle begins anew.
both generally and for specific high-tech
sectors. The opposite is also true: on the . The correlations within each theme examine
whole, those economies with relatively weaker the impact of IP on the overall economy
IP environments do not tend to experience as well as for specific IP-related sectors,
the levels of R&D and release of new content including the biomedical, information and
that economies with more secure and stable IP communications technology (ICT), and
environments do. creative content sectors. This not only allows
for a clear picture of the wider socioeconomic
3). Access to technologies and creative benefits of a supportive IP environment
content: Economies with strong IP protection overall but also illustrates the advantages for
are also those that tend to successfully key high-tech sectors when specific rights
commercialize R&D and enable distribution important for a given sector are provided.
and sale of resulting products and services.
The correlations in this theme suggest that IP . Table 4 presents the main findings of the
protection displays a strong relationship with analysis in this Annex.
greater access to end products and services
that make novel technologies and content
available to consumers. The correlations
support the economic notion that IP is an
important platform driving and enabling
innovative entities to actually develop new
technologies into valuable and useful products
and make them broadly available to an
economy’s customers.

4). A dynamic economy: The final theme

captures the endgame – the socioeconomic
impact of innovation and creativity in terms
of ability to address critical global challenges,
ensure a reliable stream of investment,

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THE ROOTS OF INNOVATION

Table 4: Economic Benefits of Improving IP Protection: Findings from 21 Correlations

Economies with Robust IP Protection (scoring above the

Macroeconomic Indicator Correlation median level of the Index) on Average Tend to Experience
Correlated to IP Rights Strength the Following Benefits Compared to Economies Scoring
below the Median Level

Resources dedicated to innovation

Human capital 0.82 Over 6 times more R&D-focused personnel

R&D expenditure 0.70 Over 40% more likely to secure private investment in R&D

Access to venture capital (VC) 0.77 45% more likely to attract VC and private equity (PE) funds

R&D and creative activities

80% more knowledge-based, technological, and

Innovation output 0.88
creative outputs
140 triadic patent applications per million population
Inventive activity 0.75
(versus an average rate of only 3)
Much more likely to provide environments that are
Biotechnological innovation 0.77
conducive to biotech innovation
Development of biologic Host nearly 15 times more clinical trials on innovative
0.70
therapies biologic drugs
Attract more than 20 times the number of early-phase
Cutting-edge clinical research 0.73
clinical trials
75% more likely to have larger and more dynamic
Creative outputs 0.86
content and media sectors

Online creativity 0.85 More than 4 times the amount of online creativity

Access to technologies and creative content

30% more likely to benefit from access to the most

Access to advanced technologies 0.83
recent technologies
Greater access to new, licensed music content with a
Access to licensed music outlets 0.78
wider array of choice and over secure platforms

Likely to see at least 3.5 times more theater screenings

Greater consumption of new
0.73 of feature films, and generate more tax revenue from
audiovisual content
ticket sales

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 U.S. Chamber International IP Index | Fifth Edition

Table 4: Economic Benefits of Improving IP Protection: Findings from 21 Correlations (continued)

Wider and more convenient More than double the level of advanced and
0.61
access to video content easy-access home entertainment

The dynamic economy

Production of up to 82% more knowledge and

Growth of high-tech sectors 0.80
technology outputs

Overall business environment 0.80 68% more likely to have a supportive business climate

Foreign direct
0.78 Nearly 50% more attractive to foreign investors
investment-attractiveness
Biomedical foreign direct
0.67 15 times more investment in the life sciences
investment
Nearly double the workforce concentrated in
Increase in high-value jobs 0.72
knowledge-intensive sectors

40% greater capacity to generate positive value from

Growth of knowledge-based ICT, such as through job creation, access to public and
0.82
economies private services, and creation and use of ICT-based
technologies

Added value of properly licensed As much as 10 times greater positive impact on GDP of
0.85
software strong ICT-related IP

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THE ROOTS OF INNOVATION

5.. Assessing International Benchmarks and Standards Relative

to the Index
5.1 Benchmarking the TRIPS and TPP domain.v TRIPS aimed to harmonize the global
treaties against the Index protection of IP rights by establishing a minimum
standard for IP frameworks along with provisions
How do existing international IP standards compare to on dispute settlements and enforcement to make
the industry standard represented by the Index? it effective. Representing an unprecedented
commitment to minimum global IP standards, TRIPS
History shows that trade agreements have has stood as a clear benchmark for over 20 years.
progressively raised the bar for IP standards around
the world. For their significance to political and For these reasons, we believe the provisions included
policy debates, the two most influential agreements in TRIPS represent a floor—rather than a ceiling—for
of this kind are the 20-plus-year-old World Trade IP protection. The TRIPS Agreement largely predates
Organization (WTO) TRIPS Agreement, and the Trans- globalization and the technological revolution that
Pacific Partnership or TPP Agreement. has allowed complex flows of information, capital,
and talents to move virtually seamlessly around
The purpose of this section is to approximate the the globe. Twenty years on, it is thus instructive
strength of these treaties relative to the Index. The to compare TRIPS to the Index, as a modern-day
discussion is not intended to provide a definitive standard, on two levels:
score of either the TRIPS or TPP treaty—for reasons
discussed below, methodological challenges make • .First, with respect to the extent to which TRIPS
such conclusions difficult. Despite these difficulties, is “missing” a number of IP rights—given its
it is useful to assess how the provisions of these age, it is understandable that the treaty does
two treaties compare to the 35 indicators included not contain a number of the latest iterations
in the Index and to calculate an approximate Index of IP rights that a modern, knowledge-based
score. This exercise contributes to an enhanced economy relies on; and
understanding of what aspects of a modern 21st
century IP standard these treaties cover. •. Second, with regard to the fact that many
economies have not yet implemented key
aspects and IP rights of the treaty.
5.2 TRIPS from the perspective of
the Index Today, the TRIPS Agreement is ratified by 164
economies and represents the only enforceable
When signed in 1994 as an annex to the Final Act global IP standard, but how does it measure up
establishing the WTO, the TRIPS Agreement was when considering the state of play of technology and
considered by many to be the most comprehensive the global economy? How does it compare to the
and ambitious agreement ever reached in the IP standards identified in the Index?

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 U.S. Chamber International IP Index | Fifth Edition

To generate an Index approximation for TRIPS, copyright infringement online, TRIPS Articles 9 and 14
imagine that the TRIPS Agreement is the IP law in provide for basic exclusive rights for copyright holders
force in a given economy and that the economy has such as right of reproduction and public performance;
implemented the principles and rules in TRIPS in they do not specifically address the digital sphere and
line with current standards of interpretation in place so cannot be equated to a full point on the Index.
in the most established IP jurisdictions worldwide.
In that light, all of the provisions in TRIPS that may Translating TRIPS provisions into scores for the
be considered equivalent to the 35 indicators in the remaining relevant Index indicators, the TRIPS
Index may be isolated and translated into scores. Agreement ultimately receives an overall Index score
However, as mentioned, certain indicators from the of 16.63.vi This score represents less than 50% of the
Index are inherently not applicable or possible to total Index benchmark and, even when removing
examine. These include numerical indicators such as nonapplicable indicators, just about 50% of the
rates of physical counterfeiting and piracy as well as Index standard. It is striking that despite establishing
membership in treaties that were introduced after the an important level of IP protection globally, TRIPS
TRIPS Agreement entered into force. standards still represent a rather low bar of national
IP protection worldwide, especially when considering
Leaving these indicators aside, it is possible to the technological developments and economic
compare the remaining 29 Index indicators to TRIPS realities faced today, 20 years since its introduction.
provisions. In doing so, it is clear that some provisions To compete today, economies need to look beyond
in TRIPS are fully equivalent to the Index indicators, TRIPS to higher IP standards as roadmaps for
whereas others only partially address the Index criteria. enhancing innovation and economic growth.
For example, the term of industrial design protection
(indicator 20) outlined in Article 26 of TRIPS is “at
least 10 years”; in light of the Index’s benchmark of
25 years (based on the maximum term of protection
afforded in the EU), the score for TRIPS for this
indicator would be 0.4 out of a possible score of 1.
Looking at a more substantive indicator—for example,
indicator 2 on patentability criteria—sets forth three
substantive criteria: novelty, inventiveness, and
industrial applicability. Assuming prevailing standards
of interpretation of this article in the biggest and
most established patent offices in the world—such
as the European Patent Office (EPO), Japan Patent
Office (JPO), and U.S. Patent and Trademark Office
(USPTO)—TRIPS receives a full point for indicator 2. In
contrast, in relation to indicator 10 on legal measures
providing necessary exclusive rights to prevent

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THE ROOTS OF INNOVATION

Figure 2: Approximating TRIPS on the Index

35.0
35

30

25

20
16.63
15

10

0
TRIPS Index

5.3 TPP from the perspective of the Index Breaking down the TPP

In similar fashion, it is instructive to assess the Index Similar to the exercise carried out in the preceding
against a more recent standard, the TPP agreement, subsection on TRIPS, the first step in comparing
which was signed just under 22 years after the the Index to the TPP is to compare the individual
TRIPS agreement. Innovation-driven and intimately components of the TPP (the articles) with the 35
interlinked, the economic relationships between indicators that together constitute the Index. Through
nation-states today are fundamentally different than this comparison, it is possible to isolate specific articles
they were in the mid-1990s. Dramatic changes in as points of comparison to Index indicators.
technology and the structure of the global economy
mean that future trade agreements should be As with the TRIPS treaty, a number of indicators from
more comprehensive and detailed than preceding the Index are simply not applicable and are therefore
multilateral trade agreements. A great deal of not used within this comparison. These indicators
opportunity continues to exist in the IP space and with include, for example, rates of physical counterfeiting
regards to the IP standards established in the TPP. and estimated rates of software piracy, which are not
part of the remit of the TPP and thus cannot form a
point of comparison.

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 U.S. Chamber International IP Index | Fifth Edition

guidelines, or administrative or executive decrees

Compared with the TRIPS analysis, the TPP has a that provide that its central government agencies use
very high number of corresponding and equivalent only non-infringing computer software protected by
standards as captured in the Index’s 35 indicators. For copyright and related rights, and, if applicable, only
example, indicator 30 in the Index relates to border use that computer software in a manner authorised
measures. Specifically, this indicator is “measured by the relevant licence.” This is, for all intents and
by the extent to which goods in transit suspected of purposes, equivalent to the wording of indicator 14:
infringement may be detained or suspended. This “implementation of policies and guidelines requiring
indicator also measures the extent to which border that any proprietary software used on government ICT
guards have the ex officio authority to seize suspected systems should be licensed software.”
counterfeit and pirated goods without complaint from
the rights holder.” In essence, this indicator measures In other areas, the TPP is not equivalent to the Index.
the existence of two things: i) the existence of ex For example, on the issue of regulatory data protection
officio authority for customs officials with regard to (indicator 7), the Index uses the benchmark term
suspected IP-infringing goods; and ii) the extent to of protection of 8+2 (10) years of data and market
which goods in transit suspected of infringement may exclusivity protection used in the EU for small- and large-
be detained or suspended. The equivalent provision in molecule products. Conversely, Article 18.5 of the TPP
the TPP Agreement is Article 18.76 of the IP chapter.vii provides two different terms of protection depending
on the size of the molecule. A 5-year term of protection
Paragraph 5 of this article states the following: is provided for small-molecule products and a term of 8
years is provided for large-molecule (biologic) products.
Each Party shall provide that its competent
authorities may initiate border measures ex officio Summing up
with respect to goods under customs control
that are: In translating the remaining TPP provisions into scores
(a) imported; for the relevant Index indicators, the TPP Agreement
(b) destined for export; or receives an overall Index score of 25.39.ix This score
(c) in transit. represents just under three-quarters (73%) of the total
Index benchmark, illustrating how the TPP builds upon
In addition to this paragraph, four relevant footnotes the provisions of the TRIPS agreement.
(119, 120, 121, and 122) offer further explanation of
what the paragraph means.viii Yet strong as the TPP is, a number of standards are
missing or lacking. As mentioned above, the term
Similarly, the text of Article 18.80 relating to the of protection for regulatory data protection (RDP) is
government’s use of licensed software, is largely below the benchmark term used by the Index. For
equivalent to indicator 14 of the Index. The TPP article large-molecule products, the TPP is also below that
states: “Each Party shall adopt or maintain appropriate of economies such as the U.S., which has a term of
laws, regulations, policies, orders, government-issued protection of 12 years for biologics. Gaps also exist

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THE ROOTS OF INNOVATION

with regard to the placement of localization and Figure 3 compares the TRIPS, TPP, and Index.
licensing barriers. These barriers are not addressed at
all in the IP chapter of the TPP, and localization as such Looking at the three standards side by side, it is clear
is only tangentially addressed in the TPP’s Trade and that international standards for the protection of IP
Services section (chapter 10) and Technical Barriers to remain a work in progress. TRIPS provided an essential
Trade (chapter 8). foundation for global IP rules. The TPP built upon
those standards, but opportunities remain to further

Figure 3: Approximating TRIPS and TPP on the Index

35.0
35

30
25.39
25

20
16.63
15

10

0
TRIPS TPP Index

improve the IP provisions in future trade agreements. of the Index, barring Canada and New Zealand, all
Judging by the top performers in this year’s Index— exceed the total TPP score—the most innovative and
the U.S., the vast majority of EU member states, and competitive economies in the world have IP standards
developed economies included in the fifth edition that substantially exceed even that of the TPP.

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 U.S. Chamber International IP Index | Fifth Edition

6. Global IP Policy in 2017 – Heading in Different Directions

Trade Multilateralism

From a purely IP policy perspective, the biggest Questions like these have been posed for all major
developments and pendulum swing from near forms of IP rights, but perhaps they have been
certainty to uncertainty occurred in the area of trade, most pronounced recently in the area of access to
where two potentially groundbreaking treaties were medicines. Specifically, in September 2016, the UN
finally signed after years of negotiations: the Trans- High-Level Panel on Access to Medicines released
Pacific Partnership and the EU-Canada Comprehensive its final report and recommendations, based on a
Economic and Trade Agreement. premise that IP rights are inimical to human rights.
Unfortunately, the panel’s mandate and thus the
The CETA agreement provides the promise of finally resulting report had a narrow, misguided focus on
bringing much of Canada’s national IP environment perceived inconsistencies between IP rights and
into the modern era and aligned with international best access to medicines as opposed to the wider political,
practices and other developed OECD economies. Yet health infrastructure, and socioeconomic factors that
here too uncertainty exists over the future of the treaty. are the true access barriers to medicines. The panel
Only last-minute renegotiations and concessions to also failed to fundamentally recognize how long-term
the small Belgian province of Wallonia allowed for the medical and biopharmaceutical innovation depends
signing of the agreement in October 2016. on the existence of IP rights. In the words of a World
Intellectual Property Organization representative
Anxiety over globalization and free trade deals are who intervened at a hearing for the High-Level Panel,
not new; in fact, it has affected most major modern “without productive innovation, there is nothing to
trade negotiations. Similarly, debates dating back have access to.”x
to the 1800s over the role of IP rights and social
tradeoff between the exclusive rights of an inventor Indeed, one of the major trends that stands out
or creator and the good of society at large were from this year’s edition of the Index is how despite
reignited in 2016: efforts like the TPP and CETA, many economies are
embracing policies that challenge or curtail IP rights.
-. Is the granting of IP rights a social good? From the intensification of localization policies; to
curtailing patentability; to actively encouraging the
-. In a 21st-century society where information flows use of compulsory licenses, parallel importation, and
freely do these ancient notions of property rights the overriding of registered IP rights as a basis for
actually stimulate innovation and creativity? budgetary policy and cost containment; to restricting
renewable periods for registered trademarks—many
-. Is there not a better way? economies are embarking on policy reforms that
severely restrict the ability of rights holders to protect

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THE ROOTS OF INNOVATION

and profit from their work and creations. Not all of the 1% of the available score. More broadly it is clear that
45 economies included in the Index are embracing many EU economies and Japan are closer to the U.S.
these policies. And, in many cases, economies may than ever before.
in one policy area embrace restrictions while other
arms of government may engage fully in multilateral One reason for this shrinking gap is the continued
efforts to better exploit IP as an asset. Nevertheless, refinement of the Index as an assessment tool. The
it is notable that the share of economies launching UK, Japan, and many EU economies perform better
negative policies is growing. than the U.S. does on the 5 new indicators introduced
in this year’s edition of the Index. For example,
Yet in so doing, these economies are ignoring what with regard to patent opposition proceedings, the
is perhaps the most important lesson from not only American framework is simply not as effective as that
the research presented in this edition of the Index used by the EPO and other European economies. The
and the accompanying Statistical Annex, but the two mechanisms introduced by the 2011 American
cumulative knowledge from all five editions of the Invents Act have by and large not met rights holders’
Index and related work: the world’s most competitive expectations. Despite the intention of the new
and most innovative economies are also those in which opposition mechanisms to curb bad faith actors,
the protection of IP is not viewed as a necessary evil the ease of challenging patents during the post-
but, instead, as a fundamental building block for a grant period, particularly via the inter partes review
prosperous, modern, knowledge-driven economy. mechanism, has led to a high rate of trials and of
rejections (between 40% and 65% depending on type
of technology), with challenges considered by some
6.1 Overall results experts to be disproportionately funded by bad faith
actors and with steeply increasing defense costs for
What is perhaps most striking about the overall results patent holders. More broadly, although the USPTO
of the fifth edition of the Index is the extensive— continues to issue guidance on biotechnology and
and often substantial—movement of economies up software patenting, the patenting environment in the
and down the overall standings and within the six U.S. has continued to be plagued by uncertainty. In
categories of the Index. Figure 15 shows the overall fact, digging a bit deeper into the Index results and
results and economy scores. looking at the results for Category 1: Patents, Related
Rights, and Limitations, the U.S. falls from 1st to 10th
behind most European economies included in the
The view from the top – the U.S. is not alone Index as well as Singapore and Japan.

What immediately stands out is how the top of the On the other hand, a number of developed, high-
Index is tightening. In previous editions, there was still income economies that had been underperforming
a clear, albeit constantly shrinking, gap between the in previous editions have substantially increased their
U.S. and other economies. This year, the U.S. is ahead scores this year. Japan, for instance, has seen its score
of the UK by less than a quarter of a point, or less than increase by over 10%—from under 80% of the maximum

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 U.S. Chamber International IP Index | Fifth Edition

Figure 4: 2017 Overall Scores

U.S. 32.62
UK 32.39
Germany 31.92
Japan 31.29
Sweden 30.99
France 30.87
Switzerland 29.86
Singapore 28.62
South Korea 28.31
Italy 27.73
Spain 27.48
Australia 27.07
Hungary 25.39
New Zealand 24.05
Poland 23.00
Israel 22.27
Canada 21.44
Taiwan 20.59
Malaysia 17.19
Mexico 16.87
Saudi Arabia 15.98
Turkey 15.80
Russia 15.53
UAE 15.24
Colombia 15.22
Chile 15.14
China 14.83
Peru 14.34
Brunei 14.18
Ukraine 14.06
Kenya 13.95
Brazil 13.23
South Africa 12.70
Philippines 11.78
Nigeria 10.97
Ecuador 10.59
Vietnam 10.34
Argentina 10.05
Indonesia 9.64
Thailand 9.53
Egypt 9.38
Algeria 9.34
India 8.75
Pakistan 8.37
Venezuela 6.88

0.00 5.00 10.00 15.00 20.00 25.00 30.00 35.00

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THE ROOTS OF INNOVATION

available score in the fourth edition to close to 90% this For example, Saudi Arabia (a new addition this year)
year. In large measure, this is due to the swift ratification stands out for its relatively strong performance overall
of the TPP treaty including accession to all required and in particular for achieving the highest score of
international IP treaties, such as the Patent Law Treaty all emerging markets in Category 1: Patents, Related
and the Singapore Treaty on the Law of Trademarks. Rights, and Limitations, only 0.5 points behind
Japan’s national IP environment is also very strong New Zealand.
with regards to all of the new indicators included in
the Index. Similarly, China’s overall score has increased
marginally from the fourth to the fifth edition—as
Among other high-income OECD economies, it has in each consecutive edition of the Index.
Australia’s score dropped from the last edition of the This present improvement in score mainly results
Index. In large measure, this is due to weaknesses on from enhanced damage calculations that support
the newly included indicators, in particular relating to adequate compensation for patent holders provided
patent opposition proceedings. Australia (together with for in a 2016 Judicial Interpretation on patent
New Zealand and Israel) is one of the few developed infringement. Additionally, China scores well on the
OECD economies that provides a pre-grant form of level of transparency and public reporting by customs
patent opposition. The system is considered to extend authorities on trade-related IP infringement, a new
the patent review process significantly, delaying the indicator this year. However, crucial gaps in the
granting of patents and reducing the available term of areas of industrial design protection and barriers to
protection afforded to patent holders. For example, commercialization of IP assets hold China back from a
a 2012 academic study published in the University of further rise in score on the other new indicators.
New South Wales Law Journal found that Australian
opposition filings typically delayed the granting of a India and Brazil have both seen a slight improvement
patent by close to 2 years (the mean delay found was in their scores overall. However, this increase is largely
2.4 years versus the median of 1.8 years). because of a relatively strong performance on the
five new indicators included in the Index and not
As in years past, Canada and New Zealand continue from any actual improvements to their national IP
to stand out as examples of developed high-income environments. On the contrary, in India, for instance,
economies closer to the score of middle-income a number of developments have had a pronounced
economies than that of the U.S. and EU. Indeed, negative impact. Of note is the High Court of Delhi
Canada is just over 4 points ahead of Mexico and judgment in the long-running case between some of
Malaysia (the best-performing middle-income the world’s leading academic publishers (including
economies) but more than 10 points behind Germany, both Oxford and Cambridge University presses as well
the UK, and the U.S. as Taylor & Francis) and the University of Delhi and a
local photocopy shop. In a significant blow to rights
Developing or regressing? Troubling trends in holders, not only did the court find nothing wrong
emerging economies with the University of Delhi providing a photocopied
master-copy of course texts for students to photocopy
As for emerging markets, this year’s results are even themselves in the university library, but it also did not
more mixed than usual. object to the obvious commercial gain derived from the

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 U.S. Chamber International IP Index | Fifth Edition

copy shop for providing this service. Confusingly, while of these localization requirements. The IPAP also,
in December 2016 the case was set to be heard again both more broadly and in the sectoral focus area
in 2017 (following the intervention by a division bench discussions, places a heavy emphasis on the transfer
of the Delhi High Court), no accompanying court order of technologies from international rights holders to
was given to suspend the ongoing and widespread local companies.
infringement of the rights holders’ copyright.
In Latin America, Colombia stands out for the
Russia and South Africa have seen substantial significant regression in its national IP environment.
deterioration in their national IP environments. For Its overall score has fallen substantially from 47% in
both economies, this decline is largely because of the fourth edition to 43% in the fifth edition. Although
the intensification of localization policies. In the Colombia’s score rose in relation to the patentability of
case of Russia, the decline occurs despite a small computer-implemented inventions (with evidence of
increase in its overall score resulting from a relatively higher volumes and speedier patenting of computer-
strong performance on the five new Index indicators. related patents), the drop in overall performance
For example, in late 2015 the Russian government results from challenges around compulsory licensing
adopted Resolution No. 1289 “On Restrictions and and relatively low scores on the new Index indicators,
Conditions of Access of Foreign Essential Medicines particularly in relation to patent opposition and
to State and Municipal Tenders,” which introduces licensing barriers. In 2016, the Ministry of Health
a direct import ban within the procurement system. and the Colombian government actively considered
Access to state purchases of imported medicines (on the basis of a recommendation of an internal
will not be allowed when (at the time supplies are committee) issuing a compulsory license on the
requested) at least two generics produced within oncology drug Glivec on the grounds of high prices.
the Eurasian Economic Union (EEU) are available for At the time of research, the Colombian government
a given product. Foreign manufacturers will only be had issued a “Declaration of Public Interest” via
able to participate in a public tender in cases where Resolution 2475 and committed to unilaterally
fewer than two bids from EEU manufacturers have reducing the price of Glivec by about 45%. Although
been submitted. In addition, Decree 1125/2015 made the government has not moved forward with issuing
the National Immunobiological Holding Company a compulsory license, the above steps can be viewed
(owned by state-owned corporation Rostech) the sole as a manner of abusing the compulsory license
provider of immunobiological products for state needs regime for price considerations, even though no
for the period 2015–17. Similarly, in the 2016 Industrial patient access concerns were cited. On the contrary,
Policy Action Plan 2016-17-2018-19 (IPAP), South Africa competing forms of the medicine were available
outlined new policies that strengthen localization on the market and the price for Glivec was set and
requirements. The IPAP confirms the government’s reduced multiple times by the Colombian government
objective (first outlined in the 2014 five-year plan under the existing price control regime.
Medium Term Strategic Framework) of achieving
a level of 75% local procurement. Specifically, it A few countries toward the bottom of the Index also
strengthens cross-governmental enforcement activities stand out. In 2016, both Ecuador and Indonesia, for
and ensures greater compliance and application example, continued to embark on a path of actively

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THE ROOTS OF INNOVATION

restricting IP rights. In October 2016, Ecuador’s expanded. Last, Article 20 of the law mandates that all
National Assembly passed the Código Orgánico de patent rights holders “make” the patented product or
Economía Social del Conocimiento, la Creatividad y la process within Indonesia. Subsection (2) of this article
Innovación (Código Ingenios). The legislation touches states that this production should support Indonesia’s
on all facets of IP rights, R&D, and innovation. While industrial and development policies, specifically the
the law aims to encourage innovation, R&D, and the “transfer of technology, investment absorption and/
development of new technologies, the legislation or employment.” No further details are provided as
includes strong elements of local preferences and to the meaning or legal definition of “make” in this
discrimination against foreign companies in, for context. As discussed in previous editions of the
example, software procurement. More broadly, Index, Indonesia has had in place a number of
the law imposes new limits on patentability and localization requirements that target certain industrial
expands non-patentable subject matter and—in a sectors (most notably the biopharmaceutical sector),
virtually unprecedented move—limits the number but this new requirement seems to broaden this
of renewable periods for trademark registrations. mandatory localization to any and all patented
Similarly, while the aim of Indonesia’s new patent law is technologies in Indonesia.
to strengthen Indonesia’s innovation infrastructure and
encourage more high-tech economic development Rays of light…
through the creation and use of new technologies,
overall the law does not improve what was already Despite the negative trend toward restricting IP
a challenging patenting environment. Article 4 rights, the results of the Index also show how in
inserts a new heightened efficacy requirement that many economies—sometimes paradoxically in some
targets biopharmaceutical products and outlaws of those economies with the most challenging and
second use claims. The new efficacy standard is not restrictive policies in place—IP is increasingly viewed
comprehensively defined with the sole example as an asset worth protecting.
cited being for antibiotics. In a further effort to target
biopharmaceutical innovation, Article 167 of the law Creating an effective and active IP enforcement
allows the parallel importation of follow-on products presence
under patent protection in Indonesia but approved
for consumption in other markets. The law explains Several economies in the Index took important steps
that this importation is to target the cost of medicines in 2016 to strengthen their IP enforcement bodies and
and in particular where prices in Indonesia are judged enhance anticounterfeiting and antipiracy activities.
to be higher than the “international market.” No Different economies bolstered legal tools for deterring
details are provided as to what constitutes a “higher infringement, such as increasing damages available
price” or the “international market.” This law adds and heightening criminal penalties for key areas
significant uncertainty and raises serious questions such as counterfeit medicines. For example, patent
as to the extent basic patent protection is afforded amendments issued by China’s patent office (under
to biopharmaceutical products in Indonesia. Existing review in 2016) would positively increase statutory
compulsory licensing mechanisms—including so- damages significantly from RMB10,000–RMB1 million
called government use licenses—have also been to RMB100,000–RMB5 million (about USD750,000).

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 U.S. Chamber International IP Index | Fifth Edition

In relation to damages, a 2016 Judicial Interpretation suspected infringers, conducting inspections and
on patent infringement shifts the burden of proof raids, and collecting evidence. In addition, since
to infringers and allows the release of evidence 2008, the Philippines also has had in place an Inter-
from infringers in order to promote a more accurate Agency Committee on IPR Enforcement, which
calculation of damages. Similar measures on burden inter alia dedicates efforts to education campaigns,
of proof and damage assessment entered into capacity building, data sharing, and international
force in 2016 in South Korea. In Pakistan, despite harmonization. Moreover, Civil Procedure Act
criminal penalties being considered inadequate and amendments in South Korea that entered into force
nondeterrent overall, certain provinces have raised in 2016 have centralized jurisdiction of patents,
penalties for infringement; in 2015, Punjab province trademarks, and design rights in five specialized
increased penalties for the production and sale of district courts and appeals to the Patent Court.
counterfeit medicines to a minimum of 5 years (with a The move is expected to make injunctive relief and
maximum of 10 years). damages more clearly available and, as the Patent
Court will rule on appeals to both infringement and
Other economies took steps to bolster capacity invalidity, preclude fragmentation when both types of
and resources for enforcement bodies. Pakistan’s proceedings run concurrently.
Intellectual Property Organisation recently introduced
specialized IP courts, training for judges, and efforts to Building 21st century IP frameworks
reduce red tape. It remains to be seen how effective
these new courts will be in addressing backlogs, A number of economies in the Index have also
but appointed judges reportedly have strong IP introduced IP reforms aimed at updating existing
backgrounds. In the UAE, Ministerial Resolution frameworks and addressing key needs of cutting-
137/2016 created a specialized judicial department to edge technologies and sectors. For instance, in 2016,
deal with federal disputes, such as cancellation acts; Taiwan undertook a review of its main IP laws, with
the first dedicated IP rights (IPR) Court Circuit was set proposed patent amendments to the Patent Act
up in 2016 at the Abu Dhabi Court of First Instance. to further strengthen the already pro-technology
The increased specialization is expected to speed up patenting framework by extending the grace period
the handling of IP litigation before both federal and for filing a patent to 12 months. In addition, although
emirate-level courts and could increase the availability other important gaps must still be addressed,
of effective civil remedies, such as injunctions, which copyright amendments take some steps to extend
are currently difficult to secure. the scope of protection, for instance by criminalizing
circumvention of technological protection measures
Still other economies introduced new enforcement (TPMs) and adding protection for encrypted program-
and education campaigns that target key infringement carrying satellite and cable signals. Among newcomer
strongholds and choke points in their economies. economies in the fifth edition, pockets of IP legislation
The IP office of the Philippines, IPOPHL, engaged provide for up-to-date, sector-specific measures.
in enforcement activities in partnership with rights For example, IP and e-commerce legislation in the
holders, including sending warning notices to Philippines criminalizes the circumvention of TPMs,
including the most modern types of control measures,
as confirmed by a Legal Opinion from the Department

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THE ROOTS OF INNOVATION

of Justice in 2015. Kenya’s copyright framework harmonization, and consolidating resources. Some of
in relation to digital rights management (DRM) the most widespread partnerships growing in 2016
legislation is also relatively sophisticated; it targets not were PPHs aimed at streamlining patent examination
only the act of circumvention but also the production and reducing duplicative review. In many economies,
of circumvention devices in its definition of infringing PPH commitments represent important steps toward
acts under the Copyright Act. Also, the use of licensed addressing large backlogs and improving examination
software is required among government agencies standards. Entry into PPHs factored heavily in 2016 in
in the Ministry of ICT’s Policy on Software Licensing many Latin American economies including Argentina,
Regime as well as in several agency-specific policies. Chile, Colombia, Mexico, and Peru. For example, to
These standards are reiterated in a draft policy on tackle persistently long IP office delays, Argentina’s
information security considered in 2016. National Institute of Industrial Property (INPI) is seeking
to significantly speed up application procedures,
Leveraging global partnerships and IP networks to committing to issue a decision within 60 days from
enhance international IP standards receiving a request for accelerated examination for
qualified claims. The Peruvian IP office, INDECOPI,
2016 saw important movement forward on entered into a PPH scheme with Spain in January
international and bilateral treaties involving substantial 2016 and with other Pacific Alliance countries (Mexico,
IP measures. As discussed in the preceding section, Colombia, and Chile) in June 2016. International
the TPP Agreement represents a significant, if IP cooperation is also increasingly visible in Asia.
incomplete, upgrade of existing international The Philippines is a member of the Association of
benchmarks and WTO standards, closer to that of the Southeast Asian Nations (ASEAN) Patent Examination
indicators included in the Index than TRIPS. Beyond Cooperation, with access to regional search and
the TPP, different economies concluded bilateral examination results, and has entered into PPHs with the
agreements that promote global IP best practices. USPTO and JPO. Vietnam’s National Office of IP, NOIP,
The text of the European Union-Vietnam FTA was has entered into a new PPH with Japan in an effort to
agreed to in 2016. The agreement will reportedly improve capacity, accelerate patent examination, and
be signed in 2017 and enter into force in 2018. IP address its growing patent backlog.
provisions in chapter 12 tackle a number of the
major holes in Vietnam’s current IP system, including, Economies that have leveraged international
among other elements, provision of a two-year partnerships are also demonstrating positive results.
patent term extension; automatic RDP protection for In the context of an accelerated examination program
pharmaceuticals; narrower exceptions to copyright and PPHs with the U.S., Japan, and, since 2015, South
and DRM protection; a clear definition of liability Korea, the average patent review time in Taiwan shrank
exemptions for key types of online intermediaries; to less than 24 months in 2016, from over 47 months
revocation of bad faith trademarks; enhanced civil in 2012. The average review time of applications filed
remedies; and ex officio action by customs in relation under its PPHs was just about 135 days in 2016 (as of
to IP infringement. the time of research).

Economies in the Index also entered into new bilateral

and regional IP partnerships for capacity building,

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 U.S. Chamber International IP Index | Fifth Edition

7. Economy Overviews

Introduction

This section provides an overview and analysis of each in the national IP environment for each individual
individual economy’s score on all 35 indicators. economy. Specific challenges, debates, and issues
relating to the most important recent developments
In addition to the total score and overall rank vis-à- under each category are discussed in more detail in a
vis the other economies included in the Index, each separate subsection titled “Spotlight on the National
economy overview includes two figures. The first figure IP Environment.”
displays each economy’s performance relative to the
top five performers in each category of the Index. The For economies included in previous editions of the
second figure displays each economy’s overall score Index, an additional discussion is included titled “Past
compared with the median overall score and regional Editions versus Current Scores,” in which the economy’s
average for that particular economy. Also included is score in the preceding editions is discussed and
a summary of key areas of strengths and weaknesses contrasted with its current score.

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ALGERIA Rank 42/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.39
13.73
15
9.34
Enforcement 10
Trademarks
5
0
Algeria Median Regional
Algeria Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic framework for IP protection in place 7 Difficult localization policies in place with import substitution bans
and local ownership requirements
3 Signatory to certain international IP treaties, such as the World
Intellectual Property Organization (WIPO) Internet Treaties and 7 Key life sciences IP rights missing and challenging patent
Patent Law Treaty enforcement environment
7 Major holes in legal framework for enforcing copyrights, including
clear guidance on Internet service providers (ISP) liability and
effective provisions for takedown of infringing websites
7 High rates of piracy—estimated 83% software piracy rate
7 Not a WTO member or TRIPS signatory

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 0 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.5
9. Term of protection 0.52 26. Software piracy rates 0.17
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0.5 29. Criminal standards 0.25
13. Digital rights management 0 30. Effective border measures 0.25
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0.5
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 9.34

[ 26 www.uschamber.com/ipindex ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Enforcement

Algeria’s overall score has decreased slightly from 28% (8.54 out 30. Effective border measures; and 31. Transparency and
of 30) in the fourth edition of the Index to 27% (9.34 out of 35) in public reporting by customs authorities of trade-related
the fifth edition. This drop in score mainly reflects a rather weak IP infringement: Article 241 of the 2002 Algerian Customs
performance in the 5 new indicators added in the fifth edition as Code provides customs agents and other officials the right
well as a continued deterioration in the localization environment. to act against suspected goods. However, the extent to
which this amounts to an ex officio authority is not clear.
Article 22 of the latest available revision to the Customs
Trade Secrets and Market Access
Code provides explicit protection for goods that violate IP
23. Barriers to market access; and 24. Regulatory and rights including trademarks, copyrights, and patent rights.
administrative barriers to the commercialization of IP However, neither this article nor corresponding amendments
assets: As noted in previous editions of the Index, Algeria to the code provide clear ex officio authority for customs
has for several years imposed protectionist-style rules for officials to act against suspected infringing goods. Similarly,
how foreign firms may participate in the market, with the no legal provisions are in place for infringing goods in
government actively pursuing an import substitution policy. transit not intended for the Algerian market. A customs
The stated objective of these rules is to reduce imports, recordal system is available in Algeria that provides rights
encourage domestic production, and maximize technology holders with the option to record their IP rights with customs
transfer. Although largely emanating from the oil and gas officials. Local legal analysis suggests that this is, relatively
industry, these policies run across various sectors and both speaking, the most effective route for rights holders to
directly and indirectly affect IP rights holders by imposing de obtain protection for their products, as the domestic
facto localization requirements in return for market access. production of counterfeit goods is limited. Still, estimates
For example, on the basis of a preexisting measure in the by Algerian customs authorities as well as by the U.S.
oil and gas sector, the 2009 Complementary Finance Law Commerce Department suggest that the vast majority of
limits foreign investment to a minority stake (49% or below) Algerian imports (particularly cosmetics, mobile devices, and
in any industrial sector. The effect of this requirement is to other consumer goods) are, in fact, counterfeit. With regard
impose a de facto localization requirement for foreign firms to levels of transparency and the public availability
wishing to operate in Algeria directly or through licensing of customs activities, the Algerian Customs Authority
agreements. Other rules target particular sectors. For (Direction Générale des Douanes) does not publish
example, the most stringent localization policies adopted in systematic or annualized data on seizures relating to IP
Algeria are outright import bans and quotas placed on, for rights–infringing goods.
example, biopharmaceutical products. Restrictions on drug
imports have been in place since October 2008 and have
been further expanded since then. These rules and policy
framework intensified in 2016 with new restrictions being
imposed through a system of import licenses and further
import bans. Additionally, in an effort to further enforce the
local partnering requirements through the 51-49% local
ownership mandate, the 2015 Ministerial Order (announced
in November 2015) restricts representative offices (bureaux
de liaison) from engaging in any form of commercial activity.
Unfortunately, the 2016 Investment Law and Finance
Law did not address these localization requirements, and
there has been no relaxation of import bans targeting the
biopharmaceutical or other sectors.

[ www.uschamber.com/ipindex 27 ]
ARGENTINA Rank: 38/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.39
15 13.79
10.05
Enforcement 10
Trademarks
5
0
Argentina Median Regional
Argentina Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic framework for IP protection in place 7 Key life sciences IP rights missing and challenging patent
enforcement environment
3 Signatory to the WIPO Internet Treaties
7 Major holes in legal framework for enforcing copyrights, including
3 Rise in police and custom raids and seizures, and ongoing
clear guidance on ISP liability and effective provisions for takedown
streamlining of administrative and enforcement bodies
of infringing websites
7 Persisting high rates of counterfeiting and piracy
7 Judicial procedure slow and court decisions nontransparent/
deterrent

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.25
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.26
9. Term of protection 0.63 26. Software piracy rates 0.31
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0 30. Effective border measures 0.5
14. Government use of licensed software 0 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 10.05

[ 28 www.uschamber.com/ipindex ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Enforcement

Argentina’s overall score has decreased slightly from 30% of the 29. Criminal standards including minimum imprisonment
total possible score (with a score of 8.91 out of 30) in the fourth and minimum fines; and 30. Effective border measures:
edition of the Index to 29% (10.05 out of 35) in the fifth edition. In 2016, IP enforcement agencies underwent restructuring
This drop in score partly reflects gaps in relation to the new that is expected to help target anticounterfeiting efforts
indicators added in the fifth edition, particularly in terms of the and streamline operations. A new City Police was created
pre-grant patent opposition mechanism in place in Argentina in Buenos Aires, with an infusion of new resources and
and a low level of transparency and public reporting of trade- consolidation of federal and local forces, aimed at
related IP infringement by customs authorities. concentrating efforts on a strategic, high-traffic, high-crime
area of the country (including in terms of IP infringement).
Similarly, an ongoing customs reform is expected to improve
Patents, Related Rights, and Limitations
the efficiency and effectiveness of customs’ operations,
2. Patentability requirements: New patentability including its anticounterfeiting efforts.
guidelines further curtail the protection of biotech and
ag-bio inventions by precluding patents involving biotech
processes and biological components, such as genetically
modified seeds. Indicating the tighter stance, in 2016 the
patent office, Instituto Nacional de La Propriedad Industrial
(INPI), rejected two ag-bio patents that had already been
approved in other Latin American countries and with claims
structured similarly to previously approved patents. The
new guidelines also add complex requirements for the
sufficient disclosure of gene sequences in applications,
requesting the full sequence of all genes claimed and
demonstration of their function. In addition, 2016 saw a
sharp increase in the refusal rate for pharmaceutical patents,
with less than 5% accepted by INPI. The increasingly narrow
approach to patentability compounds an already difficult
patenting environment and one where significant delays
erode the term of protection available to patent holders.
In a positive move, under a new PPH, INPI promises to
significantly speed up application procedures, committing
to issue a decision within 60 days of receiving a request for
accelerated examination for qualified claims.

Trademarks, Related Rights, and Limitations

18. Legal measures available that provide necessary
exclusive rights to redress the unauthorized uses of
trademarks: Entry into force of Law 27,222 further raises
the bar for securing and defending a trademark, resulting
in a drop of 0.25 in Argentina’s score for this indicator.
The new measure voids trademark applications in cases
where opposition proceedings are not settled (outside a
court) within 1 year. Counterfeit products continue to be
widely available and accepted, despite some enforcement
actions taken in recent years, notably in Buenos Aires. The
Argentine Chamber of Commerce registered an almost
30% increase in counterfeit goods from 2014 to 2015. In
particular, the number of markets built on the model of the
famous La Salada market rose by at least 15% to about 650
in 2016.

[ www.uschamber.com/ipindex 29 ]
AUSTRALIA Rank: 12/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.07
20
10 25
20 17.64
15.39
15

Enforcement 10
Trademarks
5
0
Australia Median Regional
Australia Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Biopharmaceutical IP rights available (with room for improvement 7 Pre-grant patent opposition system introduces significant delays to
in areas such as RDP) patent grants
3 Legal framework permitting blocking of foreign-hosted infringing 7 Persistent lack of cooperative scheme to address and remove
websites online infringing material without court order
3 Relatively low counterfeiting and piracy rates (although still 7 Restrictions on the use of brands, trademarks, and trade dress in
problematic) packaging
3 Civil and procedural remedies available and increased IP 7 Some enforcement loopholes present, such as insufficient criminal
specialization stemming from a recent Federal Court reform penalties and lack of ex officio authority for customs officials

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 0.75 20. Industrial design term of protection 0.4
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0.75 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.75
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.74
9. Term of protection 0.63 26. Software piracy rates 0.8
10. Exclusive rights 1 27. Civil and procedural remedies 1
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.75
12. Limitations and exceptions 1 29. Criminal standards 0.75
13. Digital rights management 1 30. Effective border measures 0.5
14. Government use of licensed software 0.75 31. Transparency and public reporting by customs 0.75
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 0 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 1
18. Exclusive rights 0.75 35. Post-TRIPS FTA 1
TOTAL: 27.07

[ 30 www.uschamber.com/ipindex ]
Spotlight on the National IP Environment

Past Editions versus Current Scores they are considered patentable subject matter as long as they
produce a new and useful physical effect on a computer.
Australia’s overall score dropped from 83% of the total possible
score (with a score of 24.79 out of 30) in the fourth edition of the
8. Patent opposition: Australia has in place a pre-grant
Index to 77% (27.07 out of 35) in the fifth edition. This mainly
opposition system for patents. Under the system, third parties
reflects weak performance in some of the new indicators, notably
may file an objection between the publishing of the application
patent opposition, and a setback in measures against online
and within 3 months after the application is accepted. The
piracy. Though not affecting Australia’s score in the fifth edition,
system is considered to extend the patent review process
the Productivity Commission’s 2016 review and recommendations
significantly, delaying the granting of patents and reducing the
on IP could fundamentally curtail IP rights (in some cases, lowering
available term of protection afforded to patent holders. For
IP standards below those in the TRIPS Agreement), contradict
example, a 2012 academic study published in the University
decades of IP policy in Australia, and severely undermine
of New South Wales Law Journal found that opposition filings
Australia’s knowledge-based economy. Proposed measures
typically delayed the granting of a patent by close to 2 years
include introducing new exclusions to patentability and raising
(the mean delay found was 2.4 years versus the median of
renewal fees to discourage use of the full term of protection. The
1.8 years). The same study found that the highest volume of
proposals also recommend tackling online piracy by reducing
oppositions is directed toward pharmaceutical patents.
access restrictions and decreasing the current 70-year term of
copyright protection significantly. If implemented, these measures
could result in a substantial drop in Australia’s Index score. Copyrights, Related Rights, and Limitations
11. Availability of frameworks that promote cooperative action
Area of Note against online piracy; and 13. Digital rights management
(DRM) legislation: In early 2016, the first two actions under
Australia’s Department of Health is seeking damages from
the web-blocking regime adopted in 2015 (which requires
biopharmaceutical innovators that pursue unsuccessful patent
rights holders to secure a court order to take down infringing
claims. Those damages are designed to compensate Australia’s
websites) were filed at the Federal Court. Judgment in the two
pharmaceutical reimbursement scheme (PBS) for any higher
cases, brought by Foxtel and Roadshow, was not yet issued
price paid for a patented medicine during the period of a
at the time of research, reflecting procedural delays inherent
provisional enforcement measure. The PBS imposes automatic
in a court-ordered notice and takedown system. Meanwhile,
price cuts on medicines as soon as competing versions enter
the industry-developed three-strikes mechanism announced
the market, but the policy entails no corresponding mechanism
in 2015 to block infringing websites was put on hold before it
to compensate innovators for losses if an infringing product is
ever entered into force, following failed negotiations between
launched prematurely. Australia’s market-size damages policy
rights holders and ISPs over who should bear the financial
unfairly tips the scales in commercial patent disputes and
burden of the system. Stakeholders have reportedly asked
creates an inappropriate conflict of interest by permitting the
the government to shelve any new copyright notice scheme
same government that examined and granted a patent to seek
proposal until 2017. As a result, Australia’s score for indicator
damages if that patent is later ruled invalid or not infringed. The
11 falls by 0.25. More generally, piracy remains a problem, as
continued use of market-sized damages will undermine patent
do loopholes in the legal framework, such as the lack of an
protection and the overall innovative environment in Australia and
adequate legal basis for addressing virtual private network use
create greater uncertainty for biopharmaceutical investors.
to circumvent geo-blocking technologies.

Patents, Related Rights, and Limitations Trademarks, Related Rights, and Limitations
2. Patentability requirements: The Australian Patent Office
20. Industrial design term of protection; and 21. Legal
released new guidance on patentability of genetic material
measures available that provide necessary exclusive
in light of the High Court’s 2015 decision in D’Arcy v. Myriad
rights to redress the unauthorized use of industrial design
Genetics. The guidelines maintain that genetic material
rights: An ongoing review of the design system would only
remains patentable, with exceptions for certain claims that
partially bring design protection to international standards.
focus on naturally occurring material. Recent court and
The current legislative framework provides for a 10-year
patent office decisions, such as Cargill Incorporated v. Dow
term of protection, does not recognize unregistered rights,
AgroSciences LLC and Arrowhead Research Corporation
lacks a grace period, and does provide for criminal liability.
(2016) APO 70, confirm that isolated nucleic acids are
These limitations result in relatively low use of design rights,
patentable as long as they have been modified. In addition,
regarded as secondary compared with other IP rights. In
2016 case law, notably Central Ltd v. Commissioner of
response to the former Advisory Council on Intellectual
Patents and Research Affiliates LLC v. Commissioner of
Property’s review of the design system, the government has
Patents, provides further clarity concerning patenting of
committed to introducing a 6-month grace period and is
business methods and software claims: broadly speaking,
considering extending design protection to 15 years.

[ www.uschamber.com/ipindex 31 ]
BRAZIL Rank: 32/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.39
15 13.23 13.79

Enforcement 10
Trademarks
5
0
Brazil Median Regional
Brazil Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic framework for IP protection in place 7 Significant regulatory barriers to the commercialization of IP assets
3 10-year minimum term of patent protection in place for 7 Key life sciences IP rights missing and challenging patentability
administrative delays environment
3 Signatory to the Patent Law Treaty 7 Patentability barriers still in place through Brazil’s National Health
Surveillance Agency (ANVISA) review of biopharmaceutical
applicants
7 Relatively high levels of estimated software piracy

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0 20. Industrial design term of protection 1
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.75
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0
8. Patent opposition 0.5 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.57
9. Term of protection 0.63 26. Software piracy rates 0.53
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0.5 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0.5
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0.75
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0.5
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0
TOTAL: 13.23

[ 32 www.uschamber.com/ipindex ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trade Secrets and Market Access
Brazil’s overall score has increased from 35% (10.41 out of 30) 24. Regulatory and administrative barriers to the
in the fourth edition of the Index to 38% (13.23 out of 35) in the commercialization of IP assets: Brazil has a number of
fifth edition. This increase in score mainly reflects a relatively policies and regulations in place to promote the transfer
strong performance in the 5 new indicators added in the fifth of technology and commercialization of IP. For instance,
edition, including transparency and public reporting by a key tenet of the 2004 Innovation Law was to encourage
customs authorities. the transfer and commercialization of technologies through
incubation services for public researchers and greater
encouragement of start-up activities. The law provides
Patents, Related Rights, and Limitations
incentives including royalty guarantees to inventors.
8. Patent opposition: Under Brazil’s Industrial Property Law Special R&D tax incentives are also in place that reward
(Lei 9,279), patent opposition proceedings are formally the commercialization and protection of IP. For example,
post-grant and can be either administrative or judicial. Brazil has R&D tax credits in place under Law No. 11.196.
Articles 50–56 of the law outline proceedings for opposing These credits include a potential 60% deduction on
a patent and nullification. Under both proceedings, these corporation tax liability and social contributions, which can
may be requested or started by either the Brazilian Patent also escalate if there is a year-on-year cumulative increase
and Trademark Office (INPI) or any person with a “legitimate in R&D spending. An additional 20% deduction is also
interest.” In addition to these formalized opposition available once an invention has been patented. However,
proceedings, Brazilian law also provides a mechanism these initiatives are in many respects undermined by an
whereby interested parties can make submissions after administrative and regulatory framework that can be both
publication of the application, but these are not formally burdensome and inefficient. For example, the practical
termed an opposition and are instead called “subsides.” It availability of the additional 20% R&D deduction for
is not clear the extent to which patent examiners rely on any patented inventions is very limited given the 10- to 13-year
such submissions as they are not statutorily obliged to do patent backlog at the INPI. More broadly, regulatory and
so or how they affect the overall patent prosecution. Article formal requirements are in place that limit the attractiveness
31 of the Industrial Property Law does not provide details. of licensing IP assets in Brazil. For example, to become
It merely states: “After publication of the application and effective and binding on third parties, licensing agreements
up to the end of the examination, interested parties may must be published in the INPI’s Official Gazette and
submit documents and data to assist the examination.” In agreements must also be approved by INPI. There are also
light of this lack of clarity of these submissions and with a limitations on fees and payments between the contracting
view of strengthening the ability to oppose patents prior parties. Exclusive licensing agreements are subject to
to their being granted, proposed 2013 amendments to the more onerous publication requirements than nonexclusive
Industrial Property Law (PL5402/2013) would, in addition to licenses, making this process more time-consuming. The
the existing post-grant opposition mechanisms, introduce result is an environment that promotes neither technology
a system of pre-grant opposition. At the time of research, transfer nor the commercialization of new ideas and
no votes had been scheduled for this bill, which is still listed technologies. Indeed, as former president of the INPI
as being under consideration by the Brazilian Congress. Jorge Avila stated in a 2016 interview, the INPI’s role in
Given the long-standing and significant backlogs at the regulating and registering licensing activity is unnecessary
INPI—ranging from 10 to 13 years depending on the field and adds additional costs and bureaucracy to the IP
of technology—it is likely that any introduction of a pre- commercialization process.
grant opposition system would add significant processing
time to an already overburdened examination system. The
experiences of other countries with pre-grant opposition
systems (including, for example, Australia) suggest that
under such a system there is not only an added processing
time due to the pre-grant mechanism, but also a real risk
that certain industries and sectors (including mining and
pharmaceuticals, which is the experience in Australia) where
a delay in patent grant can lead to a significant competitive
advantage may be abused. For example, a 2012 academic
study published in the University of New South Wales Law
Journal found that opposition filings typically delayed the
granting of a patent by close to 2 years (the mean delay
found was 2.4 years versus the median of 1.8 years).

[ www.uschamber.com/ipindex 33 ]
BRUNEI Rank: 29/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.64
15.39
14.18
15

Enforcement 10
Trademarks
5
0
Brunei Median Regional
Brunei Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Major IP reforms in the past few years including establishing a 7 No draft TPP implementing law in place or presented for discussion
dedicated IP Office (BruIPO)
7 Life sciences IP rights lacking
3 Removed from the Office of the U.S. Trade Representative’s (USTR)
7 Regulatory data protection not available
Special 301 Report
7 Compulsory license framework overly broad
3 Signatory to the TPP
7 Limited framework for addressing online piracy and circumvention
devices
7 No notice and takedown system for copyright or trademarks
7 High software piracy rates—66% in latest estimates

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 0.75 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0.75 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 0.5 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.46
9. Term of protection 0.53 26. Software piracy rates 0.34
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0.25 29. Criminal standards 0.5
13. Digital rights management 0.25 30. Effective border measures 0
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0.5
TOTAL: 14.18

[ 34 www.uschamber.com/ipindex ]
Spotlight on the National IP Environment

Past Editions versus Current Scores of IP rights, such as trademarks and patents, was much
lower. The accession by Brunei to the Hague Agreement in
Brunei’s overall score has increased from 38% (11.44 out of 30)
2013 is a positive step and provides a new avenue for the
in the fourth edition of the Index to 41% (14.18 out of 35) in
international registration of design rights.
the fifth edition. This increase in score mainly reflects a
relatively strong performance in the 5 new indicators added
in the fifth edition.

Patents, Related Rights, and Limitations

8. Patent opposition: The 2011 Patent Order offers neither
pre- nor post-grant opposition proceedings. Instead,
formal invalidity proceedings can be raised through Part
XIV “Revocation of Patents and Validity Proceedings” of
the order. Specifically, section 77 allows the patent registrar
to accept applications by “any person” questioning the
validity of a granted patent. In addition to this administrative
proceeding, invalidity proceedings may also take place
through a court of law and civil proceedings. Given that
the Patent Order is a recent piece of legislation, there is
limited case evidence as to the manner in which revocation
proceedings take place and the overall effect on the IP
environment in Brunei.

Trademarks, Related Rights, and Limitations

20. Industrial design term of protection; and 21. Legal
measures available that provide necessary exclusive
rights to redress the unauthorized use of industrial
design rights: Both the Emergency Industrial Designs Order
1999 and the Emergency Industrial Designs Rules 2000
provides for a relatively comprehensive legal framework for
the protection of industrial designs. Section 29 of the order
provides an initial term of protection of 5 years, which can
be extended twice up to a total of 15 years. While higher
than in other economies included in the Index, this term is
still less than two-thirds of the international best practice
and baseline term of protection of 25 years used within the
EU and many other high-income economies. Sections 31–32
of the Designs Order confer exclusive rights and use of
registered industrial designs including rights of manufacture,
sale, and importation. However, design rights, like other
IP rights, are difficult to enforce in Brunei. Counterfeiting
of apparel and designed goods remains high. As noted
in preceding editions of the Index, Brunei customs
authorities do not offer a registration system through which
rights holders can record their registered design rights,
trademarks, or copyrighted goods. Indeed, public guidance
by the EU Commission suggests that the detention of
suspected infringing goods by Brunei’s customs authorities
is rare. Furthermore, awareness of the availability of design
rights remains low. Official statistics from the Brunei IP
Office show that the number of registration applications
between 2012 and 2016 relative to other registerable forms

[ www.uschamber.com/ipindex 35 ]
CANADA Rank: 17/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.03
20
10 25 21.44
20
15.39
15

Enforcement 10
Trademarks
5
0
Canada Median Regional
Canada Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 70-year copyright term of protection for sound recordings 7 Continued imposition of onerous patentability requirements
introduced in 2015 narrows the scope of inventions for biopharmaceuticals
3 Border controls confirmed by Canadian government to provide 7 Strong signals from Canadian government that standardized
ex officio authority to Canadian customs officials packaging is to be introduced
3 Signatory to the TPP and CETA agreements in 2016 7 Lack of border measures for in-transit goods and limited
transparency and information available from Canadian Customs on
seizure statistics

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.25 20. Industrial design term of protection 0.4
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.75
4. Pharmaceutical-related enforcement 0.25 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 1
7. Regulatory data protection term 0.8 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 0.75 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.6
9. Term of protection 0.63 26. Software piracy rates 0.76
10. Exclusive rights 0.5 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0.25 28. Pre-established damages 0.25
12. Limitations and exceptions 0.25 29. Criminal standards 0.5
13. Digital rights management 0.75 30. Effective border measures 0.5
14. Government use of licensed software 1 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.75 34. Patent Law Treaty 0.5
18. Exclusive rights 0.75 35. Post-TRIPS FTA 0.5
TOTAL: 21.44

[ 36 www.uschamber.com/ipindex ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trademarks, Related Rights, and Limitations
Canada’s overall score has increased marginally from 60.5% 16. Discrimination/restrictions on the use of brands in the
(18.17 out of 30) in the fourth edition to 61.3% (21.44 out of packaging of different products: In its preelection party
35) in the fifth edition. This change in score reflects a relatively platform published in 2015, the Liberal Party of Canada
mixed performance on the 5 new indicators added to the fifth stated that, if elected, it would seek to “introduce plain
edition. At the time of research, the Canadian Parliament was packaging requirements for tobacco products, similar to
still considering legislation to implement the CETA treaty; those in Australia and the United Kingdom.” Following
by December 2016, the bill had been sent to the Standing the party’s electoral victory, the prime minister included a
Committee on International Trade. As noted in previous editions reference to plain packaging in his mandate letter to the
of the Index, Canada’s score would increase considerably with Minister of Health. In May 2016, the Canadian Department
full ratification and implementation of CETA, which would of Health issued the document “Consultation on ‘Plain and
primarily affect scores in life sciences–related indicators and Standardized Packaging’ for Tobacco Products.” At the
international treaties. time of research, the consultation had been closed and
neither the department nor the government of Canada had
issued any further statements. In addition to proposals of
Patents, Related Rights, and Limitations
standardizing tobacco packaging and restricting the use
2. Patentability requirements: As detailed in previous of trademarks, brands, and related IP, the consultation also
editions of the Index, since the mid-2000s, Canadian included proposals for standardizing the appearance, color,
Federal Courts have issued a growing number of decisions and physical size of tobacco products. The introduction
on the basis of patent utility in relation to biopharmaceutical of standardized packaging applied to any industry would
patents. In no fewer than 28 cases, courts have ruled that significantly restrict the use of brands, trademarks, and
biopharmaceutical patents were invalid owing to lack trade dress on retail packaging, undermining the benefits of
of utility, even though these patented medicines were trademarks to businesses and consumers alike and setting
found to be safe and effective by Health Canada and a negative precedent for IP policy. The passage of such
were being used by hundreds of thousands of Canadian legislation would decrease Canada’s score on this indicator
patients. The Canadian standard of utility established from 1 to 0.
through this case law differs from international standards
embodied in TRIPS and the Patent Cooperation Treaty, as
well as from the practices of patent offices in the United
States and EU. Canada’s utility test is accompanied by a
heightened evidentiary burden that requires innovators
to demonstrate the effectiveness of a biopharmaceutical
in light of statements in the patent that the court
subjectively construes as a “promise” of utility. The test
increases uncertainty as to how much information needs
to be disclosed in patent applications and discriminates
against biopharmaceutical patents. In November 2016,
the Supreme Court of Canada heard oral arguments in the
long-running case AstraZeneca Canada Inc. v. Apotex Inc.
AstraZeneca is appealing a 2015 judgment by the Federal
Court of Appeal that in turn upheld a lower court finding
of lack of utility. The Court of Appeal had ruled that the
“promise” of utility made in the original patent “was neither
demonstrated nor soundly predicted at the time the patent
was filed.” A final verdict is expected in early 2017. The
court’s judgment could prove to be a critical turning point in
either entrenching what has become an outlier patentability
requirement or realigning Canada’s requirement with
international standards.

[ www.uschamber.com/ipindex 37 ]
CHILE Rank: 26/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.14 15.39
15 13.79

Enforcement 10
Trademarks
5
0
Chile Median Regional
Chile Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic civil and procedural remedies for IP infringement in legislation 7 Patchy patent protection for pharmaceuticals, including obstacles
to patentability and lack of effective patent enforcement
3 Efforts to improve enforcement through interagency coordination,
international cooperation, information sharing, and pending IP 7 High levels of counterfeiting and piracy
reform
7 Lack of sufficient framework to tackle online piracy, including TPM
3 Commitment to improve IP environment through international provisions and deterrent punishments
trade agreements
7 Criminal enforcement problematic and rarely pursued, notably for
3 Efforts to streamline IP registration process, including a recent PPH copyright piracy
agreement with Mexico, Colombia, and Peru

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.25 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0.6 23. Non-barriers to market access 0.25
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.58
9. Term of protection 0.63 26. Software piracy rates 0.43
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0 30. Effective border measures 0.25
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0.5
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 1
TOTAL: 15.14

[ 38 www.uschamber.com/ipindex ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Membership and Ratification of International

Chile’s overall score has dropped slightly, falling from 44% of the Treaties
total possible score (with a score of 13.05 out of 30) in the fourth 35. At least one free trade agreement (FTA) with substantive
edition to 43% (15.14 out of 35) in the fifth edition. This drop in and/or specific IP provisions such as chapters on IP and
score mainly reflects gaps in Chile’s framework in relation to the separate provisions on IP rights provided it was signed
new indicators added in the fifth edition, particularly in relation after WTO/TRIPS membership: The TPP was signed on
to the pre-grant patent opposition available in Chile. Overall, February 4, 2016, by the 12 contracting members and is
the IP environment continues to be challenging, with barriers to expected to create a more level playing field in IP and
IP on the ground and no major movement to address existing reflect 21st century realities. Implementation of the TPP
gaps with international standards. Draft legislation that could fill provisions by the Chilean Congress would involve important
in some existing loopholes, notably with regard to enforcement, commitments to filling in gaps in life sciences IP protection,
remains under consideration. including in relation to RDP, as well as in the area of online
piracy, such as the circumvention of TPMs.
Patents, Related Rights, and Limitations
6. Patent term restoration for pharmaceutical products:
Patent term restoration for pharmaceuticals came under
scrutiny in 2016, when the National Economic Prosecutor’s
Office (FNE) issued a study on restoration’s effect on
competition with regard to the entry of generic drugs.
Among other elements, the FNE recommended that Article
53bis of the IP Code dealing with patent term restoration,
introduced in 2007 as part of Chile’s commitments in the
US-Chile FTA, should not be interpreted widely such that
patent term restoration is granted to patents issued prior
to the amendments (as they are currently). In addition,
FNE’s proposals would introduce pre-grant opposition
or post-grant nullity action specifically for supplementary
protection of such patents, an approach that diverges from
international standards. The study does not address how to
tackle very long patent approval delays, which at present
average about 11 years.

Enforcement
25. Physical counterfeiting rates: Against a background of
increasing availability of fake goods, positive steps taken in
2016 suggest a somewhat greater awareness of the scope
of counterfeiting and piracy in Chile. These steps include
the creation of a public-private platform on illicit trade
(Observatorio del Comercio Ilícito) reportedly aimed at
informing policies and better coordinating actions against
trade-related infringement. They also include various
awareness and information campaigns, notably with regard
to a recent change to the Penal Code that criminalizes
repeat purchasing of counterfeits. However, these efforts
must be coupled with effective prosecution and more
deterrent penalties for infringers (expected to be
partially addressed in the current draft IP bills, should
they be approved).

[ www.uschamber.com/ipindex 39 ]
CHINA Rank: 27/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.64
14.83 15.39
15

Enforcement 10
Trademarks
5
0
China Median Regional
China Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic IP rights in place (with some exceptions) 7 Levels of IP infringement are at historic levels and growing
3 New and proposed patent and copyright reform extends 7 Interpretation of IP laws by administrative and judicial authorities is
protection and strengthens enforcement at times out of sync with international standards
3 Growing expertise and awareness of the value of IP across different 7 Ability to secure adequate remedies for infringement, although
levels of government and enforcement agencies improving, remains a critical challenge
3 Relatively strong public reporting of IP-related seizures by customs 7 Substantial barriers to market access and commercialization of IP,
authorities particularly for foreign companies

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 0.4
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0
7. Regulatory data protection term 0.6 24. Regulatory and administrative barriers to commercialization 0
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0
9. Term of protection 0.53 26. Software piracy rates 0.3
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.5
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0.5
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0
TOTAL: 14.83

[ 40 www.uschamber.com/ipindex ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trademarks, Related Rights, and Limitations
China’s overall score in relation to the total possible score has 17. Ability of trademark owners to protect their trademarks:
remained the same at 42% (with a score of 14.83 out of 35 in the requisites for protection; and 18. Legal measures
fifth edition). China did see a rise in score in relation to available available that provide necessary exclusive rights to
damages for IP infringement as a result of a 2016 Judicial redress unauthorized uses of trademarks: High-profile
Interpretation outlining enhanced damage calculations for decisions in 2016 show interest by China’s highest court to
patent infringement. China also receives points from certain new address key challenges in the registration of trademarks.
indicators added in the fifth edition, particularly for the relatively Most recently, China’s Supreme People’s Court found that
strong level of transparency and public reporting by customs a Chinese sporting goods chain, Qiaodan Sports, filed the
authorities on trade-related IP infringement. However, crucial Chinese-language version of Michael Jordan’s name in bad
gaps in the areas of industrial design protection and barriers to faith. The decision recognized the “high reputation” of
commercialization of IP assets hold China back from a further rise Michael Jordan in China, taking into consideration evidence
in score as a result of the 5 new indicators. previously refused by the lower court. The Supreme People’s
Court also rejected the lower courts’ “definitive association”
General Note standard and replaced it with a broader “stable association”
standard. In cases for global brands Apple and Facebook,
In 2016, the Chinese government issued a wide-ranging action
the Beijing High Court determined that the brands’
plan on IP, the State Council’s Opinions on Accelerating the
well-known status did not apply in relation to opposing
Establishment of a Strong IPR Country. The plan reiterated
registrations of similar marks because the applications for
proposals and ongoing efforts to enhance IP cooperation,
these marks were filed, in the court’s view, before the brands
promote growth of IP-intensive industries, and remove barriers
had achieved notoriety in China. However, in the Facebook
to leveraging IP outside China, as well as improve the availability
case, the court ultimately rejected the opposed mark, given
of remedies for IP infringement and issue further guidance on IP
that the individual attempting to register it displayed signs
and competition.
of bad faith conduct.

Patents, Related Rights, and Limitations 21. Legal measures available that provide necessary
2. Patentability requirements: In 2016, the State Intellectual exclusive rights to redress the unauthorized use of
Property Office (SIPO) issued proposed amendments to its industrial design rights: Chinese patent law provides
patent examination guidelines. The amendments aim to for general exclusive rights for design patent holders.
address existing uncertainty in SIPO guidance and practice However, the standards for determining eligibility for design
around the ability to submit post-filing experimental data protection are considered to be fairly low (the law provides
in order to fulfill sufficiency of disclosure requirements, limited criteria for obtaining design protection and no
particularly in relation to life sciences patents. The guidance substantive review takes place), leading to many low-value
confirms that post-filing data is permitted if it supports a patents and a high rate of invalidations. According to local
technical effect previously disclosed in the application. In legal experts, this trend has also led to a growing incidence
addition, the amendments also clarify that business methods of design patent trolls and additional costs and uncertainty
and computer-implemented inventions involving software for multinational technology companies.
may be considered patentable subject matter as long as
they produce a technical effect and other patentability
criteria are met. Depending on their final form and
implementation, these amendments could help strengthen
the patenting environment in China.

4. Pharmaceutical-related patent enforcement and

resolution mechanism; and 7. Regulatory data protection
term: The latest draft amendments to the Drug Registration
Regulations removed provisions on patent enforcement
and regulatory data protection (RDP). Patent enforcement
and RDP are essential components in creating a regulatory
system that promotes innovation. Without a patent
enforcement system that includes an effective early dispute
resolution mechanism (also known as patent linkage), it is
unclear how marketing approvals for drugs will be handled
before a patent expires.

[ www.uschamber.com/ipindex 41 ]
Trade Secrets and Market Access Enforcement
23. Barriers to market access: Revisions to the High and New 27. Civil and procedural remedies; and 28. Preestablished
Technology Enterprise regime issued in 2016 raise the damages and/or mechanisms for determining the
criteria for IP ownership for companies seeking to qualify amount of damages generated by infringement: The
for a reduction in corporate income tax on the basis of R&D draft patent amendments issued by SIPO and under review
conducted in China. Under the revised rules, in order to in 2016 would increase statutory damages significantly from
benefit from a reduced corporate tax rate (15% instead of RMB10,000–RMB1 million to RMB100,000–RMB5 million
25%), companies must locally own, rather than license, IP (about USD750,000). In relation to damages, the Judicial
and the IP must be related to the company’s core products Interpretation on patent infringement shifts the burden of
and services. The heighted requirements for the transfer of proof to infringers and allows the release of evidence from
IP present higher transaction costs and barriers to accessing infringers in order to promote a more accurate calculation
the market, particularly for multinational companies. of damages, resulting in a rise in score of 0.25 for indicator
28. Local statistics generated from court cases since 2014
24. Regulatory and administrative barriers to the indicate that currently, on average, damages awarded
commercialization of IP assets: Technology companies are about RMB80,000, which is considered too low to
face a growing number of regulatory and procedural barriers compensate patent holders adequately. At the same time,
to licensing in China that impede technology flows and the draft patent amendments would expand administrative
R&D cooperation. In general, licensing agreements must enforcement of patents, including extending the authority
receive government approval. In addition, technology afforded to local IP offices (such as the ability to investigate
import/export regulations involve discriminatory conditions and impose patent infringement penalties). Legal experts
for foreign licensors, including indemnification of Chinese raise concerns that this may heighten existing uncertainty
licensees against third-party infringement and transfer of about the respective roles of administrative departments
ownership of future improvements on a licensed technology and courts and undermine effective enforcement.
to the licensee (whereas a Chinese IP owner is able to
negotiate different terms). In the context of standards-
setting, there is also a trend toward greater administrative
involvement in determining patent licensing terms and the
ability to secure relief from infringement. The Anti-Monopoly
Commission is preparing Anti-Monopoly Guidelines on
the Abuse of Intellectual Property Rights, based on input
from the three antimonopoly enforcement agencies. Draft
Guidelines released by the individual enforcement agencies
in 2016 raised serious concerns among industry regarding
provisions that would impose antimonopoly sanctions on
refusals to license and excessive pricing. In addition, draft
patent amendments would allow for automatic licensing of
Standard Essential Patents (SEPs) where a patent was not
disclosed as part of participation in a national standard-
setting process (although royalties would be negotiated
separately). In the meantime, the new Judicial Interpretation
on patent infringement allows a court to not issue
injunctions in cases of infringement where it determines the
patent holder has not followed fair, reasonable, and non-
discriminatory (FRAND) license terms, and inadequate detail
is provided concerning how this would be determined,
leaving greater room for reverse patent hold up.

[ 42 www.uschamber.com/ipindex ]
COLOMBIA Rank: 25/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.22 15.39
15 13.79

Enforcement 10
Trademarks
5
0
Colombia Median Regional
Colombia Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Patent office efforts to streamline procedures, including a pilot PPH 7 Key life sciences IP rights missing or significantly undermined in
with the EU and a new online IP system application
3 Basic legal framework for major IP rights 7 Use of the international compulsory license regime to leverage
price reduction for biopharmaceuticals
3 IP enforcement framework includes civil and criminal remedies and
border measures 7 Persistent gaps in copyright framework specifically addressing the
online environment
3 Heightened efforts around IP capacity building among judiciary
and customs agencies and improving IP information collection and 7 Delayed, inadequate prosecution of IP rights and nondeterrent
sharing sentencing

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0.5 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0.25 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.25
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.48
9. Term of protection 0.84 26. Software piracy rates 0.5
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.5
12. Limitations and exceptions 0.25 29. Criminal standards 0.5
13. Digital rights management 0 30. Effective border measures 0.5
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0.5
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 1
TOTAL: 15.22

[ www.uschamber.com/ipindex 43 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores be decided by decree) and would increase copyright protection
to 70 years for works for hire as well as for phonograms and
Colombia’s overall score has fallen substantially from 46% of
broadcasts. However, it falls short of addressing other key gaps
the total possible score in the fourth edition (with a score of
in the online copyright regime, including in relation to ISP
13.77 out of 30) to 43% (15.22 out of 35) in the fifth edition.
liability and assistance in taking down infringing content online.
Although Colombia’s score rose in relation to the patentability
of computer-implemented inventions (with evidence of higher
volumes and speedier patenting of computer-related patents), Trade Secrets and Market Access
the drop in overall performance results from challenges about 24. Regulatory and administrative barriers to the
compulsory licensing and relatively low scores in new indicators, commercialization of IP assets: A number of barriers to
particularly in relation to patent opposition and licensing the licensing of IP assets exist in Colombia. Colombian
barriers. On a positive note, efforts to increase awareness and public sector researchers and university faculty are not
information on IP infringement have intensified over the past allowed a second salaried income, limiting incentives
year and could lead to an improvement in the enforcement for setting up new businesses through spin-offs or start-
category in future editions of the Index. ups. Looking at outputs, relatively few universities derive
significant forms of income from commercialization and
Patents, Related Rights, and Limitations commercial research services. In addition, Colombian law
prohibits any nonprofit organization, including private
5. Legislative criteria and active use of compulsory
universities, from engaging in commercial activities. Andean
licensing of patented products and technologies: In
Community legislation also adds significant restrictions on
2016, the Ministry of Health and Colombian government
agreements with foreign licensors, requiring the registration
actively considered (on the basis of a recommendation
and evaluation of licenses by national authorities on the
of an internal committee) issuing a compulsory license
basis of subjective criteria regarding the so-called value of
on the oncology drug Glivec owing to high prices. At the
imported technologies.
time of research, the Colombian government had issued
a “Declaration of Public Interest” via Resolution 2475 and
committed to unilaterally reducing the price of Glivec
by about 45%. Although not progressing to the actual
issuing of a compulsory license at the time of research,
the above steps can be viewed as a manner of abusing
the international compulsory licensing regime for price
considerations even though no patient access concerns
were cited. On the contrary, competing polymorph forms
of the medicine are available on the Colombian market and
the price for Glivec was set and reduced multiple times by
the Colombian government under the existing price control
regime in Colombia.

Copyrights, Related Rights, and Limitations

A new legislative attempt to update the 1982 Copyright Law
took place in 2016 with the submission of a new reform attempt,
“Ley Lleras 5,” that would allow Colombia to partially comply
with commitments made in its TPA with the U.S. Among other
elements, the draft extends civil liability to the circumvention
of TPMs as well as to the production and sale of circumvention
devices, and allows the destruction of circumvention devices
and infringing materials. In addition, the draft expands certain
exclusive rights to authors and phonogram producers, including
making available the right and protection of temporary copies.
At the same time, the text also seeks to update copyright
exceptions by adding exceptions for library and research use
and for temporary electronic copies not involving commercial
gain, among others. Moreover, it introduces statutory damages
for copyright infringement (although the actual amounts must

[ 44 www.uschamber.com/ipindex ]
ECUADOR Rank: 36/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.39
15 13.79
10.59
Enforcement 10
Trademarks
5
0
Ecuador Median Regional
Ecuador Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 New five-year term of RDP defined in new 2016 law Código 7 Código Ingenios raises uncertainty about compatibility with current
Ingenios IP laws
3 Limited re-criminalization of IP rights through 2016 criminal law 7 Código Ingenios limits number of renewable periods for trademark
amendments registrations, in violation of the TRIPS Agreement
3 Signed and acceded to WIPO Internet Treaties 7 Código Ingenios imposes new limits on patentability and number
of non-patentable subject matter
7 Persistently high levels of piracy

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.39
9. Term of protection 0.73 26. Software piracy rates 0.32
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0.5
14. Government use of licensed software 0 31. Transparency and public reporting by customs 0.25
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 10.59

[ www.uschamber.com/ipindex 45 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores patentability or ownership of the invention.” Unlike Decision
486, Ecuador’s Intellectual Property Law does not provide an
Ecuador’s overall score has increased marginally from 29% (8.62
overall maximum time limit on oppositions, whereas Article
out of 30) in the fourth edition to 30% (10.59 out of 35) in the
44 of the Andean Decision provides a six-month maximum
fifth edition. This change in score reflects a relatively mixed
time limit. There is limited evidence on the practical use of
performance on the 5 new indicators added to the fifth edition.
the opposition mechanism in Ecuador and the effect it has
on the swift and effective prosecution of patent applications.
General Comments However, given the long general timelines for patent
In October 2016, Ecuador’s National Assembly passed the prosecution in Ecuador—local legal analysis suggests a
Código Orgánico de Economía Social del Conocimiento, typical patent takes six to eight years from filing to grant—
la Creatividad y la Innovación (Código Ingenios), a law that the current pre-grant opposition format is unlikely to help
touches on all facets of IP rights. The law aims to encourage reduce these timelines.
innovation, R&D, and the development of new technologies
in Ecuador and contains a strong element of local preferences
Enforcement
and discrimination against foreign companies. For example,
Article 148 introduces a requirement and order of prioritization 29. Criminal standards including minimum imprisonment and
for public sector procurement of software. This article stipulates minimum fines: As noted in previous editions of the Index,
that software should be open source and/or contain a significant 2013 amendments to the Intellectual Property Law removed
amount of local Ecuadorean value added in either its production criminal penalties and sanctions for IP rights infringement;
or the provision of services. Foreign suppliers are discriminated as a result, Ecuador’s enforcement environment stood
over domestic producers and suppliers. The legislation also firmly outside international standards. In late 2015,
contains a number of negative provisions relating to existing amendments to the Penal Code (Código Orgánico Integral
patent laws and practices and trademarks. For example, Article Penal) were introduced with new limited sanctions put in
268 increases the number of non-patentable subject matter and place for the commercial infringement of trademarks and
Article 274 eliminates any patentability of second use inventions. copyrights. Specifically, a new Article 208A was inserted to
While the latter is part of Andean Decision 486, this restriction the code that provides minimum and maximum fines for
had nevertheless not been codified previously in Ecuador’s commercial infringement of these IP rights. The new law
existing Intellectual Property Law. With regard to the protection provides statutory fines that, depending on the scale of
of trademarks, the term of protection for trademarks has been commercial infringement, range from a minimum fine of
amended under Article 365 with renewal periods limited to roughly USD20,000 to a maximum fine of over USD100,000.
two renewals. This markedly stands in contrast to TRIPS Article The fines are calculated based on the “salarios básicos
18, which states that “the registration of a trademark shall be unificados del trabajador en general,” which is a standard
renewable indefinitely.” On a positive note, Article 509 contains salary measurement set annually by the Ecuadorean
a defined five-year term of regulatory data protection for government. In 2016, this unit was set at USD366 per
biopharmaceutical test data. As noted in previous editions of the month. Although reimposing criminal sanctions and fines for
Index, the existing Intellectual Property Law contains an article trademark and copyright infringement is a positive step for
on RDP but does not include a defined term of protection. Ecuador, these new sanctions do not include imprisonment
At the time of research, the legislation had not yet officially and the fines are inversely proportioned to the scale of
become law and it remains unclear the extent to which this new the infringement, with small-scale infringement receiving a
legislation will interact with or override the existing Intellectual larger fine in proportion to the value of the infringement.
Property Law. Consequently, Ecuador’s score has not been
affected by this legislation for this edition of the Index.

Patents, Related Rights, and Limitations

8. Patent opposition: Under the 2006 Intellectual Property
Law and in line with its commitments under Andean
Decision 486, Ecuador provides a legal mechanism for
challenging the validity of a pending patent. The relevant
Articles 142–145 of the law outline what is essentially a
pre-grant opposition mechanism. Article 142 states that
“within a period of 30 working days following the date of
publication, anyone with a legitimate interest may, on one
occasion only, file reasoned objections that may nullify the

[ 46 www.uschamber.com/ipindex ]
EGYPT Rank: 41/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.39
15 13.73
9.38
Enforcement 10
Trademarks
5
0
Egypt Median Regional
Egypt Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 As a WTO member, basic national IP framework in place 7 Limited framework for protection of life sciences IP rights
3 Relative freedom to patent CIIs and support from government 7 Gaps in copyright law and framework, particularly with regard to
agencies protection of content online
7 High levels of piracy
7 Challenging enforcement environment and lack of border
measures
7 Limited participation in international IP treaties

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.25 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0.5 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.75
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.26
9. Term of protection 0.38 26. Software piracy rates 0.39
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0
12. Limitations and exceptions 0.5 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0
14. Government use of licensed software 0 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 9.38

[ www.uschamber.com/ipindex 47 ]
Spotlight on the National IP Environment

Patents, Related Rights, and Limitations law does not provide specific remedies or rights within an
online or digital context. For example, the law does not
2. Patentability requirements; and 3. Patentability of
include any notification and takedown system in place for
computer-implemented inventions (CIIs): The 2002 Law 82
online infringement, and Article 181 of the law contains only
“Pertaining to the Protection of Intellectual Property Rights”
rudimentary DRM protection measures and technological
provides definitions and standards for all IP rights including
protection measures with, for instance, distribution not listed
patents and patentability. Article 1 of Book One states that
as an offense.
patents should be granted for inventions that are new,
involve an inventive step, and are industrially applicable.
Local legal analysis suggests that, unlike most patent offices, Enforcement
the Egyptian Patent Office does not allow second use claims 26. Software piracy rates; 27. Civil and procedural remedies;
in Swiss form or otherwise. Looking at the patentability of 28. Preestablished damages and/or mechanisms for
CIIs, some uncertainty about the current situation exists. determining the amount of damages generated by
Egypt promotes a system of software registration and infringement; and 29. Criminal standards including
protection for computer software under copyright, but minimum imprisonment and minimum fines: Rights
the patenting of “programs” is not allowed under Law 82. holders face a challenging environment for enforcing IP
However, practice suggests that CIIs are indeed granted. rights in Egypt. Civil remedies, criminal standards, and
The Information Technology Industry Development Agency mechanisms for determining damages are in place but are
(part of the Ministry of Communications and Information relatively low and not consistently applied or enforced. Basic
Technology) directly supports and sponsors the filing of civil remedies are in place for the infringement of all IP rights
patents for CIIs in Egypt and abroad. And looking at patent including the issuing of injunctions and the seizure of profits
applications in Egypt, WIPO statistics from 2000 to 2014 and infringing goods, but enforcement is difficult because,
show computer technology filings as the third largest as mentioned, Egypt’s court system is overburdened.
category of filing at the Egyptian Patent Office at 7.13% of Criminal sanctions are available under existing copyright
the total. Still, survey evidence from a 2014 study by WIPO and trademark laws, but these sanctions are relatively
of the Egyptian ICT sector shows the use of IP rights to lenient; for example, businesses engaging in infringement
protect new technologies even within the software industry can be ordered closed, but only for a maximum period of
is currently underused. While 95% of participating small and six months. Levels of physical counterfeiting and online
medium-sized enterprises (SMEs) claimed they were creating piracy are high. The Business Software Alliance estimates
IP assets that should be protected, only 25% actually did that Egypt’s software piracy rate is 61%; this has remained
formally protect these assets through the use of IP rights. virtually unchanged since 2009. Estimated rates of physical
counterfeiting are also high; for example, EU customs lists
4. Pharmaceutical-related patent enforcement and Egypt as the top country of origin for counterfeit goods.
resolution mechanism: There is currently no mechanism
that links the market authorization of a follow-on 30. Effective border measures; and 31. Transparency and
biopharmaceutical product with the exclusivity status of public reporting by customs authorities of trade-related
the reference product. Industry reports suggest that, since IP infringement: Ex officio action is not explicitly provided
2013, a number of follow-on products have been granted by Customs Law or the 2005 “Executive Regulation to
market authorization by the health authorities even though Implement Import and Export Law” (No. 770/2005).
the reference product is under patent protection. Given Egyptian customs authorities do not use a centralized
the difficulties in enforcing IP rights through the Egyptian recording system. Existing procedures require rights
court system—Egypt ranked 104 out of 113 countries on holders to notify customs in advance of specific suspected
availability of civil justice and enforcement on the 2016 shipments and provide evidence of infringement of their IP
World Justice Project’s Rule of Index—the lack of a linkage rights. Local legal analysis suggests that border measures do
mechanism means rights holders have a very limited ability not extend to goods in transit; Egyptian IP law relates only
to protect and defend their IP from infringement. to goods intended for the Egyptian market.

Copyrights, Related Rights, and Limitations Membership and Ratification of International

10. Legal measures that provide necessary exclusive rights Treaties
preventing infringement of copyrights and related Egypt is not a contracting party to any of the IP treaties included
rights (including Web hosting, streaming, and linking); in the Index. The 2001 EU-Egypt Association Agreement
and 13. Digital rights management (DRM) legislation: contains limited references to IP rights.
Book 3 of Law 82 provides standard exclusive rights. The

[ 48 www.uschamber.com/ipindex ]
FRANCE Rank: 6/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights 30.87
International Treaties 30
30 27.61
20
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
France Median Regional
France Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Criminal sanctions against counterfeiting strengthened in 2016 7 Continued uncertainty over enforcement of copyright online and
the HADOPI agency
3 Strong and sophisticated national IP environment
7 Plain packaging introduced in first quarter of 2016
3 Sector-specific IP rights in place, such as regulatory data protection
and patent term restoration 7 Still relatively high estimated software piracy rates for a
high-income OECD economy at 34% in 2015

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 1 20. Industrial design term of protection 1
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 1
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.75
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.72
9. Term of protection 0.74 26. Software piracy rates 0.66
10. Exclusive rights 0.75 27. Civil and procedural remedies 1
11. Cooperative action against online piracy 0.75 28. Pre-established damages 1
12. Limitations and exceptions 1 29. Criminal standards 1
13. Digital rights management 1 30. Effective border measures 1
14. Government use of licensed software 0.75 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 0 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 1
18. Exclusive rights 1 35. Post-TRIPS FTA 1
TOTAL: 30.87

[ www.uschamber.com/ipindex 49 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trademarks, Related Rights, and Limitations
France’s overall score has decreased from 90.7% (27.22 out of 16. Discrimination/restrictions on the use of brands in
30) in the fourth edition to 88.2% (30.87 out of 35) in the fifth the packaging of different products: Plain packaging
edition. Although this score reflects a strong performance in the legislation (Law N. 2016-41) was adopted in 2015 and
5 new indicators added in the fifth edition, the introduction of entered into force in 2016. Starting from this date, tobacco
plain packaging for tobacco products has resulted in a reduction products in France are sold in logo-free packages and brand
of France’s score by 1 point. names appear in a small, uniform typeface, as defined by
Decree No. 2016-334 of March 2016. France’s Constitutional
Council upheld the validity of Law N. 2016-41 in January
Copyrights, Related Rights, and Limitations
2016. The introduction of this measure significantly restricts
10. Legal measures that provide necessary exclusive rights the use of brands, trademarks, and trade dress on retail
preventing infringement of copyrights and related rights packaging, undermining the benefits of trademarks to
(including Web hosting, streaming, and linking): As businesses and consumers alike, and sets a negative
discussed in previous editions of the Index, the antipiracy precedent for IP policy. The passage and implementation of
institutional setting came under increased scrutiny when this legislation has decreased France’s score on this indicator
an amendment to dismantle HADOPI (the independent from 1 to 0.
agency charged since 2010 with implementing a three-strike
regime against copyright infringers) was initially adopted
by the French National Assembly but later removed by Enforcement
the Senate. This followed publication by the Senate of a 29. Criminal standards including minimum imprisonment
report on independent administrative authorities that found and minimum fines: Article 44 of Law 731-2016 stiffens
HADOPI’s graduated response mechanism inadequate remedies for organized counterfeit activities. Organized
to curb online piracy. From 2010 to 2015, more than 5.4 counterfeiters can be punished with up to seven years in
million infringement notices had been delivered, with prison and a fine of up to EUR750,000 (instead of five years
504,000 account holders receiving a second notice and and EUR500,000, respectively).
2,900 receiving a third one, and about 400 more serious
cases reported for prosecution. However, many of these
reportedly were archived or resulted in a “reminder of
the law.” The number of cases reported for prosecution
increased considerably from June 2015 to June 2016,
with more than 600 in that 12-month span. The French
Administrative Supreme Court (Conseil d’Etat) ordered the
prime minister to take regulatory measures to indemnify
ISPs and granted one of them EUR900,000 in compensation
for the costs incurred in implementing HADOPI’s system.
No decree had been published at the time of research, but
the agency’s budget has been increased, possibly to cover
these new costs. Dismantling HADOPI was first included in
President Hollande’s electoral campaign agenda in 2012,
together with a reform of the copyright remuneration
system. Acting on this second issue, in June 2016 the
French Parliament adopted a bill on “Freedom of Creation,
Architecture, and Heritage.” The bill remains mostly silent
on the online environment, with the noticeable exception
of demanding search engines to pay royalties for indexing
images online. Last, the bill “For a Numerical Republic”
adopted in October 2016, which introduces into French
law a freedom of panorama exception, did not adopt an
amendment proposing a proactive role by intermediaries
against piracy and counterfeit online; however, the issue
remains under discussion in the framework of the EU
copyright reform.

[ 50 www.uschamber.com/ipindex ]
GERMANY Rank: 3/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35 31.92
50
40
Copyrights
International Treaties 30
30 27.61
20
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
Germany Median Regional
Germany Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 2015 court ruling confirms ISPs’ obligation and duty of care with 7 Damages awarded historically not adequate
regard to suspected copyright infringement
7 Patent Law Treaty signed but not ratified
3 Advanced and sophisticated national IP environment
3 Sector-specific IP rights in place, such as regulatory data protection
and patent term restoration
3 Legal measures in place to address unauthorized use of trademarks

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 1 20. Industrial design term of protection 1
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 1
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.76
9. Term of protection 0.63 26. Software piracy rates 0.78
10. Exclusive rights 1 27. Civil and procedural remedies 1
11. Cooperative action against online piracy 1 28. Pre-established damages 0.75
12. Limitations and exceptions 0.75 29. Criminal standards 1
13. Digital rights management 1 30. Effective border measures 1
14. Government use of licensed software 1 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 0.5
18. Exclusive rights 1 35. Post-TRIPS FTA 1
TOTAL: 31.92

[ www.uschamber.com/ipindex 51 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores

Germany’s overall score has stayed exactly the same: 91.2%
(27.36 out of 30) for the fourth edition and 91.2% (31.92 out of
35) in the fifth edition. This score reflects a strong performance
in the 5 new indicators added to the fifth edition.

Copyrights, Related Rights, and Limitations

11. Availability of frameworks that promote cooperative
action against online piracy: Against a background of EU
and national reforms, copyright was at the center of IP rights
development in 2016 in Germany. Notably, a landmark
decision by the Federal Court of Justice from November
2015 has extended the duty of care by ISPs to blocking
websites whose content is predominantly illegal. The court
reasoned that where a global assessment of the site reveals
that the lawful content is a negligible amount compared
with the unlawful content, the provider must take down the
site and have a further duty of care to prevent the repetition
of the specific clear infringement—the so-called indirect
liability concept of “Stoererhaftung.” However, this duty of
care comes with a caveat that makes its future application
difficult to predict; that is, that the rights holders have
exhausted other ways of pursuing infringers before resorting
to ISPs blocking the relevant content. In a previous decision
from 2015, the Hamburg Court of Appeal found YouTube
liable of this extended indirect liability because, unlike other
hosting providers, it offers a platform that makes third-party
content attractive for users. But another court, the Higher
Court of Munich, found that no damages can be claimed on
the basis of this indirect liability, and rejected the request by
rights holders against YouTube.

Trade Secrets and Market Access

24. Regulatory and administrative barriers to the
commercialization of IP assets: In the realm of technology
standardization, SEP licensing terms have come under
increased scrutiny in recent years from both EU courts and
regulators. For several years, European regulators have
engaged in different efforts to coordinate and harmonize
the standardization process, including in relation to setting
licensing terms. Courts have also weighed in; in one recent
landmark case, the European Court of Justice’s opinion
in Huawei v. ZTE detailed procedural aspects of FRAND
negotiations in the EU. According to these guidelines,
SEP holders seeking an injunction should, among other
elements, present the implementer with a written offer on
FRAND terms that specifies all relevant terms including the
royalty. However, the court’s involvement to date has not
extended to how to determine royalty rates.

[ 52 www.uschamber.com/ipindex ]
HUNGARY Rank: 13/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.61
20 25.39
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
Hungary Median Regional
Hungary Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Strong and sophisticated IP system conferred through EU 7 Challenging enforcement environment—particularly with regard to
membership online and digital content
3 Sector-specific IP rights in place such as regulatory data protection 7 One of the highest levels of video game piracy in the world
and patent term restoration
7 High level of physical counterfeiting
7 Plain packaging for tobacco products introduced in 2016

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 0.75 20. Industrial design term of protection 1
3. Patentability of CIIs 0.75 21. Exclusive rights, industrial design rights 0.75
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.64
9. Term of protection 0.63 26. Software piracy rates 0.62
10. Exclusive rights 0.5 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.5
12. Limitations and exceptions 0.75 29. Criminal standards 0.5
13. Digital rights management 0.5 30. Effective border measures 1
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 0 33. Singapore Treaty on the Law of Trademarks 0.5
17. Protection of well-known marks 0.5 34. Patent Law Treaty 1
18. Exclusive rights 0.75 35. Post-TRIPS FTA 1
TOTAL: 25.39

[ www.uschamber.com/ipindex 53 ]
Spotlight on the National IP Environment

Copyrights, Related Rights, and Limitations 19. Availability of frameworks that promote cooperative
action against the online sale of counterfeit goods:
10. Legal measures that provide necessary exclusive rights
Physical counterfeiting and the availability of counterfeit
preventing infringement of copyrights and related rights
goods is a major challenge in Hungary, particularly the
(including Web hosting, streaming, and linking); 11.
availability of counterfeit medicines. Since January 2015,
Availability of frameworks that promote cooperative
websites that sell fake or prohibited medicines can be taken
action against online piracy; and 13. Digital rights
down for 90 days by order of the National Institute for
management (DRM) legislation: Protecting copyrighted
Quality and Organizational Development in Healthcare and
material—especially from online piracy—has long been a
Medicines, in line with paragraph 20/A of the Hungarian
challenge for rights holders in Hungary. Article 77 of the
Act 95 of 2005 on Medicinal Products for Human Use. The
revised Criminal Code states that criminal material disclosed
website owner has 24 hours to comply; noncompliance
through an electronic communications network shall be
results in a fine. The institute can display the name of the
rendered irreversibly inaccessible. Although this article does
infringing websites for up to 90 days and can report the
apply to cases of IP rights infringement, relatively limited
infringement to the authorities.
case law exists. The Hungarian E-Commerce Act provides
a clear and timely notification and takedown procedure,
whereby ISPs have 12 hours to remove the allegedly Enforcement
infringing content, as well as safe harbor mechanisms for 27. Civil and procedural remedies; 28. Preestablished
ISPs. Although the original formulation refers mostly to damages and/or mechanisms for determining the
copyright infringement, ISP liability was recently under the amount of damages generated by infringement; and 29.
spotlight in Hungary, mainly with regard to defamatory and Criminal standards including minimum imprisonment and
hateful content. Surveys and academic research suggest minimum fines: The protection available to IP rights holders
that Hungary has one of the highest rates of copyright in Hungary is often hindered by gaps in enforcement and
infringement of all EU member states. For example, even availability of key remedies. The Criminal Code provides
though the Copyright Act sanctions all major aspects of for prison terms of up to 10 years for infringements with
TPM circumvention and DRM alteration (Articles 95 and a particularly substantial financial loss, but no fines. Also,
96), academic research of video game piracy suggests that no punitive damages are in place and local legal analysis
Hungary constitutes a disproportionate share of global suggests that high amounts of damages are difficult to
video game piracy. According to a study on Bit Torrent obtain and their calculation highly unpredictable. Indeed,
conducted by academics from Aalborg University, the despite the existence of these relatively strong criminal
University of Waterloo, and Copenhagen Business School, penalties, Hungary continues to suffer from a lack of
Hungary was a top-5 country with the highest video game deterrent sentences. According to the latest edition of a
piracy user rate as a percentage of its population. National Board Against Counterfeiting yearly survey, low
prices and a lack of deterrent effect from penalties continue
Trademarks, Related Rights, and Limitations to fuel consumers’ decision to buy counterfeits. About a
third of young people surveyed admitted having done so
16. Discrimination/restrictions on the use of brands in
at least once in the previous year. The negative impact
the packaging of different products: In 2016, Hungary
on the Hungarian economy is significant. As reported by
amended Government Decree 39/2013 (of 14 February
the European Union Intellectual Property Office (EUIPO)
2013) on the Manufacture, Placement on the Market, and
Observatory, Hungary is, after Romania, the EU economy
Control of Tobacco Products, and from May 2016 has
that lost the most from sales of counterfeit handbags and
introduced plain and brand-neutral packaging for tobacco
luggage (28.5% out of total national sales); the 3rd most
products. The amended decree applies immediately to
for drugs and jewelry (13.1% and 16.9% of total sales,
any new products introduced onto the Hungarian market.
respectively); and the 4th most for toys and games (19% of
Products already on the market have received a reprieve
total sales).
until 2019. The introduction of this measure significantly
restricts the use of brands, trademarks, and trade dress on
retail packaging—undermining the benefits of trademarks
to businesses and consumers alike—and sets a negative
precedent for IP policy. The passage and implementation of
this legislation has resulted in Hungary receiving a score of 0
on this indicator.

[ 54 www.uschamber.com/ipindex ]
INDIA Rank: 43/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.64
15.39
15
10 8.75
Enforcement Trademarks
5
0
India Median Regional
India Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 New National Intellectual Property Rights Policy recognizes several 7 Overall, National Intellectual Property Rights Policy does not
key gaps in India, including the need for stronger enforcement of address fundamental weaknesses in India’s IP framework
existing IP rights, the need for stronger administrative capacities at
7 Limited framework for protection of life sciences IP
India’s IP offices, and the need for a trade secrets law
7 Patentability requirements outside international standards
7 Lengthy pre-grant opposition proceedings in place
7 2016 High Court ruling on copyright infringement in the University
of Delhi copy-shop case continues to weaken the enforcement
environment for rights holders
7 Previously used compulsory licensing for commercial and
nonemergency situations
7 Limited participation in international IP treaties

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.25
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.26
9. Term of protection 0.47 26. Software piracy rates 0.42
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0.25 28. Pre-established damages 0
12. Limitations and exceptions 0 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0.25
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 8.75

[ www.uschamber.com/ipindex 55 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Copyrights, Related Rights, and Limitations
India’s overall score has increased marginally from 24% (7.05 12. Scope of limitations and exceptions to copyrights and
out of 30) in the fourth edition to 25% (8.75 out of 35) in the related rights: On September 16, 2016, the High Court of
fifth edition. This change in score reflects a relatively mixed Delhi issued a final judgment in the long-running court case
performance in the 5 new indicators added in the fifth edition. between some of the world’s leading academic publishers
(including both Oxford and Cambridge University presses
and Taylor & Francis) and the University of Delhi and a
General Comments
local photocopy shop. The case was first launched in 2012
In May 2016, the Ministry of Commerce and Industry and the with the publishers suing both the University of Delhi and
Department of Industrial Policy and Promotion released the the copy shop for infringement and enabling copyright
long-awaited National Intellectual Property Rights Policy. This infringement. The rights holders argued that the university
document outlines the strategic direction and policy goals of the had not only allowed the operation of the copy shop on
Indian government with respect to the protection of IP for the its premises but outsourced the production of university
foreseeable future. Of note is that the Policy addresses a number course materials to it. In so doing, it had gone beyond
of important gaps in India’s national IP environment, including the any reasonable interpretation of educational exceptions to
need for stronger enforcement of existing IP rights by building copyright. The September 2016 judgment dismissed the
new state-level IP cells and investing more resources in existing lawsuit, with the judge stating: “Copyright, especially in
enforcement agencies; strengthening administrative capacities literary works, is thus not an inevitable, divine, or natural
at India’s IP offices including by reducing processing times for right that confers on authors the absolute ownership of
patent and trademark applications; and the need to introduce a their creations. It is designed rather to stimulate activity and
legislative framework for the protection of trade secrets. And while progress in the arts for the intellectual enrichment of the
comprehensive reform and execution in these areas would mark public.” The judgment did not only not find anything wrong
a notable improvement to India’s national IP environment, the with the university providing a photocopied master-copy of
Policy dismissed the need for more extensive legislative reform. course texts for students to photocopy themselves in the
Specifically, it did not address the challenges and uncertainties university library, but it also did not object to the obvious
rights holders face when it comes to protecting their patent rights commercial gain derived from the copy shop by providing
(particularly in the biopharmaceutical sector), modernizing existing this service to university students and staff. The judgment
copyright laws, or introducing international best practices and underlines the challenging environment rights holders and
new sector-specific IP rights such as regulatory data protection for creators face in protecting their IP not only in court but
submitted biopharmaceutical test data. more broadly and across all major forms of content in India.
Only a few days prior to the judgment and in an unrelated
Patents, Related Rights, and Limitations matter, Bollywood actor Rajeev Khandelwal commented
on the impact piracy is having in India and specifically on a
8. Patent opposition: Section 25 of the Patents Act outlines
prerelease leak and pirating of a number of Indian feature
the procedures and requirements for initiating opposition
films. He said: “Piracy means you are killing an industry. …
proceedings. The law provides for both pre- and post-grant
If this continues, filmmakers will fear investing money in a
oppositions. The procedures are similar; the key difference
film, people will start losing jobs, and the industry will
is that pre-grant opposition can be initiated by “any person”
fade away.”
whereas post-grant opposition must be initiated by an
interested party. The pre-grant opposition mechanism in
India has long been criticized for adding significantly to
the already lengthy patent prosecution timelines in India.
In particular, local legal opinion suggests that pre-grant
opposition and the right of the applicant to, for example,
request a hearing, causes undue delays. The most recent
2016 statistics suggest that 98% of patents granted in India
in 2015 were for applications over 5 years old. In one case, it
took 19 years to prosecute and grant a patent.

[ 56 www.uschamber.com/ipindex ]
INDONESIA Rank: 39/45
Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.64
15.39
15
9.64
Enforcement 10
Trademarks
5
0
Indonesia Median Regional
Indonesia
Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 New Trademark and Geographic Indications Law passed that 7 New patent law fundamentally weakens Indonesia’s national IP
strengthens existing criminal sanctions for trademark infringement environment
7 New patent law contains heightened efficacy requirement targeting
biopharmaceuticals
7 Parallel importation has been introduced in new patent law
targeting biopharmaceuticals
7 New patent law also includes an ill-defined requirement for technology
transfer of all patented technologies and processes in Indonesia
7 Limited framework for protection of life sciences IP
7 History of using compulsory licensing for commercial and
nonemergency situations
7 Challenging copyright environment with high levels of piracy
7 Limited participation in international IP treaties

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations
1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.31
9. Term of protection 0.52 26. Software piracy rates 0.16
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0.25
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 9.64

[ www.uschamber.com/ipindex 57 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trademarks, Related Rights, and Limitations
Indonesia’s overall score has decreased from 28.6% (8.59 out 17. Ability of trademark owners to protect their trademarks:
of 30) in the fourth edition to 27.5% (9.64 out of 35) in the fifth requisites for protection; and 18. Legal measures
edition. This drop in score reflects a relatively weak performance available that provide necessary exclusive rights to
in the 5 new indicators added in the fifth edition and a redress unauthorized uses of trademarks: 2016 saw a
deterioration of the environment as it relates to Category 1: number of important developments with respect to the
Patents, Related Rights, and Limitations and the new patent law. protection of trademarks in Indonesia. In October 2016, a
new Trademark and Geographic Indications law was passed.
Although it primarily focuses on expanding the realm of
Patents, Related Rights, and Limitations
protection for trademarks to nontraditional trademarks
1. Patent term of protection; 2. Patentability (including sound holograms and 3-D marks) and improving
requirements; and 3. Patentability of computer- the speed and administration of trademark applications, the
implemented inventions (CIIs): In 2016, the Indonesian law also strengthened existing enforcement mechanisms.
Parliament (People’s Representative Council) finally passed Specifically, Article 100 strengthens existing criminal
a new, wide-ranging patent law (Law 13 2016). Although sanctions against trademark infringement. Fines have
it aims to strengthen Indonesia’s innovation infrastructure been increased to a maximum of IDR2–5 billion (about
and to encourage more high-tech economic development USD150,000–380,000) and prison sentences to between 4
through the creation and use of new technologies, and 10 years. The higher fines and sentences are applicable
overall the law does not improve what was already a only in cases in which the infringing goods have led to
challenging patenting environment. First, Article 4 inserts public health issues, death, or environmental damage. This
a new heightened efficacy requirement that targets is a positive development, given the relatively high level of
biopharmaceutical products and outlaws second use claims. counterfeit medicines in Indonesia. Unfortunately, a number
The new efficacy standard is not comprehensively defined, of negative developments increased the already high level
with the sole example cited being for antibiotics. In a of uncertainty about the protection of well-known marks.
further effort to target biopharmaceutical innovation, Article Two decisions by the Supreme Court of Indonesia entrench
167 allows for parallel importation of follow-on products the difficulties that rights holders face in protecting their
under patent protection in Indonesia but approved for registered and well-known marks from rival and potential
consumption in other markets. The law explains that this bad faith registrations and subsequent use. In September
importation is to target the cost of medicines, particularly 2016, the court rejected the claims of designer Pierre Cardin
where prices in Indonesia are judged to be higher than that a local company was infringing its trademark. The local
the “international market.” No details are provided as to company had filed a similar trademark in the late 1970s
what constitutes a “higher price” or the “international incorporating the Pierre Cardin name, whereas the French
market.” This law adds significant uncertainty and raises designer had only registered its trademark in Indonesia
serious questions about the extent basic patent protection in 2009. In a different case, the Supreme Court held that
is afforded to biopharmaceutical products in Indonesia. Swedish furniture giant IKEA’s locally registered trademarks
More broadly, Article 20 of the law mandates that all patent were not valid as they had not been used for a period of 3
rights holders “make” the patented product or process years. The challenge of nonuse came from a local furniture
within Indonesia. Subsection (2) of this article states that company that requested to file its own trademark acronym
this production should support Indonesia’s industrial “IKEA,” which is short for Intan Khatulistiwa Esa Abadi.
and development policies, specifically the “transfer of
technology, investment absorption and/or employment.”
No further details are provided about the meaning or
legal definition of “make” in this context. As discussed in
previous editions of the Index, Indonesia has had in place
a number of localization requirements that target certain
industrial sectors (most notably the biopharmaceutical
sector), but it would seem that this new requirement has
broadened this mandatory localization to any patented
technology. In one notable positive development, the
new patent law does allow a limited form of patenting of
CIIs. The explanation to Article 4(3) seems to suggest that
patents will be allowed when they fulfill a technical effect or
problem-solving requirement.

[ 58 www.uschamber.com/ipindex ]
ISRAEL Rank: 16/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25 22.27

20
15.39
15 13.73

Enforcement 10
Trademarks
5
0
Israel Median Regional
Israel Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Proposed changes to copyright law would fill an existing gap in 7 Current pre-grant patent opposition proceedings are characterized
Israel’s copyright framework by long delays to patent prosecution
3 Ministry of Justice consultation on reforming patent opposition 7 Unclear the extent to which current RDP applies to large-molecule
proceedings would have a positive effect on what is a products
long-standing challenge to inventors
7 Online copyright framework lacking—limited notice and takedown
3 Life sciences IP rights reform efforts have considerably and no DRM laws
strengthened Israel’s IP environment
7 Limited participation in international IP treaties
3 Strong protection for CIIs
3 Ex officio customs authority and strong customs agency

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 1 20. Industrial design term of protection 0.4
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 0.3 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.73
9. Term of protection 0.63 26. Software piracy rates 0.71
10. Exclusive rights 0.5 27. Civil and procedural remedies 0.75
11. Cooperative action against online piracy 0.25 28. Pre-established damages 0.75
12. Limitations and exceptions 1 29. Criminal standards 0.75
13. Digital rights management 0 30. Effective border measures 0.75
14. Government use of licensed software 1 31. Transparency and public reporting by customs 0.5
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0.5
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.75 34. Patent Law Treaty 0.5
18. Exclusive rights 0.75 35. Post-TRIPS FTA 0
TOTAL: 22.27

[ www.uschamber.com/ipindex 59 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores to obtain a court order for restricting access to a website
with pirated content, and to reveal the identity of the
Israel’s overall score has decreased from 66% (20.06 out of 30)
violator. In addition, making pirated works publicly available
in the fourth edition to 64% (22.27 out of 35) in the fifth edition.
with the intention of profit-making activities would be
This drop in score reflects a relatively weak performance in the 5
regarded as a criminal activity. Although not entirely in
new indicators added in the fifth edition including patent-related
line with international best practices—given the millions
opposition proceedings.
of infringements taking place online every day, requiring
a court order for the disabling of access to a website with
Patents, Related Rights, and Limitations pirated content would impose a severe practical restriction
8. Patent opposition: Israeli patent law provides for a pre- on the availability of this mechanism to rights holders—
grant form of opposition to pending patent applications. these legislative developments would nevertheless be
The examination of a patent application’s eligibility for welcome and would increase Israel’s score on this indicator.
registration is conducted by the Israeli Patent Office within
a time frame of 18 months from the filing date, upon which
the application is published online for public scrutiny.
Once published, a period of 3 months is granted during
which third parties are permitted to file an opposition
to the patent application. Upon filing of a notification
of opposition, a period of 13 months is granted to the
opposing party to submit the causes, arguments, and
supporting evidence for the opposition, and for responses
by both parties. Thus, the examination of a patent
application can be extended by an additional 16 months,
not including the process of reexamination and/or judicial
hearings. Regardless of the merits of any opposition filing,
these generous timelines add a significant burden and
delay to the patent prosecution process in Israel. In a
positive move, the Ministry of Justice in fall 2016 published
a public call for comments and suggestions regarding
its intention to review the existing pre-grant system.
This marks a potential shift and recognition by Israeli
policymakers of the costs the pre-grant system imposes on
inventors and Israeli consumers.

Copyrights, Related Rights, and Limitations

10. Legal measures that provide necessary exclusive rights
preventing infringement of copyrights and related rights
(including Web hosting, streaming, and linking); and 11.
Availability of frameworks that promote cooperative
action against online piracy: The protection of copyright
online has long been a challenge for rights holders in
Israel. As noted in previous editions of the Index, Israel is
one of the few high-income OECD economies in which no
specific legal framework is in place with regard to notice
and takedown mechanisms or other administrative or
regulatory mechanisms to effectively enforce copyright
and related rights in the online environment. In 2016,
the Ministry of Justice made public new draft legislation
amending the Copyright Act and Ordinance, which would
address many of these gaps and strengthen copyright
protection in Israel. The proposed amendment includes
the expansion of indirect violation of copyrights to make
pirated works publicly available online, to make it possible

[ 60 www.uschamber.com/ipindex ]
ITALY Rank: 10/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.73 27.61
20
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
Italy Median Regional
Italy Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Fairly advanced national IP framework 7 Remaining gaps in copyright legislation, including uncertainties
over copyright exceptions
3 Major life sciences IP rights in place
7 Relatively high level of physical counterfeiting and online piracy in
3 Established doctrine of trade secret, trademark, and design
comparison with other high-income economies
protection, including well-known marks
7 Delays and uneven level of expertise vis-à-vis IP rights within the
3 Rise in activity and effectiveness of administrative and judicial
judicial system
efforts in copyright enforcement

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 0.75 20. Industrial design term of protection 1
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.75
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.52
9. Term of protection 0.66 26. Software piracy rates 0.55
10. Exclusive rights 0.5 27. Civil and procedural remedies 0.75
11. Cooperative action against online piracy 0.75 28. Pre-established damages 0.5
12. Limitations and exceptions 0.5 29. Criminal standards 0.5
13. Digital rights management 0.5 30. Effective border measures 1
14. Government use of licensed software 0.75 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 0.75 34. Patent Law Treaty 0.5
18. Exclusive rights 0.75 35. Post-TRIPS FTA 1
TOTAL: 27.73

[ www.uschamber.com/ipindex 61 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trade Secrets and Market Access
Italy’s overall score has increased from 76% of the total possible 22. Protection of trade secrets: Italy’s Industrial Property
score (with a score of 22.69 out of 30) in the fourth edition to Code grants explicit legal protection for trade secrets in
79% (27.73 out of 35) in the fifth edition. This increase in score Articles 98 and 99, which provide for specific definitions
reflects positive results from the implementation of a new notice and remedies, respectively. Also, criminal law can be
and takedown system captured by indicator 11 and relatively invoked for disclosure of trade secrets in bad faith. The
high scores in the new indicators, particularly due to alignment relatively high standard of protection for trade secrets was
to EU standards and practices in IP. However, weaknesses remain confirmed in 2016 in the Mazar case, in which the Court
in comparison with similar developed economies in key areas, of Milan established the need to strictly comply with trade
such as IP enforcement. secret law during mergers. Protection is further enhanced
under the new EU Trade Secret Directive, resulting in a rise
in score for this indicator by 0.25. In addition to setting
Copyrights, Related Rights, and Limitations
common minimum standards and a common trade secret
11. Availability of frameworks that promote cooperative definition, the directive introduces for the first time in most
action against online piracy: Regulation of the Italian member states, including Italy, secondary liability claims and
Communications Regulatory Authority (AGCOM) on protection of confidentiality during legal procedures.
copyright protection and electronic communication
networks, in force since 2014, empowers AGCOM to receive 24. Regulatory and administrative barriers to the
complaints from rights holders and order ISPs to remove or commercialization of IP assets: In the realm of technology
prevent access to illegally published content. Since 2014, standardization, SEP licensing terms have come under
the new system has seen growing levels of participation increased scrutiny in recent years from both EU courts and
and reinforcement in judicial rulings. As of October 2016, regulators. For several years, European regulators have
AGCOM had received more than 620 complaints, with a engaged in different efforts to coordinate and harmonize
substantial share (about 150) involving voluntary takedown the standardization process, including in relation to setting
by ISPs; that is, in response to AGCOM’s relay of rights licensing terms. Courts have also weighed in; in one recent
holder notice. On this basis, Italy’s score for this indicator landmark case, the European Court of Justice’s opinion
increases by 0.25. Nevertheless, the legislation still does in Huawei v. ZTE detailed procedural aspects of FRAND
not mandate a strictly self-regulated action, with AGCOM negotiations in the EU. According to these guidelines,
intermediation required to enforce ISP liability. SEP holders seeking an injunction should, among other
elements, present the implementer with a written offer on
Trademarks, Related Rights, and Limitations FRAND terms that specifies all relevant terms including the
royalty. The court’s involvement, however, has not extended
18. Legal measures available that provide necessary
to the process for determining royalty rates.
exclusive rights to redress unauthorized uses of
trademarks; and 30. Effective border measures: EU
Regulation 2015/2424 formally extends the scope of
trademark enforcement activities to in-transit custom
actions and preparatory acts such as the production of fake
labels. These measures are particularly relevant for Italy,
whose brands are among the most affected worldwide
by counterfeit trade according to a recent OECD-EUIPO
joint report. Furthermore, in implementing the new EU
framework, Italy’s Patent and Trademark Office will be
required to introduce administrative proceedings for the
invalidation and revocation of trademarks (by 2023), filling in
one important gap in the existing trademark framework.

[ 62 www.uschamber.com/ipindex ]
JAPAN Rank: 4/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights 31.29
International Treaties 30 30
20
10 25
20 17.64
15.39
15
Enforcement 10
Trademarks
5
0
Japan Median Regional
Japan Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Japan has signed and ratified the TPP 7 Limited notice and takedown mechanism in place
3 As part of TPP ratification, Japan has signed and acceded to all
international IP treaties included in the Index
3 Strong, sophisticated national IP environment in place with
relevant IP rights and protection available for all major IP
rights categories

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 1 20. Industrial design term of protection 0.8
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 1
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 0.8 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.84
9. Term of protection 0.53 26. Software piracy rates 0.82
10. Exclusive rights 1 27. Civil and procedural remedies 0.75
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.75
12. Limitations and exceptions 0.75 29. Criminal standards 1
13. Digital rights management 0.75 30. Effective border measures 1
14. Government use of licensed software 1 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 1
18. Exclusive rights 1 35. Post-TRIPS FTA 1
TOTAL: 31.29

[ www.uschamber.com/ipindex 63 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores monitoring that any proprietary software used should be
licensed software. This is most notable, for example, in the
Japan’s overall score has increased significantly from 78% (23.34
prefecture of Ishikawa, which since the late 2000s has taken
out of 30) in the fourth edition to 89% (31.29 out of 35) in the
a comprehensive approach to the use and monitoring of
fifth edition. This increase in score reflects a strong performance
county government software.
in the 5 new indicators added in the fifth edition as well as the
accession to all international IP treaties included in the Index.
Membership and Ratification of International
Treaties
Copyrights, Related Rights, and Limitations
Since it was first included in the second edition of the Index,
9. Copyright (and related rights) term of protection; 10.
Japan has stood out as one of the few (with Canada) developed
Legal measures that provide necessary exclusive rights
high-income economies that scored low in its participation in
preventing infringement of copyrights and related
and ratification of international treaties. This fundamentally
rights (including Web hosting, streaming, and linking);
changed in 2016 when Japan signed and acceded to both
and 28. Preestablished damages and/or mechanisms
the Patent Law Treaty and the Singapore Treaty on the Law of
for determining the amount of damages generated by
Trademarks. Furthermore, in November 2016 the lower house of
infringement: Reports suggest that, as part of Japan’s
the Japanese Diet voted to ratify the TPP treaty. The accession
commitments under the TPP, the Agency for Cultural Affairs
and ratification, respectively, by Japan to these treaties has
and Japanese Cabinet are considering amending Japanese
resulted in a significant increase in Japan’s score in this category.
copyright law in 3 major areas. First, under the proposals,
the copyright term of protection (currently 50 years for
orphan works) would be increased to 70 years. Second,
the government is considering introducing preestablished
or statutory damages for infringement. In the past, rights
holders have pointed to the relatively low damages
awarded for most forms of IP infringement and especially
for copyright. Last, the agency is also reportedly considering
strengthening existing police enforcement powers. Once
passed and implemented, these reforms would raise Japan’s
already high scores and further strengthen its position as a
leader in the Index.

14. Clear implementation of policies and guidelines requiring

that any proprietary software used on government ICT
systems should be licensed software: The government of
Japan has a number of policies and procedures in place that
relate to all aspects of government software procurement,
management, and development. The regulatory framework
provided by the Ministry of Economy, Trade, and Industry;
Information-Technology Promotion Agency; Ministry of
Internal Affairs and Communications; and National Center
of Incident Readiness and Strategy for Cybersecurity is both
comprehensive and detailed. These range from the 2007
“Basic Guidelines of the Government Procurement of the
Information System” and “Technical Reference Model for
Information System Procurement (TRM)” for government
agencies to the latest 2015 “Software Management
Guidelines” for all Japanese private and public sector
entities. While the availability of evidence of consistent
and national audits of software use in central government
remains limited, there is a body of evidence that—even
at the level of prefectures (county government)—a
growing number of prefectures are both requiring and

[ 64 www.uschamber.com/ipindex ]
KENYA Rank: 31/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.39
13.95 13.73
15

Enforcement 10
Trademarks
5
0
Kenya Median Regional
Kenya Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 IP leader among African economies; for instance, in new online 7 Weak and backlogged judicial system with notable deficiencies in
copyright registration system criminal enforcement
3 Basic IP framework in place, including a number of sector-specific 7 Important gaps in copyright protection, particularly in the digital
rights space
3 Dedicated IP bodies and enforcement agencies, with demonstrated 7 Scope of trademark protection limited in legislation and in practice
efforts to address IP infringement (although fragmentation occurs
7 Legislative and resource barriers to border enforcement
and much more action is needed)
3 Improving business environment with reduction in IP-related
market barriers

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.5
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0.75 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.33
9. Term of protection 0.53 26. Software piracy rates 0.24
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0
12. Limitations and exceptions 0.5 29. Criminal standards 0.25
13. Digital rights management 0.5 30. Effective border measures 0
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0.25
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0.5
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0.5
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0.5
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 13.95

[ www.uschamber.com/ipindex 65 ]
Spotlight on the National IP Environment

Patents, Related Rights, and Limitations Enforcement

2. Patentability requirements: Generally speaking, Kenya’s 27. Civil and procedural remedies; 29. Criminal standards
IP Act provides fairly standard criteria for, and exclusions including minimum imprisonment and minimum
from, patentability. Patents may be granted by both the fines; and 30. Effective border measures: Remedies
Kenyan Industrial Property Institute (KIPI) and the African and penalties are available for major types of IP rights;
Regional IP Organization (ARIPO), of which Kenya is a however, overall they are not considered to be an adequate
contracting member, and both agencies conduct substantive deterrent. In general, although the groundwork for stronger
examinations. The ARIPO system is used more heavily by IP enforcement is present, actual enforcement is weak,
international applicants. According to KIPI statistics, despite with enforcement bodies lacking the necessary expertise
significant growth in the use of the national system, over and resources. Nevertheless, cases before Kenya’s four
the past 15 years patenting activity has remained relatively specialized IP Tribunals tend to proceed much faster than in
low. Moreover, local legal analysis suggests that although regular courts. However, significant barriers to enforcement
the examination framework is relatively strong, in practice against counterfeits exist. Despite the introduction of
resources and expertise for patent review are not readily the Anti-Counterfeiting Agency in 2008, counterfeiting
available. As a result, innovators continue to face significant remains a major problem with little real recourse available.
delays and barriers to patenting. KIPI data indicate the Counterfeiting results in estimated losses in tax revenues
average time to grant is 3.5 to 4.5 years. In addition, a of at least USD80 million, capital flight, and public safety
recent survey from the Scinnovent Centre reported that risks, particularly in pharmaceuticals (an estimated 30% of
about 45% of innovators found it hard to obtain patent and medicines in Kenya are fake). Moreover, with significant
trademark protection in Kenya. gaps in border enforcement, Kenya is a major point of entry
into East Africa for counterfeit goods.
Copyrights, Related Rights, and Limitations
10. Legal measures that provide necessary exclusive rights
preventing infringement of copyrights and related rights
(including Web hosting, streaming, and linking); and 11.
Availability of frameworks that promote cooperative
action against online piracy: Kenya’s Copyright Act
provides for basic exclusive rights to redress copyright
infringement, although these rights are not specific to the
digital or online sphere. Proposed copyright amendments
within wider ICT Act amendments would introduce a semi-
notice and takedown system; however, the proposed system
is out of sync with international best practices, relying on
involvement from infringing parties and not adequately
outlining ISPs’ responsibilities. In practice, ISPs typically do
not face liability, even when there is awareness of blatantly
infringing content, and digital piracy is very high. The
Copyright Board (KECOBO) estimates that 98% of music
and one in three books sold in Kenya are pirated. Software
piracy is also very high, despite dedicated government
efforts to encourage the legal use of software.

14. Clear implementation of policies and guidelines requiring

that any proprietary software used on government ICT
systems should be licensed software: The use of licensed
software is required among government agencies in the
Ministry of ICT’s Policy on Software Licensing Regime as
well as in several agency-specific policies. These standards
are reiterated in a draft policy on information security
considered in 2016. Nevertheless, according to KECOBO
application is mixed, with state-owned enterprises in
particular still displaying high rates of illegal software use.

[ 66 www.uschamber.com/ipindex ]
MALAYSIA Rank: 19/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.19 17.64
15.39
15

Enforcement 10
Trademarks
5
0
Malaysia Median Regional
Malaysia Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Signatory to the TPP 7 Despite intensifying efforts, still high levels of counterfeiting,
software, and music piracy
3 Strong package of copyright reforms passed in 2012—broadly in
line with international best practices 7 New products not offered de facto RDP full term of protection
3 Five-year RDP term in place 7 Patent term restoration not allowed
7 Ex officio powers not used by customs officials

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 1 20. Industrial design term of protection 1
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 1
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.44
9. Term of protection 0.53 26. Software piracy rates 0.47
10. Exclusive rights 0.75 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0.75 28. Pre-established damages 0.5
12. Limitations and exceptions 0.5 29. Criminal standards 0.5
13. Digital rights management 0.75 30. Effective border measures 0.25
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0.5
TOTAL: 17.19

[ www.uschamber.com/ipindex 67 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores result of the marketing approval process.” The introduction
of a patent restoration period of 5 years would be in line
Malaysia’s overall score has stayed virtually the same, decreasing
with current international best practices and the benchmark
slightly from 49.2% (14.78 out of 30) in the fourth edition to
used in the Index. As for regulatory data protection,
49.1% (17.19 out of 35) in the fifth edition. This score reflects
since 2011, Malaysia has had in place a 5-year term of
a mixed performance in the 5 new indicators added in the
protection. However, as noted in past editions, the full
fifth edition.
term of protection has not been made available. Instead,
the term of protection has begun whenever a product
Patents, Related Rights, and Limitations was introduced globally. Article 18.5 of the TPP provides
4. Pharmaceutical-related patent enforcement and a 5-year term of RDP for new chemical entities and an
resolution mechanism; 6. Patent term restoration for 8-year term for biologics, with the term of protection to
pharmaceutical products; 7. Regulatory data protection begin from “the date of marketing approval of the new
term; 30. Effective border measures; and 35. At least pharmaceutical product in the territory of the Party.” Annex
one free trade agreement (FTA) with substantive 18C of the agreement defines the beginning of the term of
and/or specific IP provisions such as chapters on IP protection specifically for Malaysia: “For greater certainty,
and separate provisions on IP rights provided it was the periods of protection referred to … shall begin on the
signed after WTO/TRIPS membership: As one of 12 date of marketing approval of the pharmaceutical product in
signatory countries to the TPP Agreement, Malaysia is Malaysia.” Implementing the TPP treaty in full in these areas
currently ratifying the treaty and drafting implementing would significantly strengthen and fill many of the remaining
legislation. The TPP’s IP chapter is comprehensive and gaps in Malaysia’s national IP environment and specifically
touches on all major forms of IP rights. In September as it relates to the life sciences. It would also considerably
2016, Secretary General Datuk J. Jayasiri of the Ministry improve Malaysia’s score on the Index.
of International Trade and Industry commented on the
drafting of implementing TPP legislation. He stated that “18
laws” had been identified by the government as requiring
legislative amendments and that the government was
working on sending a package of legislation to Parliament
for approval. At the time of research, no draft legislation had
been publicly released by the government or was currently
being reviewed by the Parliament of Malaysia. As has been
noted over the past 4 editions of the Index, Malaysia has
significantly strengthened its national IP environment since
2011. In particular, copyright reforms and continued efforts
in the realm of enforcement of IP rights have resulted in a
continuous, year-on-year improvement to Malaysia’s score
on the Index. Malaysia is the highest-ranked middle-income
economy included in the Index. Implementation of the TPP
and corresponding legislative changes to Malaysia’s national
laws would fill many of the remaining gaps in its national
IP environment. This is particularly the case for patents
and biopharmaceutical IP rights. For example, Malaysia
does not currently have in place a pharmaceutical-related
patent enforcement mechanism. Article 18.53 of the TPP
provides the choice between two clear mechanisms of
either premarketing notification and/or linkage between the
market approval of a follow-on biopharmaceutical product
and the exclusivity status of the reference product. Similarly,
due to administrative delays, Malaysia does not currently
allow for patent term restoration for biopharmaceutical
products. Article 18.48 of the TPP states that contracting
parties to the treaty “shall make available an adjustment
of the patent term to compensate the patent owner for
unreasonable curtailment of the effective patent term as a

[ 68 www.uschamber.com/ipindex ]
MEXICO Rank: 20/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 16.87
15.39
15 13.79

Enforcement 10
Trademarks
5
0
Mexico Median Regional
Mexico Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Standard exclusive rights for patents and trademarks 7 Partial and ambiguous protection of IP in certain aspects for life
sciences (including application of RDP to biologics and patent
3 Efforts to ease ability to commercialize IP assets and develop
enforcement)
public-private partnerships, particularly for public research
organizations and universities 7 Lack of sufficient framework to promote action against online piracy
3 Dedicated endeavor to streamline IP review process and criminal 7 Significant gaps in application of remedies, such as severe delays
justice system and harmonize with international standards and difficulty securing adequate damages
3 Signatory to certain international IP treaties and to the TPP 7 Inadequate border measures for trade-related infringement of
IP rights

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0.25 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.5
7. Regulatory data protection term 0.25 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0.5 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.5
9. Term of protection 0.79 26. Software piracy rates 0.48
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0 28. Pre-established damages 1
12. Limitations and exceptions 0.5 29. Criminal standards 0.75
13. Digital rights management 0 30. Effective border measures 0
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0.25
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0.5
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0.5
TOTAL: 16.87

[ www.uschamber.com/ipindex 69 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores This new unit employs five prosecutors and focuses on
investigating and prosecuting Internet-related IP crimes.
Mexico’s overall score has increased slightly from 46% of the
total possible score (with a score of 13.83 out of 30) in the fourth
edition to 48% (16.87 out of 35) in the fifth edition. This change Membership and Ratification of International
in score is mainly a result of Mexico’s performance in the 5 new Treaties
indicators added in the fifth edition. In addition, Mexico’s score 35. At least one free trade agreement (FTA) with
for indicator 18 rises by 0.25 due to the introduction of a new substantive and/or specific IP provisions such as
platform for trademark opposition. Mexico also receives 0.5 chapters on IP and separate provisions on IP rights
under indicator 35 as a signatory of the TPP agreement. The provided it was signed after WTO/TRIPS membership:
accession by Mexico to the TPP and adoption of the IP standards The TPP was signed on February 4, 2016, by the 12
enshrined within the agreement would further strengthen contracting members and is expected to create a more level
Mexico’s national IP environment, particularly with regard to the playing field in IP and reflect 21st century realities. Mexico
life sciences and online copyright infringement. has reportedly committed to ratifying the agreement in
2016. TPP obligations will affect various indicators across the
Copyrights, Related Rights, and Limitations Index that are currently unavailable or inadequate in Mexico,
including introducing patent term extension, remedies
10. Legal measures that provide necessary exclusive rights
against circumvention of TPMs, protection for unregistered
preventing infringement of copyrights and related
well-known marks, and enhanced access to damage awards.
rights (including Web hosting, streaming, and linking):
Importantly, the current lack of clarity about the availability
While 2015 amendments that would introduce a notice
of RDP for biologics will conflict with Mexico’s commitments
and takedown system and penalties for online infringement
under the TPP, once ratified. The Federal Committee
were shelved, some steps were taken in 2016 to enhance
for Protection from Sanitary Risks (COFEPRIS) published
prosecution for online piracy. For example, a copyright
guidelines in June 2012 that provide protection against the
amendment closes one existing loophole by adding
use of undisclosed test data by any person for the purpose
the illegal reproduction and distribution of movies and
of marketing approval for a maximum of 5 years, but
audiovisual materials to the list of trade-related copyright
Mexican authorities reportedly indicated that RDP would not
infringements.
be considered as applicable to biologics.

Trademarks, Related Rights, and Limitations

18. Legal measures available that provide necessary
exclusive rights to redress unauthorized uses of
trademarks: In 2016, Mexico introduced a trademark
opposition mechanism, filling in one gap in the existing
trademark framework. The mechanism is aimed at providing
a streamlined platform for protecting against confusingly
similar trademarks, although in some respects it is closer to
a third-party observation system than an opposition system.

Enforcement
29. Criminal standards including minimum imprisonment and
minimum fines: Under a constitutional reform passed in
2008 and was set to be implemented during 2016, Mexico
committed to overhaul its criminal justice system by moving
from a “mixed inquisitorial” to an “adversarial” model with
open and oral trials, in a bid to address significant court
backlogs and widespread abuse and corruption. At present,
however, implementation has been slow and patchy, notably
at the state level but also with regard to federal crimes
including IP infringement. Other developments aimed at
strengthening IP enforcement include the creation of a new
Digital IP Crime Unit within the Attorney General’s Office.

[ 70 www.uschamber.com/ipindex ]
NEW ZEALAND Rank: 14/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20 24.05
10 25
20 17.64
15.39
15

Enforcement 10
Trademarks
5
0
New Median Regional
New Zealand Trade Secrets and Market Access Zealand Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Signatory to the TPP 7 Proposed TPP implementing legislation limits availability of patent
term restoration for biopharmaceuticals
3 Copyright (Infringing File Sharing) Amendment Act and
corresponding regulation provide a relatively strong framework 7 Plain packaging passed into law in 2016
against online piracy

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 0.75 20. Industrial design term of protection 0.6
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.75
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 1
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.72
9. Term of protection 0.66 26. Software piracy rates 0.82
10. Exclusive rights 0.75 27. Civil and procedural remedies 1
11. Cooperative action against online piracy 0.75 28. Pre-established damages 0.75
12. Limitations and exceptions 1 29. Criminal standards 0.75
13. Digital rights management 1 30. Effective border measures 0.25
14. Government use of licensed software 0.75 31. Transparency and public reporting by customs 0.5
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 0 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 0
18. Exclusive rights 1 35. Post-TRIPS FTA 0.5
TOTAL: 24.05

[ www.uschamber.com/ipindex 71 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores does not distinguish between different products or provide
New Zealand’s overall score has decreased from 71% (21.38 out varying definitions of delay; the negative impact on a patent
of 30) in the fourth edition to 69% (24.05 out of 35) in the fifth holder’s term of protection of a delay in approval is the
edition. This change in score reflects a mixed performance in the same regardless of the type of product. And given these
5 new indicators added in the fifth edition and the passing of long timelines, it is unlikely that rights holders would ever
plain packaging legislation for tobacco products. On a positive be offered a term of restoration. Last, unlike markets in
note, New Zealand’s score has increased 0.25 on indicator 30. which a mechanism for patent term restoration is in place
Although border officials still do not have comprehensive ex (including the U.S.), New Zealand’s draft legislation would
officio powers (as noted in previous discussions, existing powers apply only to direct delays caused by the national drug
are limited), local evidence and rates of physical counterfeiting regulatory authority Medsafe and not, for example, to time
suggest that New Zealand customs authorities are, in practice, taken to conduct any additional clinical trials requested as a
relatively effective in deterring and detaining suspected precondition for market approval by Medsafe.
counterfeit goods. Moreover, it is expected that once the
New Zealand Parliament passes the Trans-Pacific Partnership Trademarks, Related Rights, and Limitations
Agreement Amendment Bill (which includes a clear mandate for
16. Discrimination/restrictions on the use of brands in the
officials to take ex officio action against suspected goods), New
packaging of different products: On September 8, 2016,
Zealand will receive a full score on this indicator.
the Smoke-Free Environments (Tobacco Standardized
Packaging) Amendment Bill passed its third reading by the
Patents, Related Rights, and Limitations New Zealand Parliament. The bill received Royal Assent
6. Patent term restoration for pharmaceutical products: on September 14, 2016. The government has stated that
New Zealand has up until now been one of a handful of Implementing Regulations are currently being developed
developed OECD economies (including Canada) that following a public consultation, but regardless of the
has not provided restoration for pharmaceutical products final shape that these regulations take, the legislation
for loss of patent term time due to delays caused by outlines very clearly the complete elimination of the use
the marketing approval process. As one of 12 signatory of trademarks, branding, or any type of company logo by
countries to the TPP Agreement, New Zealand is currently rights holders. The introduction of plain packaging in New
ratifying the treaty and drafting implementing legislation. Zealand significantly restricts the use of brands, trademarks,
Article 18.48 of the TPP states that contracting parties to and trade dress on retail packaging of tobacco products
the treaty “shall make available an adjustment of the patent and severely limits the ability of trademark owners to exploit
term to compensate the patent owner for unreasonable their rights. The passage of this legislation decreases New
curtailment of the effective patent term as a result of the Zealand’s score on this indicator from 1 to 0.
marketing approval process.” As in other economies that
currently do not offer a restoration period, the introduction
of this mechanism would significantly strengthen New
Zealand’s national IP environment as it relates to the
life sciences. Draft implementing legislation has been
presented by the New Zealand government to Parliament
and is currently progressing in Parliament. The Trans-Pacific
Partnership Agreement Amendment Bill was in November
2016 reported out of the Foreign Affairs, Defense and
Trade Committee and recommended for passage by the
full Parliament. However, both this draft bill and proposed
regulations put forth by the Ministry of Business, Innovation
and Employment during the summer would effectively
undermine many of the principles contained in the TPP.
To begin with, both documents would limit the term of
restoration offered to a maximum of 2 years. This term
of restoration is significantly lower than the prevailing
international best practice of 5 years (offered in the U.S.
and EU) and the benchmark used in the Index. Furthermore,
the documents define “unreasonable delays” as delays of
between 3 and 5 years depending on the type of product (a
chemical versus a biologic medicine). The TPP agreement

[ 72 www.uschamber.com/ipindex ]
NIGERIA Rank: 35/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.39
13.73
15 10.97

Enforcement 10
Trademarks
5
0
Nigeria Median Regional
Nigeria Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic IP framework in place 7 Overall weak and limited legal and regulatory framework with
major forms of IP rights not in place
3 Despite overall challenging environment, ongoing enforcement
efforts by the Nigerian Communications Commission (NCC) are 7 Enforcement challenges persist
encouraging
7 Persistently high rates of physical and growing online piracy
7 Limited participation in international IP treaties

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 0 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.75
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.43
9. Term of protection 0.74 26. Software piracy rates 0.2
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0.25 28. Pre-established damages 0
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0 30. Effective border measures 0
14. Government use of licensed software 0 31. Transparency and public reporting by customs 0.25
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0.5
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 1
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0
TOTAL: 10.97

[ www.uschamber.com/ipindex 73 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Membership and Ratification of International

Nigeria’s overall score has stayed virtually the same, decreasing Treaties
marginally from 31.4% (9.42 out of 30) in the fourth edition to Nigeria scores low in its participation in and ratification of
31.3% (10.97 out of 35) in the fifth edition. This change in score international treaties, largely because Nigeria is not a contracting
reflects a mixed performance on the 5 new indicators added in party to the Singapore Treaty on the Law of Trademarks, nor has
the fifth edition. it concluded a major FTA post-TRIPS membership that includes
substantial provisions on IP rights. Nigeria is a signatory to but
has not ratified the WIPO Internet Treaties, and it is a signatory
Trade Secrets and Market Access
to and has ratified the Patent Law Treaty.
23. Barriers to market access: Nigeria has had a number of
localization policies and local content requirements in place
since 2010. These policies have targeted specific sectors
of the economy including energy and ICT. These efforts
have been most pronounced in the minerals sector. The
2010 Nigerian Oil and Gas Industry Content Development
Act is the legislative basis for the majority of these policies.
The law and accompanying regulatory guidance provides
a detailed list of requirements ranging from employment
of local staff, to mandatory local procurement, to levels
of technology transfer. These requirements include, for
example, that a minimum of 50% of oil or other petroleum
products are reserved for trade and marketing for Nigerian-
owned companies. Similarly, limits are in place for the filling
of management positions for ex-patriots (at the time of
research, this was a maximum of 5% of management staff).
The law also requires foreign entities to actively engage in
the transfer of technology to Nigerian entities. Specifically,
Articles 43–46 of the act require affected entities to “carry
out a programme … for the promotion of technology
transfer to Nigeria in relation to its oil and gas activities.”
This includes taking part in joint ventures and partnering
and licensing activities with local Nigerian companies.
In 2014, these regulations were intensified with regard
to oil rigs and related technologies. Similar guidelines
are in place for the ICT sector through the “Guidelines
for Nigerian Content Development in Information and
Communication Technology” developed and enforced by
the Office for Nigerian Content Development in Information
& Communication Technology. In 2016, a number of
proposals were made by the Nigerian government to further
strengthen these local content requirements. In July 2016,
Minister for Communications Adebayo Shittu stated that the
government should more vigorously impose local content
requirements on the state procurement of ICT products.
Shittu was quoted by local press as saying that “under
my watch, Nigeria will not be a dumping ground for all
forms of technologies.” The conditioning of market access
with the sharing of IP through direct technology transfer
requirements or indirectly through local manufacturing,
ownership, or production requirements is a significant
barrier to trade and investment. Imposing any additional
such requirements in Nigeria will reduce the score for
this indicator.

[ 74 www.uschamber.com/ipindex ]
PAKISTAN Rank: 44/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.64
15.39
15

Enforcement 10 8.37
Trademarks
5
0
Pakistan Median Regional
Pakistan Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic IP protection available in legislation (with exceptions 7 Significant discrepancy between IP rights in law and level of
particularly for sector-specific rights) practical enforcement
3 Introduction of specialized IP courts and capacity building aimed at 7 Enforcement often arbitrary and nondeterrent; IP infringement
streamlining and improving decision making viewed as minor offense (with exceptions, particularly for
counterfeit medicines)
3 Greater efforts at expanding public education, modernizing IP laws,
and enhancing authority of enforcement agencies 7 High counterfeiting and piracy rates
3 Relatively long term of protection for designs in law (although lack 7 Low level of international commitment to strengthening IP (such as
of implementing legislation may negate term in practice) via IP-related treaties)

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 0.25 20. Industrial design term of protection 1
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.25
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.18
9. Term of protection 0.53 26. Software piracy rates 0.16
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0 30. Effective border measures 0.25
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 8.37

[ www.uschamber.com/ipindex 75 ]
Spotlight on the National IP Environment

Patents, Related Rights, and Limitations Bill adopted by the legislature in 2016) could potentially
cover sales of counterfeits online. However, there is no
2. Patentability requirements: Pakistan’s Patent Ordinance
indication that enforcement action is taken on this basis.
provides for the standard patentability criteria of novelty,
Pakistan experiences high rates of counterfeiting, including
inventive step, and industrial application. Significant
via online sales of medicines. By some estimates, 40%–60%
barriers to patenting life sciences inventions exist, including
of drugs are considered to be fake, with up to 10,000 illegal
exclusions for isolated biologic or natural substances, new
distributors and pharmacies.
uses for a known product or process, and modifications that
do not result from a change in chemical formula or process
of manufacture. Moreover, most opposition proceedings Enforcement
in Pakistan (which largely occur pre-grant) target 27. Civil and procedural remedies; and 29. Criminal
pharmaceutical and biotech claims. Second medical use standards including minimum imprisonment and
patents are reportedly granted at times using a Swiss-style minimum fines: Generally speaking, IP laws provide
claim as long as material improvement in a compound’s standard remedies for infringement, although some
properties is present or there is evidence of enhanced significant loopholes are available. In cases where a
efficacy. Pakistan is not a contracting party to Patent defendant can show lack of knowledge, copyright holders
Cooperation Treaty (PCT) and no formal time frame for can only secure injunctions and profits (where relevant), and
examination exists. Patent examination typically takes about liability for copyright infringement is difficult to establish
two to three years. Relatively little jurisprudence exists on where no commercial use exists. Criminal penalties are
the boundaries of patentable subject matter, with litigation inadequate and nondeterrent, lack minimum sentences,
considered to be a costly and long process. In a positive and, for patents, do not distinguish between unconscious
step, the Plant Breeders’ Rights Act under consideration in and willful infringement. Huge delays have existed in the
2016 would allow for the patentability of seed and plant judicial system for some time; one report indicates that
biotechnologies. Electronic access to patent information is over 600,000 cases are pending in civil courts (with cases
also underway. lasting up to 5 years, although many cases never reach
trial). Courts are incentivized to provide very minimal
Copyrights, Related Rights, and Limitations sentences, with imprisonment rarely imposed. However,
some improvements to the system have taken place
10. Legal measures that provide necessary exclusive
in recent years. For instance, certain provinces have
rights preventing infringement of copyrights and
raised the penalties for infringement; in 2015, Punjab
related rights (including Web hosting, streaming, and
province increased penalties for the production and sale
linking); 11. Availability of frameworks that promote
of counterfeit medicines to a minimum of 5 years (with a
cooperative action against online piracy; and 12.
maximum of 10 years). In addition, in 2015, the Intellectual
Scope of limitations and exceptions to copyrights and
Property Organization introduced specialized IP courts,
related rights: Pakistan’s Copyright Ordinance provides
training for judges, and efforts to reduce red tape. It
for general exclusive rights against infringement but does
remains to be seen how effective these new courts will be in
not specifically address piracy in the online sphere. It also
addressing backlogs, but appointed judges reportedly have
outlines a fair dealing framework in relation to copyright,
strong IP backgrounds.
although it contains a major loophole for the government
use of textbooks, allowing for a royalty-free compulsory
license. Digital piracy is rampant in a number of sectors,
including an estimated 90% rate of book piracy at
universities. Music and software piracy is also very high, as
is unauthorized rebroadcasting. No ISP liability in relation
to copyright exists, and media reports in 2016 mentioned
that a number of ISPs in Pakistan run dedicated portals for
pirated content.

Trademarks, Related Rights, and Limitations

19. Availability of frameworks that promote cooperative
private action against the online sale of counterfeit
goods: No law specifically covers ISPs’ role in addressing
counterfeiting online, although legislation on electronic
crimes (including the recent Prevention of Electronic Crimes

[ 76 www.uschamber.com/ipindex ]
PERU Rank: 28/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
14.34 15.39
15 13.79

Enforcement 10
Trademarks
5
0
Peru Median Regional
Peru Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic IP protections available (although with gaps in sector-specific 7 Limited patentability and lack of effective IP protection for life
provisions) sciences
3 Standard legal framework for IP enforcement, with some 7 Rudimentary digital copyright regime (with some exceptions)
improvements to application under new IP courts
7 High rates of counterfeiting and piracy
3 Border measures provided for in legislation and customs publishes
7 Weak IP enforcement on the ground
reports of IP-related seizures
3 Efforts to strengthen the technology transfer environment

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.25 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.75
7. Regulatory data protection term 0.25 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.33
9. Term of protection 0.74 26. Software piracy rates 0.37
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0.25 29. Criminal standards 0.5
13. Digital rights management 0.5 30. Effective border measures 0.5
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0.5
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 1
TOTAL: 14.34

[ www.uschamber.com/ipindex 77 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Enforcement

Peru’s overall score has remained the same at 41% of the total 29. Criminal standards including minimum imprisonment
possible score, although its score increased from 12.30 (out and minimum fines: As mentioned in the fourth edition of
of 30) in the fourth edition of the Index to 14.34 (out of 35) in the Index, Peru has a limited legal framework for civil and
the fifth edition. Peru’s score reflects a slight rise (of 0.25) for criminal remedies and the overall enforcement environment
indicator 29 on criminal standards and enforcement (although remains weak. Criminal prosecution is undermined by
other steps forward also took place in 2016 that did not long delays and the de-prioritization of IP in the judiciary
necessarily impact Peru’s score), as well as a weak-to-moderate system. In a partial move to address these concerns, two
performance on the 5 new indicators added to the Index in the new criminal courts in Lima and Callao specializing in IP and
fifth edition. customs crimes began operating in 2016, replacing the two
temporary IP criminal courts that had been in place since
2014.
Patents, Related Rights, and Limitations
2. Patentability requirements: In a positive step to tackle
persistent delays in granting patents, the Peruvian IP office Membership and Ratification of International
(INDECOPI) entered into a PPH agreement with Spain Treaties
in January 2016 and with the Pacific Alliance countries 35. At least one free trade agreement (FTA) with
(Mexico, Colombia, and Chile) in June 2016. Under both substantive and/or specific IP provisions such as
systems, patents already reviewed and approved in one of chapters on IP and separate provisions on IP rights
the other member countries can benefit from expedited provided it was signed after WTO/TRIPS membership:
review. Currently, reported time frames vary but are fairly The TPP was signed on February 4, 2016, by the 12
long. INDECOPI reports an average of three years to patent contracting members and is expected to create a more
grant, while the 2016 Ministry of Foreign Relations’ report level playing field in IP and reflect 21st century realities. In
on doing business in Peru indicates a four-year time frame. Peru, where the agreement was submitted to Congress for
Pre-grant opposition proceedings add an additional one to ratification in 2016, implementing TPP obligations would fill
two years to the patent review and grant process. in important gaps in the current IP framework, such as the
availability of second use patents, a system for streamlining
pharmaceutical patent disputes and patent term restoration;
Trade Secrets and Market Access
regulation of ISP liability; and more adequate civil and
24. Regulatory and administrative barriers to the criminal remedies against infringement.
commercialization of IP assets: Peruvian universities have
in place largely outdated IP policies, often denying even
partial ownership of patents to the inventor. Other obstacles
to commercialization of IP include a de facto requirement
for registering licensing agreements with INDECOPI in
order for royalty payments to be counted against taxes.
Also, according to Peruvian law (Article 12 of Decision
291), authorities must assess the economic contribution
of a licensed technology including by estimating the
expected profits and price of the goods. Nevertheless, the
government is taking steps to expand technology transfer
and IP licensing, including by public organizations, as set
forth in a special plan for technology transfer for the period
2016–21.

[ 78 www.uschamber.com/ipindex ]
PHILIPPINES Rank: 34/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.64
15.39
15 11.78

Enforcement 10
Trademarks
5
0
Philippines Median Regional
Philippines Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Most basic IP rights provided for in legislation (although missing 7 Loopholes, red tape, and nondeterrent remedies in IP legislation
certain key sector-specific rights) and in courts
3 Growing specialization and capacity building, such as in 7 Significant gaps in life sciences and content-related IP rights
administrative IP courts
7 Online piracy rampant, with digital largely unaddressed
3 Heightened efforts to improve IP enforcement and interagency
7 Limits in trademark protection, mixed enforcement outcomes
and international cooperation (although inadequate for tackling
level of infringement) 7 Some concerns with IP-related barriers to market access (such as
for the media sector)

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 0.5 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0.5 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0.25 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.25
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0.5 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.32
9. Term of protection 0.53 26. Software piracy rates 0.33
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0.25
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0
TOTAL: 11.78

[ www.uschamber.com/ipindex 79 ]
Spotlight on the National IP Environment

Patents, Related Rights, and Limitations 13. Digital rights management (DRM) legislation: 2013
amendments to the IP Code define circumvention of
2. Patentability requirements: The Intellectual Property Code
technological measures as infringement and allow for
of the Philippines provides for standard basic criteria for
double damages to be sought. In addition, while the IP
patentability; however, certain exclusions are out of sync
Code is fairly nonspecific (it includes electronic rights
with international standards. In particular, 2008 amendments
management information but does not specify access
introduced a fourth hurdle to patentability in the form of
control TPMs), the E-Commerce Act section 33 provides for
enhanced efficacy requirements explicitly aimed at limiting
criminal penalties for unauthorized access in a computer
the patentability of new forms and uses of pharmaceutical
system or ICT system. Specifically, penalties cover
products. But second medical use patents are available
“unauthorized copying, use and sharing of protected
per the examination guidelines of the IP Office (IPOPHL)
material, electronic signature or ... legally protected
through Swiss-type claims and as long as they fulfill
sound recordings through the internet,” with minimum
other patentability criteria. Similarly, although computer
fines of 100,000 pesos (about USD2,000) and 6 months’
programs are excluded from patentability in the IP Code,
to 3 years’ imprisonment). A 2015 legal opinion from the
its implementing rules permit software claims in relation
Department of Justice indicates that the above section of
to a unique technical operation or effect on a computer.
the E-Commerce Act can be applied to TPM circumvention.
IPOPHL faces significant backlogs: time to grant is three
Still, neither the IP Code nor the E-Commerce Act provide
to four years on average, depending on the type of patent
penalties for sales/trafficking in circumvention devices.
application. To help streamline processes and enhance
transparency, IPOPHL has adopted an electronic filing
system; it is a member of the ASEAN Patent Examination Enforcement
Cooperation with access to regional search and 27. Civil and procedural remedies; and 29. Criminal
examination results; and it has entered into a PPH with standards including minimum imprisonment and
the USPTO and JPO. minimum fines: The Philippines has in place both a
judicial and an administrative litigation system, whereby
7. Regulatory data protection (RDP) term: Section 72.4 IP infringement cases can be decided by courts or
of the IP Code and Administrative Order No. 27A s2001 administrative IP tribunals within IPOPHL. The dual system
protect against unfair commercial use and disclosure of generates some confusion about the validity of similar cases
undisclosed test data; however, no term of protection is before both the IPOPHL and judicial courts, leading to
stated in the law. uncertainty and additional costs. Nevertheless, IPOPHL is
generally considered to be a more streamlined and cost-
8. Patent opposition: The Philippines does not have in effective route compared to judicial proceedings, where
place an explicit patent opposition mechanism. Rather, significant backlog and red tape deters the filing of IP cases.
a third-party observation system (Community Review IPOPHL also engages in other enforcement activities in
Process), introduced recently, allows a select list of third partnership with rights holders, including sending warning
parties (including government, industry, universities, and notices to suspected infringers, conducting inspections and
other key stakeholders) to provide observations during raids, and collecting evidence. The latest data, however,
the examination process, which are taken into account by suggest that enforcement actions were lower in 2015–16
examiners. Given the early phases of the mechanism, there compared with previous years. Since 2008, the Philippines
is mixed evidence concerning its effectiveness and impact also has had in place an Inter-Agency Committee on
on patent office delays. IPR Enforcement, which inter alia dedicates efforts to
education campaigns, capacity building, data sharing, and
Copyrights, Related Rights, and Limitations international harmonization.

11. Availability of frameworks that promote cooperative

action against online piracy: The E-Commerce Act and IP
Code provide a wide safe harbor for ISPs, limiting their role
in combating online infringement. ISPs are only liable for
copyright infringement if on top of being notified and/or
aware of infringing activity, they also obtain a benefit from
the infringement and there is sufficient proof of this benefit.
In addition, ISPs are only required to block access to content
if there is a court order.

[ 80 www.uschamber.com/ipindex ]
POLAND Rank: 15/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.61
20
10 25 23.00

20
15.39
15

Enforcement 10
Trademarks
5
0
Poland Median Regional
Poland Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Legal framework for IP protection largely aligned with EU standards 7 Gaps in the legal basis for online copyright protection, including
weak provisions on ISP liability, overly broad limitations and
3 Certain sector-specific IP rights available (including for life sciences)
exceptions, and lack of penalties for downloading infringing
3 Standard legal measures for trademark and industrial design material
protection in place
7 Relatively high levels of online piracy in comparison with other
3 Increasing IP enforcement efforts high-income economies
7 Judicial enforcement sluggish, with red tape, lack of attention to
cases of IP infringement, and generally nondeterrent penalties

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 1
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0.25 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 0.75
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.57
9. Term of protection 0.66 26. Software piracy rates 0.52
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.5
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 1
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0.5
18. Exclusive rights 0.5 35. Post-TRIPS FTA 1
TOTAL: 23.00

[ www.uschamber.com/ipindex 81 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trade Secrets and Market Access
Poland’s overall score has increased from 63% of the total 22. Protection of trade secrets: Trade secrets are protected in
possible score (with a score of 18.75 out of 30) in the fourth Poland through the Unfair Competition Law as well as labor
edition of the Index to 66% (23.00 out of 35) in the fifth edition. law regulations. Remedies for trade secret infringement
This increase in score reflects relatively strong frameworks, include both civil and criminal liability, but court procedures
including at the EU level, in relation to the new indicators added are reportedly long and tend to adjudicate the lowest
in the fifth edition, particularly the areas of patent opposition, penalties available. Also, under Polish law, employers
industrial design protection, and customs transparency and cannot impose nondisclosure clauses to exiting employees.
reporting on trade-related IP infringement. In addition, Poland’s Transposition of the EU Trade Secret Directive (in force since
score for indicator 9 rose slightly due to the extension of the July 2016) into Polish law would introduce a proper trade
term of copyright protection for audiovisual performances to secret definition, second liability claims, and protection of
70 years (up from 50 years). confidentiality during legal procedures.

Patents, Related Rights, and Limitations Enforcement

2. Patentability requirements: Act 1266, which entered 27. Civil and procedural remedies: A 2016 Supreme Court
into force in late 2015, updated the Polish IP Law to align judgment (in case II CSK 282/15) established a type of
it with European and international standards. Notably, bifurcated system for concurrent patent infringement and
the amendments introduced a six-month grace period validity proceedings that is expected to add significant
for determining novelty, clarified that second medical delays. Under the decision, validity proceedings are to
use claims formulated in the product-by-use format are be an exclusively administrative proceeding independent
acceptable, and expanded the patentability of gene from infringement proceedings, and courts should suspend
sequences as long as their industrial application is disclosed. infringement rulings until the Patent Office rules on validity
Furthermore, the Ministries of Economic Development and (whereas previously the proceedings were able to run
Science have unveiled plans to deregulate patent attorney concurrently). Bifurcated systems, used in other countries
fees, a move that is expected to make patent protection such as Germany, are intended to streamline infringement
more accessible for businesses (according to a local survey, proceedings by separating them from questions of validity
the vast majority of Polish innovators view the high costs of and typically allowing stays only where there is strong case
patent application procedures, including attorney expenses, for invalidity. By permitting a broader use of stays, the new
as the main obstacle to protecting their IP assets). Polish system, by some estimates, will delay infringement
rulings by about two years.
Trademarks, Related Rights, and Limitations
28. Preestablished damages and/or mechanisms for
18. Legal measures available that provide necessary determining the amount of damages generated by
exclusive rights to redress unauthorized uses of infringement: A recent Constitutional Court decision,
trademarks; and 30. Effective border measures: A in relation to a case against the cable network operator
number of measures updated and extended trademark UPC Poland by the Polish Filmmakers Association for
protection for EU member states, including European rebroadcasting without rights holder permission, lowers
Directive 2015/2436, which is applicable to national the amount of fines available for copyright infringement.
trademarks, and Regulation 2015/2424, which is applicable Previously, damages and fines for copyright infringement
to EU trademarks. The reform introduces protection for stood at three times the amount of licensing fees due; the
well-known marks for dissimilar products and services (which Constitutional Court ruling revokes this preestablished
is already available in Poland), facilitates the registration standard, thereby weakening a key existing channel in
of nontraditional marks, and formally extends the scope of Poland for deterring online piracy. At the time of research,
enforcement activities to include in-transit custom actions the European Court of Justice (ECJ) was considering
and to address preparatory acts such as the production of whether this approach complies with EU rules in the
fake labels. The reform also aims to streamline EU trademark Infringement Directive.
applications and reduce costs.

[ 82 www.uschamber.com/ipindex ]
RUSSIA Rank: 23/45
Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.61
20
10 25
20
15.53 15.39
15

Enforcement 10
Trademarks
5
0
Russia Median Regional
Russia Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Legal reform efforts passed in areas of copyright, trade secrets, 7 High level of uncertainty regarding de facto availability of
and biopharmaceutical-related IP rights RDP—current jurisprudence and proposed government policy
undermines RDP regime
3 Although challenges persist, copyright enforcement regime
strengthened through notification and takedown system 7 Increasingly punitive localization requirements targeting
biopharmaceutical sector
3 New specialist IP Court in place since 2013
7 Long-standing government efforts to push compulsory licenses as
3 Full participant in international IP treaties
cost-containment measure targeting biopharmaceuticals
7 Parallel imports encouraged as cost-containment measure
7 Persistently high levels of physical and online piracy—latest
software piracy rates show an increase to 64% from 62% in 2013

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 0.25 20. Industrial design term of protection 1
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 0
7. Regulatory data protection term 0.6 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0.5 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.31
9. Term of protection 0.74 26. Software piracy rates 0.38
10. Exclusive rights 0.5 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.25
12. Limitations and exceptions 0 29. Criminal standards 0
13. Digital rights management 0.25 30. Effective border measures 0.5
14. Government use of licensed software 0 31. Transparency and public reporting by customs 0.5
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 0.25 34. Patent Law Treaty 1
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 15.53

[ www.uschamber.com/ipindex 83 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores in Russia. Continued uncertainty over the availability of an
effective RDP term in Russia will lead to a reduction in score
Russia’s overall score has increased slightly from 43.5% (13.06
for this indicator to 0.
out of 30) in the fourth edition to 44.4% (15.53 out of 35) in
the fifth edition. This change in score reflects a relatively strong
performance on the 5 new indicators added in the fifth edition. Trade Secrets and Market Access
However, continued deterioration in the localization environment 23. Barriers to market access: As noted in previous editions of
decreased Russia’s score on indicator 23. the Index, the Russian government has targeted innovation
as a main impetus behind diversifying and modernizing its
Patents, Related Rights, and Limitations economy. This includes a number of strategies and initiatives
from Vision 2020 to the latest “National Technology
7. Regulatory data protection (RDP) term: Under its WTO
Initiative” and goals of Russian leadership in innovation
commitments and the 2010 Law of Medicines, Russia has
and high-tech industries by 2035. A uniting theme of
committed to implementing an RDP term of six years. This
these efforts has been a focus on localization. A number of
positive step has significantly strengthened the existing
industries and sectors have been targeted with requirements
framework and protection mechanisms for pharmaceutical
and preferences for local production and manufacturing.
innovation. However, as noted in previous editions of the
As noted in past editions, biopharmaceuticals and medical
Index, a lack of progress remains in implementing this
devices are two high-tech sectors that have been targeted.
commitment and developing a fully functioning form of
In 2010, the government passed Federal Law 61-FZ on
RDP. Specifically, rights holders have faced uncertainty in
the Circulation of Medicines stipulating that clinical trials
the interpretation of the existing legal framework by the
for innovative and generic medicines (bioequivalence
judiciary as well as from legislative changes that took effect
studies) must be conducted in Russia if the product is to
in 2016. A long-running and pivotal court case between
be submitted for registration. These policies intensified
a local generic manufacturer (BioIntegrator) and Novartis
in 2016. For example, in November 2015, the Russian
has added to the uncertainty. Novartis initially lost its case
government adopted Resolution No. 1289 “On Restrictions
of exclusivity infringement in spring 2015. However, this
and Conditions of Access of Foreign Essential Medicines
decision was reversed later in the year by an arbitration
to State and Municipal Tenders,” which introduced a direct
court that held that BioIntegrator did in fact infringe
import ban within the procurement system. Access to state
Novartis’ exclusivity, specifically its submitted clinical
purchases of imported medicines are allowed when (at the
research data as part of its original market authorization
time supplies are requested) at least two generics produced
application. In yet another court decision in December
within the Eurasian Economic Union (EEU) are available
2015, the relatively newly established IP Court in Moscow
for a given product. Foreign manufacturers will be able to
partially revised this judgment. The court upheld the
participate in a public tender in cases only where fewer than
reasoning by the arbitration court that Novartis was
two bids from EEU manufacturers have been submitted.
entitled to protection for its submitted clinical research
In addition, Decree 1125/2015 made the National
data. However, the court also argued that not all data were
Immunobiological Holding Company (owned by state
statutorily protected. Specifically, the court ruled that data
Corporation Rostech) the sole provider of immunobiological
that had been published in specialized journals and were
products for state needs for the period 2015–17. For the
viewed as being in the public domain were not protected.
second consecutive year, this overall deterioration of the
Such an interpretation is inconsistent with established
localization environment in Russia decreased the score for
international principles of data protection and trade secrets.
this indicator.
As such, this judgment creates further uncertainty for
what is already a challenging situation for rights holders
in Russia. Furthermore, legislative amendments to the
Law of Medicines that regulate the time period for the
submission of follow-on product applications took effect
in 2016. These amendments allow follow-on applicants to
submit their applications for market approval four years
after market approval for small-molecule products and
three years for biologic (large-molecule) products. Given
the existing uncertainties in the Russian market with respect
to the approval of follow-on products within a current term
of exclusivity, a clear risk exists that these amendments will
further undermine the practical availability of RDP protection

[ 84 www.uschamber.com/ipindex ]
SAUDI ARABIA Rank: 21/45
Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 15.98 15.39
15 13.73

Enforcement 10
Trademarks
5
0
Saudi Median Regional
Saudi Arabia Trade Secrets and Market Access Arabia Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Relatively strong patenting environment – CIIs allowed 7 Significant gaps in copyright framework—chiefly relating to
protection online
3 2013 patent enforcement mechanism in place for
biopharmaceuticals through a linkage system 7 Increasing number of localization requirements
3 Ex officio authority in place for customs officials 7 Uncertainty over enforcement of guidelines for use of only licensed
software by government agencies
7 Persistently high levels of physical and online piracy—latest
software piracy rates at 49%
7 Industry reports of a lack of practical availability of RDP—indirect
reliance has been allowed when reviewing follow-on products
7 Limited participation in international IP treaties

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0.75 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 1 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.5
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 0.75 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.54
9. Term of protection 0.53 26. Software piracy rates 0.51
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0 28. Pre-established damages 0
12. Limitations and exceptions 0.5 29. Criminal standards 0.5
13. Digital rights management 0.25 30. Effective border measures 0.5
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0.5
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 1
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0
TOTAL: 15.98

[ www.uschamber.com/ipindex 85 ]
Spotlight on the National IP Environment

Patents, Related Rights, and Limitations public guidelines are in place. Physical and online piracy
remains a significant challenge to rights holders in Saudi
4. Pharmaceutical-related patent enforcement and
Arabia. Industry reports suggest that 90% of music and film
resolution mechanism: Saudi Arabia introduced a patent
content in Saudi Arabia is pirated. And the estimated rate of
linkage system in 2013. Under Circular Letter No. 7448,
software piracy by the Business Software Alliance for 2015
the Saudi Food and Drug Authority requires follow-on
was 49%, a marginal change from the 2009 estimated rate
generic applicants to submit a letter from the Saudi Patent
of 51%.
Office and/or the Gulf Cooperation Council Patent Office
indicating that no registered patent exclusivity is or will be
in place for the relevant reference product at the time of Enforcement
marketing approval. This positive initiative greatly reduces 30. Effective border measures; and 31. Transparency and
the risk that follow-on biopharmaceutical products will be public reporting by customs authorities of trade-related
infringing a reference product’s exclusivity period. IP infringement: Ministerial Decision No. 1277, 2004
provides border measures relating to the infringement of
7. Regulatory data protection (RDP) term: The 2005 Minister IP rights. Article 2 provides customs officers with an ex
of Commerce and Industry’s decision No. 3218 “Regulations officio authority: “The Customs Authorities may suspend
for the Protection of Confidential Commercial Information” the clearance of goods suspected of bearing imitated
provides specific protection for submitted clinical research trademarks upon having prima facie evidence to this effect.”
data as part of a biopharmaceutical market registration It is not clear the extent to which this provision applies to
application. Article 5 of the regulations provides a clear goods in transit. Since 2009, Saudi customs authorities have
and unambiguous protection term of five years from the published annual reports. These reports include statistics
date of approval and states that relevant Saudi authorities on customs seizures of counterfeit goods. They do not,
“shall undertake to protect such information against unfair however, include data on countries of origin.
commercial use, for a minimum period of five years from the
date of obtaining the approval.” The existence of this RDP is
a positive feature of Saudi Arabia’s national IP environment.
Membership and Ratification of International
However, uncertainty exists over the actual availability of this
Treaties
protection as industry reports have suggested that follow-on Saudi Arabia scores low in its participation in and ratification of
products have been approved through the use of “indirect international treaties because it is not a contracting party to any
reliance” on submitted clinical research data. International of the IP treaties included in the Index apart from the Patent Law
standards and best practices for RDP are quite clear on this Treaty, to which it acceded in 2013.
subject: neither direct nor indirect reliance on submitted
clinical test data should be used to approve follow-on
products within the specified and offered term of protection.
Should reports of this practice persist, Saudi Arabia’s score
on this indicator will be reduced to 0.

Copyrights, Related Rights, and Limitations

10. Legal measures that provide necessary exclusive rights
preventing infringement of copyrights and related
rights (including Web hosting, streaming, and linking);
and 11. Availability of frameworks that promote
cooperative action against online piracy: Saudi copyright
law provides for basic exclusive rights and protection of
creative works. Article 9 of the Copyright Law Royal Decree
No. M/41 includes a reference to the exclusive right to
communication of a given work to the public “via any
possible means.” However, no specific law or regulation
is in place that provides a notification and takedown
mechanism for infringing online content, nor is any similar
legal framework in place to specifically address the issue
of online infringement. The blocking of web content,
including copyright-infringing content, occurs sporadically
by the Ministry of Culture and Information. No official or

[ 86 www.uschamber.com/ipindex ]
SINGAPORE Rank: 8/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 28.62
20
10 25
20 17.64
15.39
15

Enforcement 10
Trademarks
5
0
Singapore Median Regional
Singapore Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Signatory to the TPP 7 Estimated software piracy has decreased from 35% in 2009 to 30%
in 2015—but is still quite high for a high-income economy
3 2014 copyright amendments enforced through 2016 High Court
order 7 Lack of transparency and data on customs seizures of IP-infringing
goods
3 Advanced national IP framework in place
3 Life sciences IP rights in place and available
3 Patent enforcement legal framework adequate and generally
applied

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 1 20. Industrial design term of protection 0.6
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.75
4. Pharmaceutical-related enforcement 1 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 0.75 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.58
9. Term of protection 0.74 26. Software piracy rates 0.7
10. Exclusive rights 0.75 27. Civil and procedural remedies 1
11. Cooperative action against online piracy 1 28. Pre-established damages 1
12. Limitations and exceptions 1 29. Criminal standards 0.75
13. Digital rights management 0.75 30. Effective border measures 0.75
14. Government use of licensed software 1 31. Transparency and public reporting by customs 0.25
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 0
18. Exclusive rights 0.75 35. Post-TRIPS FTA 1
TOTAL: 28.62

[ www.uschamber.com/ipindex 87 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Others aim to simplify and modernize Singapore’s copyright
law. At the time of research, no final proposed legislation
Singapore’s overall score has decreased from 85% (25.63 out
had been presented to the Parliament of Singapore.
of 30) in the fourth edition to 82% (28.62 out of 35) in the
fifth edition. This decrease in score reflects a relatively mixed
performance in the 5 new indicators added in the fifth edition. Trademarks, Related Rights, and Limitations
For example, Singapore customs authorities do not publish 16. Discrimination/restrictions on the use of brands in
annual or systematic statistics on seizures of IP-infringing goods. the packaging of different products: In early 2016, the
Annual enforcement statistics are published only for offenses Parliament of Singapore passed a set of amendments to
and enforcement activities related to cigarettes, alcohol, and the Tobacco (Control of Advertisements and Sale) Act.
fuel gauge noncompliance. Only intermittent press releases on These amendments largely mirror proposals put forth
IP-related enforcement activities are published. in a consultation document by the Ministry of Health in
2015, including enhanced restrictions on point-of-sale
Copyrights, Related Rights, and Limitations advertising and a ban on “emerging tobacco products.”
The amendments are set to come into force in the second
10. Legal measures that provide necessary exclusive rights
half of 2017 and regulations and guidelines are currently
preventing infringement of copyrights and related rights
being finalized by relevant government agencies. Prior
(including Web hosting, streaming, and linking); and 11.
to the public consultation in 2015, the Ministry of Health
Availability of frameworks that promote cooperative
had discussed the possibility of including proposals for
action against online piracy: As noted in previous editions
standardized or plain packaging. The introduction of
of the Index, in 2014 Singapore passed amendments
such packaging for tobacco products in Singapore would
to its Copyright Act that strengthened rights holders’
significantly restrict the use of brands, trademarks, and
recourse mechanisms against online piracy. For many years,
trade dress on the retail packaging of tobacco products
Singapore has faced the challenge of relatively high levels
and severely limit the ability of trademark owners to exploit
of illegal downloading. The amendments to the Copyright
their rights. It would also decrease Singapore’s score on this
Act provide rights holders with an avenue to apply directly
indicator from 1 to 0.
to the High Court for an injunction “requiring the network
service provider to take reasonable steps to disable access
to the flagrantly infringing online location.” In February
2016, the High Court issued its first order under these
amendments, ordering all of Singapore’s major ISPs to block
the piracy website Solarmovie.ph. The application to block
the website was made by the industry association Motion
Picture Association of America and its member companies.
Local legal analysis suggests that the relatively short time
span of two months from application to the High Court to
the actual issuing of the order presents what could be a
practical and workable mechanism to reduce the availability
of pirated content in Singapore.

9. Copyright (and related rights) term of protection;

12. Scope of limitations and exceptions to copyrights
and related rights; and 13. Digital rights management
(DRM) legislation: In August 2016, the Ministry of Law
and the Intellectual Property Office of Singapore issued a
consultation document for proposed changes to Singapore’s
copyright law. The consultation proposes changes to a
wide swath of existing copyright statute and regulations,
including term of protection; exceptions and limitations
(including the potential broadening of educational use
exceptions); and increasing the number of exceptions
available to unlocking existing TPMs or DRMs in place.
Some of the proposed measures will harmonize Singapore’s
copyright regime with existing international standards and
treaty obligations under, for example, the TPP Agreement.

[ 88 www.uschamber.com/ipindex ]
SOUTH AFRICA Rank: 33/45
Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.39
15 12.70 13.73

Enforcement 10
Trademarks
5
0
South Africa Median Regional
South Africa Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Draft copyright amendments and 2016 High Court ruling provide 7 Increasing policy emphasis on localization and local content
greater clarity on copyright exceptions and potentially insert DRM requirements through public procurement and 2016 Industrial
protection into the Copyright Act Policy Action Plan (IPAP)
3 Relatively low level of software piracy—33% in 2015—compared 7 New IP Consultative Framework does not fundamentally address
with other African economies South Africa’s gaps in IP protection—focus is not on innovation
and development of new IP in South Africa but of use of existing
developed IP
7 Weak protection for patents and related rights
7 Life sciences IP rights not in place
7 High level of counterfeit goods

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0 20. Industrial design term of protection 0.5
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.75
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.5
9. Term of protection 0.53 26. Software piracy rates 0.67
10. Exclusive rights 0.5 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.25
12. Limitations and exceptions 0.25 29. Criminal standards 0.5
13. Digital rights management 0.5 30. Effective border measures 0.5
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0.5
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0
TOTAL: 12.70

[ www.uschamber.com/ipindex 89 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores the High Court of South Africa finally made its judgment in
the long-running court case between Moneyweb and Fin24
South Africa’s overall score has decreased from 39% (11.74
(two news websites) in May 2016. Of particular significance,
out of 30) in the fourth edition to 36% (12.70 out of 35) in the
the court’s detailed outline of applicable criteria help define
fifth edition. This decrease in score reflects a relatively mixed
the meaning of fair dealing and relevant exceptions and
performance on the 5 new indicators added in the fifth edition.
limitations contained in the current Copyright Act. Although
For example, South African customs authorities do not publish
this judgment does not represent a sea change in South
annual or systematic statistics on seizures of IP-infringing goods.
Africa’s copyright environment—as detailed in previous
This drop in score is also the result of the increased policy focus
editions of the Index, numerous gaps in copyright law still
on localization and local content requirements.
exist and significant challenges persist with regard to both
digital and physical piracy—it nevertheless provides an
General Comments important clarification to what had, up until now, been an
In July 2016, the Department of Trade and Industry (DTI) released area of copyright in which the case law was very sparse.
the document “Intellectual Property Consultative Framework.”
This is not a legislative document or an overview of proposed
Trade Secrets and Market Access
policy reforms. Rather, the stated purpose of the framework is
“not to prescribe South Africa’s IP policy position, but to put 23. Barriers to market access: As mentioned in previous
forward the perspective of the DTI in a consultative instrument to editions of the Index, the South African government has for
facilitate what will be continuous engagement with governmental many years focused on developing its domestic economy
partners and society at large.” The framework comes on the through a range of localization policies. These policies
back of a long-standing debate in South Africa over IP rights and are both general as well as industry and sector specific.
a number of legislative reform efforts over the past few years For example, South Africa has long-standing local content
including a now withdrawn draft patent bill. It is a positive step requirements for certain sectors including broadcasting.
that the government of South Africa recognizes the need for Within public procurement, significant local content
reform to its national IP environment and the value of consulting requirements have been in place since 2011 for a host
all stakeholders in that process. Unfortunately, this framework of specially designated sectors ranging from automotive
document focuses rather solely on one type of IP right, patents, (buses), set-top boxes, clothing, and furniture. Local
and mainly on one high-tech sector, biopharmaceuticals. Like content requirements range from 10% to 100%, depending
the Ministry of Science and Technology’s 2014 flagship policy on the industry. More generally, the National Industrial
document for the biotechnology sectors, The Bio-Economy Participation Programme (NIP) has been in place since the
Strategy, the framework focuses on ways in which South Africa late 2000s. The NIP requires that foreign suppliers awarded
could better access existing and developed forms of IP including government contracts within a month of signing a contract
through the expanded use of compulsory licenses and parallel with the procuring entity also sign an obligation agreement
importation. There is no equivalent discussion on the manner where they commit to local economic activities. The ultimate
in which IP can be created, be commercialized, and become purpose of the NIP is to build local capacity and partnering
an industrial asset. For economies—emerging and developed between local South African companies and international
alike—the creation of new forms of intangible assets and IP industry leaders. In 2016, the government intensified both
are what will drive innovation, technological advances, and, these public procurement policies and the NIP framework, in
ultimately, economic development and growth. IP rights are a particular its localization requirements. For instance, the DTI
critical component of this. in the 2016 Industrial Policy Action Plan 2016-17-2018-19
outlined new policies that strengthen these requirements.
To begin with, the IPAP confirms the government’s
Copyrights, Related Rights, and Limitations objective (first outlined in the 2014 five-year plan Medium
12. Scope of limitations and exceptions to copyrights and Term Strategic Framework) of achieving a level of 75%
related rights: As mentioned in previous editions of the local procurement. Specifically, the DTI is strengthening
Index, South Africa is currently reforming its copyright law. cross-governmental enforcement activities and ensuring
Draft Copyright Act amendments were published in 2015 greater compliance and application of these localization
and made open to public consultations. These amendments requirements. The IPAP also, both more broadly and in the
contain numerous positive provisions relating to DRMs and sectoral focus-area discussions, places a heavy emphasis on
TPMs corresponding with those already contained in chapter the transfer of technologies from international rights holders
12 of the Electronic Communications and Transactions Act. to local companies. Conditioning market access and access
In addition, the proposed amendments also introduce a to opportunities for public procurement on local partnering
system of “fair use” exceptions to copyright. At the time requirements and the sharing or divulging of proprietary
of research, no final bill had been presented to the South technologies with local partners present significant barriers
African Parliament. However, in a separate development, to trade and impediment to investment.

[ 90 www.uschamber.com/ipindex ]
SOUTH KOREA Rank: 9/45

100
Patents
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 28.31
20
10 25
20 17.64
15.39
15

Enforcement 10
Trademarks
5
0
South Korea Median Regional
South Korea Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Patenting standards generally pro-innovation and in line with 7 Remaining hurdles in application of civil remedies, but legislative
international best practices, with crucial exceptions and judicial reform set to tackle them
3 Important strides in implementing U.S.-Korea Free Trade Agreement 7 Gaps in transparency and public reporting by customs authorities
(KORUS) commitments, but some ways to go in certain areas of trade-related IP infringement
3 Some improvement in government licensing of software 7 Not a contracting party to the Patent Law Treaty, although some
elements contained in the treaty are reflected in the Korean Patent
3 Relatively robust legal framework for trademark and industrial
Act
design protections
7 Some barriers to market access that discriminate against foreign
3 Enforcement environment progressing
IP owners

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 1
2. Patentability requirements 1 20. Industrial design term of protection 0.8
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 1
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.75
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 0.5
7. Regulatory data protection term 0.6 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 0.75 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.52
9. Term of protection 0.74 26. Software piracy rates 0.65
10. Exclusive rights 1 27. Civil and procedural remedies 0.75
11. Cooperative action against online piracy 1 28. Pre-established damages 0.75
12. Limitations and exceptions 0.75 29. Criminal standards 1
13. Digital rights management 1 30. Effective border measures 1
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0.25
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 0
18. Exclusive rights 0.75 35. Post-TRIPS FTA 1
TOTAL: 28.31

[ www.uschamber.com/ipindex 91 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores the protection of trademarks used in online settings by
explicitly recognizing electronic use as a statutory use
South Korea’s overall score has increased from 78% of the
of trademarks.
total possible score (with a score of 23.32 out of 30) in the
fourth edition of the Index to 81% (28.31 out of 35) in the fifth
edition. This increase in score is partly due to South Korea’s Trade Secrets and Market Access
accession to the Singapore Treaty on the Law of Trademarks and 24. Regulatory and administrative barriers to the
improvements in relation to indicator 2 on the patenting system commercialization of IP assets: In March 2016, the Korean
and indicator 14 on the use of licensed software in government Free Trade Commission issued a revised version of the
agencies. South Korea displays mixed scores in relation to the “Guidelines on the Unfair Exercise of IP Rights.” The previous
new indicators in the fifth edition; for instance, it has a relatively version was criticized for overregulating licensing and unduly
strong industrial design protection but faces gaps in customs limiting patent rights by considering de facto essential
reporting on IP infringement. patents as SEPs without any involvement or consent from
the owner, and for establishing ambiguous requirements
Patents, Related Rights, and Limitations and conditions under which such SEPs must be licensed
to interested parties. The new text provides a narrower
2. Patentability requirements: Patent amendments
definition of SEPs that does not include de facto standards,
that entered into force in 2016 streamlined the patent
which are to be reviewed separately. It also restricts the
application system overall, shortening the time frame for
definition of unfair refusal to license, limited to actions that
filing a request for examination from five to three years,
constitute a clear barrier to manufacturing, supplying, or
which is closer to the time frame in other jurisdictions
selling a given technology and the lack of substitutable
such as the EU. In addition, the Supreme Court upheld
technology. Hence, overall “abuse of licensing” is now
the patentability of second medical use claims in its 2016
viewed as exceptional and is limited significantly.
decision regarding a patent on the drug Lyrica. The case
also clarified patent law in respect to interpreting prior art,
in particular allowing for a more expansive and pragmatic Enforcement
understanding of prior art references and non-obviousness 27. Civil and procedural remedies: Civil Procedure Act
for life sciences inventions, where subject matter is relatively amendments that entered into force in January 2016
less predictable compared to other fields. centralized jurisdiction of IP rights (except for copyright
and trade secrets) both at first instance and at appeal
8. Patent opposition: At present, South Korea does not level. Patent infringement actions can now be filed in five
provide for an explicit patent opposition system; however, specialized district courts and not in any district court, and
inter partes invalidation actions before the IP Tribunal are appeals are addressed in the Patent Court. Consolidation
available following patent registration, with the average of authority in the Patent Court is expected to make
pendency reportedly about 10 months. Patent amendments injunctive relief and damages more clearly available and, as
introduced a new post-grant opposition system in South the Patent Court will rule on appeals to both infringement
Korea that will come into force in 2017 and is expected to and invalidity, preclude fragmentation when both types
help promote high-quality patents, streamline the system of proceedings run concurrently. Patent amendments also
further, and reduce costs and uncertainty. Under the new enhanced the availability of civil relief, shifting the burden
system, any person will be able to request the cancellation of proof in patent infringement litigation and damages
of a patent with the KIPTAB (Korean Intellectual Property assessment to the alleged infringer.
Trial and Appeal Board) within six months from grant of the
patent. Grounds will be restricted to prior art grounds and
an appeal will be available only to the patentee.

Trademarks, Related Rights, and Limitations

18. Legal measures available that provide necessary
exclusive rights to redress unauthorized uses of
trademarks: Trademark amendments that entered into
force in 2016 took some positive, mainly procedural
steps to enhance trademark protection, such as easing
the cancellation of unused marks as well as protecting
against bad faith registrations. They also better ensure

[ 92 www.uschamber.com/ipindex ]
SPAIN Rank: 11/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.48 27.61
20
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
Spain Median Regional
Spain Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Standard IP rights in legislation, including many sector-specific 7 Counterfeiting and piracy levels remain high compared to other EU
rights economies despite reforms
3 Efforts to strengthen and modernize patent and copyright 7 Gaps in patent system lead to a disproportionate volume of weak
frameworks in order to align with EU and international standards national patents
3 Civil and criminal reform enhances remedies available for IP 7 Online copyright regime displays important gaps in legislation
infringement (including in terms of ISP liability and exceptions to copyright) and,
although growing, inadequate action on the ground
3 Court decisions typically in line with ECJ jurisprudence in a number
of areas 7 Enforcement operations face significant delays and are often
nondeterrent, although improvements are visible

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 0.75 20. Industrial design term of protection 1
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.75
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.75
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 0.75
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.54
9. Term of protection 0.63 26. Software piracy rates 0.56
10. Exclusive rights 0.5 27. Civil and procedural remedies 0.75
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.5
12. Limitations and exceptions 0.5 29. Criminal standards 0.5
13. Digital rights management 0.75 30. Effective border measures 1
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 0.75 34. Patent Law Treaty 1
18. Exclusive rights 0.75 35. Post-TRIPS FTA 1
TOTAL: 27.48

[ www.uschamber.com/ipindex 93 ]
Spotlight on the National IP Environment

Patents, Related Rights, and Limitations lower rate of response (as low as 10% in 2015). In addition,
extreme delays reportedly exist within the IP Commission,
2. Patentability requirements: Spain’s patent law provides
with notices taking by some estimates over one year to
for standard patentability criteria of novelty, inventive step,
reach resolution.
and industrial application and is considered to be fairly pro-
technology in terms of the ability to patent biotechnology,
life sciences, and computer-related inventions, although Trademarks, Related Rights, and Limitations
some exceptions exist. In relation to life sciences inventions, 18. Legal measures available that provide necessary
patent amendments adopted in 2015 that will enter exclusive rights to redress unauthorized uses of
into force in 2017 fill in legislative gaps concerning the trademarks: Spain provides many standard legal measures
ability to patent new therapeutic applications for already to protect against infringement of trademarks that are
known substances and compositions. More generally, the enforceable through the commercial and criminal courts.
majority of patents in Spain are currently reviewed under Currently, invalidation proceedings are not available before
an abbreviated procedure where substantive examination the Spanish patent office. But under the new EU trademark
is optional, resulting in a relatively large volume of weak directive, Spain is required to put in place by 2023 an
patents and a high rate of invalidations and additional administrative procedure for opposition and invalidity
costs. Recognizing these barriers, under the new patent proceedings. Counterfeiting is a significant problem in
amendments formal substantive examination will be Spain: according to EUIPO data, Spain ranks fifth in the EU
required and a post-grant opposition system for national- for the intentional purchasing of counterfeits and is one of
level filings will be introduced. the top five economies in terms of economic impact from
fake or illicit alcohol, sports items, cosmetics, clothing,
Copyrights, Related Rights, and Limitations and toys.

10. Legal measures that provide necessary exclusive rights

preventing infringement of copyrights and related rights Enforcement
(including Web hosting, streaming, and linking); 11. 27. Civil and procedural remedies; and 29. Criminal
Availability of frameworks that promote cooperative standards including minimum imprisonment and
action against online piracy; and 12. Scope of limitations minimum fines: Generally speaking, enforcement through
and exceptions to copyrights and related rights: Spanish the courts is considered to be slow, such that by the time
copyright law provides basic exclusive rights to redress decisions are issued (if issued at all), the relevance of the
copyright infringement. During 2011–15, Spain introduced a ruling may be limited and ineffective. Standard remedies
major, multiyear legislative reform aimed at addressing high and penalties are available, although damages awarded are
levels of piracy, particularly in the online sphere. According often low relative to other EU member states. Amendments
to one study, nearly 90% of digital content is infringing, with to the criminal code in 2015 increased penalties for IP
growing consumption of unauthorized content particularly crimes, including for noncommercial infringement where
visible in the areas of TV, gaming, and sports. A 2016 study indirect and/or non-neutral benefit exists, and raised seizure
from the consultancy IDC also suggests a rate of 45% of and confiscation powers for judges and police. However,
illegal software use in businesses. Amendments to the even though IP specialization is growing, still greater IP
Intellectual Property Act and the Criminal Code in 2014–15 expertise and resources are needed by the judiciary as
do not entirely clarify liability of ISPs, criminalizing the act well as other enforcement bodies to effectively apply the
of facilitating in an active and non-neutral way but limiting new provisions.
liability for ISPs that provide merely technical intermediary
services. In addition, the Sinde Act of 2012 created a partial
notice and takedown system, whereby the Intellectual
Property Commission may receive notices from copyright
owners and determine which should be sent on to relevant
ISPs, who then should either block the identified content
within 72 hours of notice or the case is brought before a
court. Although the system is a positive step, data are mixed
regarding its effectiveness. According to the most recent
data from the Ministry of Education, as of mid-2015, close to
500 complaints had been filed, but just over half were sent
to ISPs (although of those notices, the government reports
a 90% response rate). Some rights holders report a much

[ 94 www.uschamber.com/ipindex ]
SWEDEN Rank: 5/45

100
Patents
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights 30.99
International Treaties 30
30 27.61
20
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
Sweden Median Regional
Sweden Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 New specialized IP appeal court expected to increase quality and 7 2016 court ruling in Bredbandsbolaget case severely limits rights
predictability of decisions holders’ recourse mechanisms for copyright infringement online
3 Strong and sophisticated national IP environment 7 Plain packaging discussions ongoing
3 Strong enforcement and guidelines on the use of licensed software
in government agencies

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 1 20. Industrial design term of protection 1
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 1
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.85
9. Term of protection 0.6 26. Software piracy rates 0.79
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.75
11. Cooperative action against online piracy 0 28. Pre-established damages 1
12. Limitations and exceptions 1 29. Criminal standards 1
13. Digital rights management 1 30. Effective border measures 1
14. Government use of licensed software 1 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 1
18. Exclusive rights 1 35. Post-TRIPS FTA 1
TOTAL: 30.99

[ www.uschamber.com/ipindex 95 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores that plain packaging would affect the rights provided
under the Swedish Freedom of the Press Regulation. In
Sweden’s overall score has decreased from 90.4% (27.12 out
October 2015, a judge concluded that introducing plain
of 30) in the fourth edition to 88.5% (30.99 out of 35) in the
packaging would require a constitutional change, as
fifth edition. Although this score reflects a strong performance
tobacco packaging is regarded as printed text and, as
in the 5 new indicators added in the fifth edition, the negative
such, is protected by freedom of the press rules. Following
developments in the availability of recourse mechanisms for
these public pronouncements, in September 2016 the
copyright infringement online have decreased Sweden’s score.
Parliamentary Media Constitution Committee did not
table a relevant amendment to the Freedom of the Press
Copyrights, Related Rights, and Limitations Act, believing it lacked the proper mandate to modify the
10. Legal measures that provide necessary exclusive rights Constitution. According to the procedure described by
preventing infringement of copyrights and related the committee, such constitutional change would need to
rights (including Web hosting, streaming, and linking); be approved twice under two different legislative terms,
and 11. Availability of frameworks that promote and could thus be introduced at the earliest in 2019. The
cooperative action against online piracy: Antipiracy introduction of plain or standardized packaging would
efforts have been further weakened in the country following significantly restrict the use of brands, trademarks, and
a landmark court decision establishing that ISPs have trade dress on retail packaging, undermining the benefits
no obligation to block access to pirate websites unless of trademarks to businesses and consumers alike, and
they provide “direct assistance” to the primary infringers. setting a negative precedent for IP policy. The passage
On this basis, the Stockholm District Court refused an of such legislation would decrease Sweden’s score on this
injunction against an ISP (Bredbandbolaget) to block access indicator from 1 to 0.
to two torrent sites. As outlined in previous editions of the
Index, the lawsuit was brought against Bredbandbolaget in Enforcement
2014 by the entertainment industry, seeking a court order
27. Civil and procedural remedies: A welcome development
to force the ISP to block its subscribers from accessing
is the launch of a new IP specialized court—the Patent
the Pirate Bay file sharing website and the Swefilmer
and Market Court—that will grant final decisions on all IP
streaming service (the latter of which was closed down in
litigation (further appeals to the Swedish Supreme Court
July 2015). The court’s decision was based on an evaluation
can be allowed only under exceptional circumstances). The
of Sweden’s implementation of the EU’s InfoSoc Directive
judicial reform is expected to further increase the quality
(Article 8.3) and on the complicity concept within the Penal
and predictability of IP decisions in Sweden as well as
Code (Article 53b). Notably, the court provided for a narrow
shorten the time and costs of proceedings. One of the most
scope of protection for Swedish rights holders under the
awaited decisions the court will have to handle is the appeal
terms of Article 8(3) of the InfoSoc Directive, according to
in the above-mentioned Bredbandbolaget case.
which EU member states shall make available injunctions
against intermediaries used by third parties to infringe IP
rights. The court concluded that, although Swedish law is
phrased in a more restrictive way than the EU Directive, it
still complies with it given that the possibility of injunction
is not illusory. By in effect removing virtually any copyright
infringement responsibility from ISPs, this judgment
severely restricts the means by which copyright holders can
enforce their rights online. As a result, Sweden’s score has
declined on this indicator.

Trademarks, Related Rights, and Limitations

16. Discrimination/restrictions on the use of brands in the
packaging of different products: In February 2016, the
Swedish Tobacco Directive Inquiry published its review
of the Swedish Tobacco Act, presenting proposals on
how to curb tobacco use. The review mentioned plain
packaging as an effective tool to this effect, but it noted

[ 96 www.uschamber.com/ipindex ]
SWITZERLAND Rank: 7/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights 29.86
International Treaties 30
30 27.61
20
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
Switzerland Median Regional
Switzerland Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Strong and sophisticated national IP environment 7 Overly broad interpretation of limitations and exceptions for
copyright
3 Strong patent rights and enforcement environment
7 Crucial gaps in enforcement and prosecution of online copyright
3 All biopharmaceutical IP rights in place
infringement

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 1 20. Industrial design term of protection 1
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 1
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.71
9. Term of protection 0.63 26. Software piracy rates 0.77
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.75
11. Cooperative action against online piracy 0.5 28. Pre-established damages 0.75
12. Limitations and exceptions 0.25 29. Criminal standards 0.75
13. Digital rights management 0.5 30. Effective border measures 1
14. Government use of licensed software 1 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 1
18. Exclusive rights 1 35. Post-TRIPS FTA 1
TOTAL: 29.86

[ www.uschamber.com/ipindex 97 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores not react quickly to limit damages that infringers cause. The
latest draft text also adds additional hurdles. For instance,
Switzerland’s overall score has increased from 83% (24.90 out
in the current text, rights holders should reimburse ISPs
of 30) in the fourth edition to 85% (29.86 out of 35) in the fifth
the cost of their interventions. It also mentions that rights
edition. This increase in score reflects a strong performance in
holders can ask the IP Office to block access to infringing
the 5 new indicators added in the fifth edition.
content, but both ISPs and content owners can suspend
the measures by appealing without having to prove the
Patents, Related Rights, and Limitations content’s legality (Article 66(d)). The draft amendments do
8. Patent opposition: Since 2008, Switzerland has in place not effectively address the issue of private use exceptions
a patent opposition system that, similar to the European (Articles 19 and 43). As a result of its lack of progress on
Patent Office (EPO), is available to any third party for nine providing strong enforcement mechanisms to rights holders,
months after the patent is granted. The Swiss Patent Federal Switzerland was added to the USTR’s 2016 Special 301
Court has streamlined procedures that ensure a relatively Report and listed as a “Priority Watch List” country.
quick and efficient process. Oppositions are allowed on
the basis of non-patentable inventions per Articles 1(a) and
1(b) of the Swiss Patent Statute (the human body and its
elements and sequences of genes), as well as inventions
whose application would be contrary to public morality. The
Patent Office can decide to revoke or uphold the patent
fully or partially.

Copyrights, Related Rights, and Limitations

11. Availability of frameworks that promote cooperative
action against online piracy; 12. Scope of limitations and
exceptions to copyrights and related rights; and 13.
Digital rights management (DRM) legislation: As outlined
in previous editions of the Index, a lack of online copyright
enforcement has persisted in Switzerland since the 2010
Logistep ruling exposed the uncertainties of the current
legal regimes and de facto made it legal to download
from infringing websites by preventing the collection
of infringers’ IP addresses over personal data concerns.
Furthermore, under existing rules and interpretation, a
wide copyright exception allows Internet users to legally
download any content for private use, even from an illegal
source. A draft copyright law was presented for public
discussion in December 2015 but, given the more than
1,200 contributions received, is undergoing further review
by a new multistakeholder group (AGUR12 II) building
on the work done by the first AGUR12 group. Indeed,
the first group’s work only partially filled in the current
gaps, and it added new concerns as well. The proposed
recommendations reaffirmed the admissibility in court of
data about copyright violations collected by rights holders,
but limited this possibility to serious breaches and peer-to-
peer (P2P) network activities (Article 66(j)). It also set up a
limited mechanism for ISPs to send warning notifications to
users engaged in infringing activities. At the third notice,
courts would be allowed to transmit the infringer’s name
to the rights holder, who would have to start civil actions
(Article 66(g)). In addition to being costly, this system would

[ 98 www.uschamber.com/ipindex ]
TAIWAN Rank: 18/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20.59
20 17.64
15.39
15

Enforcement 10
Trademarks
5
0
Taiwan Median Regional
Taiwan Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Overall, adequate legislative framework for patent protection, 7 Major holes in digital copyright regime, notably with regard to
including for sector-specific rights foreign websites
3 Generally fair licensing and IP-related market access conditions 7 Relatively high rates of online piracy and physical counterfeiting
(with some exceptions)
7 Protection for unregistered well-known marks only partially
3 Although facing political hurdles to becoming a contracting party, provided
has in many cases implemented provisions in key international IP
7 Weak judicial enforcement of IP rights
treaties
3 Relatively high level of transparency and public reporting by
customs authorities of trade-related IP infringement

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 0.75 20. Industrial design term of protection 0.48
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 0.75
4. Pharmaceutical-related enforcement 0.25 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 0.75 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.69
9. Term of protection 0.53 26. Software piracy rates 0.64
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0.25 28. Pre-established damages 0.25
12. Limitations and exceptions 0.5 29. Criminal standards 0.25
13. Digital rights management 0.5 30. Effective border measures 0.5
14. Government use of licensed software 0 31. Transparency and public reporting by customs 0.75
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0.75
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0.5
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0.5
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0
TOTAL: 20.59

[ www.uschamber.com/ipindex 99 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Copyrights, Related Rights, and Limitations
Taiwan’s overall score has increased from 49% of the total 10. Legal measures that provide necessary exclusive rights
possible score (with a score of 14.79 out of 30) in the fourth preventing infringement of copyrights and related
edition to 59% (20.59 out of 35) in the fifth edition. This increase rights (including Web hosting, streaming, and linking):
reflects enhancements to the patent review system (indicator 2) Although a comprehensive copyright reform is still under
and a fairly strong performance on many of the new indicators review by the government, amendments submitted to the
added in the fifth edition, including ability to commercialize Legislative Yuan in 2016 take some steps to extend the
IP assets and customs transparency. Taiwan’s score also rose scope of copyright protection, for instance by criminalizing
in the fifth edition due to a change in the system for scoring circumvention of TPMs, adding protection for encrypted
Taiwan on its membership in international treaties. Taking into program-carrying satellite and cable signals, and allowing
consideration political hurdles to its becoming a contracting for some crimes to be charged without a complaint.
party to WIPO-administered treaties included in the Index, However, the amendments fall short of tackling other,
Taiwan is now scored based on implementation of core elements fundamental gaps in the online copyright sphere and
of those treaties, a number of which are present in its legislation. of fully aligning with international standards in areas
such as camcording and foreign-hosted sites, among
other elements.
Patents, Related Rights, and Limitations
2. Patentability requirements: In the context of an
accelerated examination program and PPHs with the U.S.,
Japan, and, since 2015, South Korea, average patent review
time shrank to less than 24 months in late 2015/2016,
from over 47 months in 2012. The average review time
of applications filed under the above-mentioned PPHs
was about 135 days in 2016 (as of the time of research).
In addition, in 2016, Taiwan reviewed its main IP laws,
reportedly ahead of a potential TPP accession. Proposed
amendments to the Patent Act under review by the
Legislative Yuan would further strengthen the already pro-
technology patenting framework by extending the grace
period for filing a patent to 12 months.

4. Pharmaceutical-related patent enforcement and

resolution mechanism; and 7. Regulatory data protection
(RDP) term: Proposed amendments to the Patent Act and
Pharmaceutical Affairs Act appear to address some of the
main shortcomings of the current life sciences IP system.
If adopted, they would introduce a patent enforcement
mechanism based on the creation of a comprehensive
patent list for new drugs. Generic applications would be
required to include relevant patent information and notify
patent holders in instances where they consider listed
patents un-infringed or invalid, in order to streamline
dispute proceedings. Under the amendments, the Taiwan
Food and Drug Administration would stay generic market
approval for 15 months after an infringement suit is filed.
The amendments would also make 3 years of RDP available
to drugs approved for a new indication.

[ 100 www.uschamber.com/ipindex ]
THAILAND Rank: 40/45
Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.64
15.39
15
9.53
Enforcement 10
Trademarks
5
0
Thailand Median Regional
Thailand Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic level of protection and registration system in place for 7 Inadequate patent protection, with holes in patentability and
copyrights, trademarks, and designs severe patent backlogs (although proposed reform seeks to
address the delays)
3 Partial attempts to adjust copyright legislation to new technological
developments 7 Life sciences IP rights inconsistent with TRIPS and history of
compulsory licenses
3 Elemental legal framework for enforcement of IP rights
7 Incomplete digital copyright regime and hurdles to effective
3 Some improvement in customs’ anticounterfeiting actions implementation of new website blocking system
7 Barriers to market access for patent holders and red tape and
additional costs for the commercialization of IP assets
7 Very high physical counterfeiting and digital piracy rates
7 Weak IP rights enforcement due to delays, lack of resources, and
nondeterrent sentences

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.25 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.29
9. Term of protection 0.53 26. Software piracy rates 0.31
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0.5
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0.75
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 9.53

[ www.uschamber.com/ipindex 101 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores and trade dress on retail packaging, undermining the
benefits of trademarks to businesses and consumers alike,
Thailand’s overall score has increased from 25% of the total
and setting a negative precedent for IP policy.
possible score in the fourth edition (with a score of 7.40 out
of 30) to 27% (9.53 out of 35) in the fifth edition. This result
18. Legal measures available that provide necessary
reflects some strengths in the new indicators added in the fifth
exclusive rights to redress unauthorized uses of
edition, including indicator 31 on custom transparency, and an
trademarks: In 2016, Thailand enacted amendments to
improvement in indicator 30 on border measures combating
the Trademark Act aimed at bringing its provisions in line
counterfeiting and physical piracy.
with the Madrid Protocol, of which the country is seeking
to become a member. The amendments clarify some
Patents, Related Rights, and Limitations procedural aspects and potentially shorten prosecution
2. Patentability requirements; and 8. Patent opposition: time by reducing the time period for responding to DIP
The Department of Intellectual Property (DIP) continues actions and oppositions. In addition, they broaden the
to face long backlogs, estimated at 38,500 for patents as scope of protection by allowing multiple-class filing and
of mid-2016. It takes on average 5 to 9 years for a patent registration of sound marks, as well as by extending the
to be granted, particularly for life sciences inventions and search of similar and identical trademarks to all classes (at
patents submitted through the PCT route. Against this present, it is limited to the one where the application was
backdrop, proposed patent amendments would replace the filed). Importantly, the amendments also criminalize refilling
pre-grant opposition system with a time-limited post-grant (that is, passing off unauthorized content as legitimate using
system, and would shorten the time to request substantive original, branded packaging).
examination from 5 to 3 years. A Board of Invalidation would
be set up within DIP to manage post-grant opposition Enforcement
procedures. As an additional measure aimed at reducing the
27. Civil and procedural remedies: In 2016, a new Specialized
patent backlog, DIP also unveiled plans to triple the number
Appeals Court was established in Thailand in an effort to
of examiners, currently at only about 40. Nevertheless,
reduce the backlog and strengthen civil proceedings in
the proposed amendments do not address key challenges
lower courts. Nevertheless, other barriers to securing relief
about patentability criteria, notably in relation to life
through the civil system remain unaddressed, such as the
sciences patents.
limited availability of damages, with the result that civil
cases are rarely pursued by IP rights holders.
Copyrights, Related Rights, and Limitations
14. Clear implementation of policies and guidelines requiring 30. Effective border measures: A potential loophole exists in
that any proprietary software used on government ICT relation to in-transit actions introduced in custom legislation
systems should be licensed software: In late 2015, the in 2015 that could limit the inclusion of IP within the remit of
Thai Securities and Exchange Commission was reportedly illegal goods because the transshipment of infringing goods
the first ASEAN public body to implement software asset is not expressly prohibited in IP law (only importation is).
management practices. While positive, this remains an However, positively, available preliminary evidence suggests
isolated example in a context of general high rates of that customs officials are interpreting the new provision to
unlicensed software. include counterfeit goods. On this basis, Thailand’s score for
this indicator increased by 0.25.

Trademarks, Related Rights, and Limitations

16. Discrimination/restrictions on the use of brands in
the packaging of different products: The Tobacco
Consumption and Control Act, currently under consideration
by the Council of State, proposes removing all branding
from cigarette packages, save the brand name in small print.
In addition to impinging on trademark rights, the measures
would make it harder to fight counterfeit tobacco goods,
further aggravating an already serious problem in Thailand.
The introduction of such a measure applied to any industry
would significantly restrict the use of brands, trademarks,

[ 102 www.uschamber.com/ipindex ]
TURKEY Rank: 22/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.61
20
10 25
20
15.80 15.39
15

Enforcement 10
Trademarks
5
0
Turkey Median Regional
Turkey Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Incrementally greater alignment of IP legal framework for major IP 7 Weak protection and enforcement of life sciences patents
rights with EU standards, including via proposed IP amendments
7 Opaque online copyright environment and overly broad copyright
3 Basic general remedies and penalties for IP infringement available exceptions
in legislation
7 High counterfeiting and online piracy rates
3 Relatively few barriers in existing technology transfer and licensing
7 Major gaps in practical judicial recourse and border control
framework, although barriers exist in practice

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 1
3. Patentability of CIIs 0.5 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0.25
7. Regulatory data protection term 0.6 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.29
9. Term of protection 0.74 26. Software piracy rates 0.42
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0.25 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0.5
14. Government use of licensed software 0.5 31. Transparency and public reporting by customs 0.75
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0.5
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0.5
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 15.80

[ www.uschamber.com/ipindex 103 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trademarks, Related Rights, and Limitations
Turkey’s overall score has increased from 40% of the total 16. Discrimination/restrictions on the use of brands in the
possible score (with a score of 11.87 out of 30) in the fourth packaging of different products: In 2012, the Turkish
edition of the Index to 45% (15.80 out of 35) in the fifth edition. Parliament approved amendments to the Law on the
This increase in score is mainly a result of a relatively strong Prevention and Control of Hazards of Tobacco Products
performance on some of the new indicators added in the (Law 4207), which banned the use of brands, signs, and
fifth edition, including in relation to the term of industrial other promotional elements on packages and labels on
design protection and customs reporting on trade-related tobacco products. Implementing regulations under the
IP infringement. National Tobacco Control Program Action Plan 2015–18,
which, among other elements, would have introduced
“black packaging” (black cigarette boxes without brands or
Patents, Related Rights, and Limitations
logos), were considered in 2016. However, prior to approval,
2. Patentability requirements: In 2016, draft legislation that the plain packaging measures were removed from the
consolidates all IP Decree-Laws into a unified IP Code was draft regulation, reportedly on the basis that the measures
under consideration in the Turkish Parliament. Overall, the would conflict with trade laws. As a result, Turkey’s score
text seeks to clarify certain elements (such as the defendant increases to 1 for this indicator in the fifth edition of the
bearing the burden of proof in patent proceedings) and to Index. Nevertheless, given that new Health Minister Akdag
harmonize the IP legal framework to international standards, has indicated he may reconsider the introduction of plain
such as the European Patent Convention (EPC) provisions. packaging regulations, developments in this area may affect
However, important divergences from EU standards remain Turkey’s score for indicator 16 in future editions of the Index.
with regard to life sciences inventions, including inadequate
clarity on the ability to patent second medical uses and 18. Legal measures available that provide necessary
biotechnologies, that result in a narrow interpretation by exclusive rights to redress unauthorized uses of
some IP Courts. In 2016, the Istanbul IP Court refused trademarks: The draft IP Code would address some of the
to follow a landmark decision by the Court of Appeal legislative gray areas in trademark protection and increase
upholding the patentability of second use patents. guarantees that confusingly similar trademarks will not be
registered, for instance by explicitly protecting unregistered
8. Patent opposition: The draft IP amendments also seek to well-known marks and providing legal ground for nonuse
align with the EU by introducing a post-grant opposition defense in trademark opposition. It will also extend the
system, replacing the current pre-grant system, but the scope of infringement to include acts such as possessing or
new system does not fully close loopholes and hurdles warehousing counterfeits. However, the reform only partially
in the existing patent adjudication system, leading to tackles the main concerns of rights holders with regard
remaining uncertainty for patent holders. Under Decree to inconsistent and weak judicial enforcement, including
551, patents can be invalidated by courts, a setting where difficulty obtaining warrants, varying standards for evidence
patent holders have little recourse and no way to amend collection, inconsistent remedies, and rare application of
patent applications, even when opposition proceedings criminal charges.
are ongoing at the EPO. Consequently, a high number of
patent invalidations or partial invalidations in Turkey may 20. Industrial design term of protection; and 21. Legal
conflict with EPO decisions. The draft IP Code does not measures available that provide necessary exclusive
fully address the inability to amend claims after grant within rights to redress the unauthorized use of industrial
the new post-grant opposition system, and may thus be design rights: Turkish law currently includes a 25-year total
inadequate to curb the rate of invalidations. The timelines term of design protection, in line with the EU. However,
are tight for amending a claim within the scope of an Turkey is not aligned with the EU in other areas, such as
opposition (six months, compared to nine months before in relation to the protection of unregistered designs. The
the EPO). In addition, national invalidation proceedings will ongoing IP revamp would better align design provisions to
not necessarily be stayed if an ongoing opposition is taking the EU framework by granting a 3-year term of protection
place at the EU level (thus limiting the ability to amend specifically for unregistered designs. In addition, the reform
claims on European patents). redresses a current legal gap and reimposes criminal liability
on design infringers.

[ 104 www.uschamber.com/ipindex ]
UKRAINE Rank: 30/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30 27.61
20
10 25
20
15.39
14.06
15

Enforcement 10
Trademarks
5
0
Ukraine Median Regional
Ukraine Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Efforts to align IP legislation to EU standards and implement Deep 7 Rudimentary framework for trademarks and design protection does
and Comprehensive Free Trade Agreement (DCFTA) not provide guarantees against unfair use (with exceptions)
3 Some improvement in enforcement of life sciences patents by 7 Among the highest rates of counterfeiting and piracy worldwide;
courts, although key gaps exist currently relatively little effort to combat
3 Emphasis on strengthening online copyright environment in 7 Generally poor environment for IP enforcement online (lengthy,
the area of cooperative action against online piracy and the nondeterrent proceedings)
appropriate balance of exceptions to copyright
7 Gaps in customs activities, notably lack of effective procedures for
3 Contracting party to certain key international IP treaties destruction of counterfeits

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 0 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0.25 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 0.25
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 0.25
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.2
9. Term of protection 0.58 26. Software piracy rates 0.18
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0.25 28. Pre-established damages 0
12. Limitations and exceptions 0.5 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 0.5 34. Patent Law Treaty 1
18. Exclusive rights 0.25 35. Post-TRIPS FTA 1
TOTAL: 14.06

[ www.uschamber.com/ipindex 105 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores shortcomings of judicial and customs measures remain
on hold. The draft law “On Amendments to Certain
Ukraine’s overall score has increased slightly from 39% of the
Legislative Acts of Ukraine Concerning the Strengthening
total possible score in the fourth edition (with a score of 11.55
of the Protection of IP Rights,” developed by the Ministry
out of 30) to 40% (14.06 out of 35) in the fifth edition. This
of Economic Development, would raise fines for criminal
increase in score reflects small but positive improvements
IP infringement from USD17,000 to USD255,000, and
in certain areas, including life sciences patent enforcement,
double them to a maximum of UAH6800 (USD260) for
cooperative action against online piracy, fair and balanced
administrative offenses. The bill, along with other draft
exceptions to copyright, and protection of well-known marks.
measures, could also provide judicial authorities with
greater authority over the confiscation and destruction of
General Note infringing goods and the tools used for their production.
Ukraine adopted proposals for revamping the current IP Apart from legislation, in 2016, the recently created Cyber
administrative structure and introducing a more independent Police Department in a joint operation with U.S. and UK
and better-staffed National Agency for IP to replace the State enforcement shut down the second most popular torrent
IP Service. If implemented, the reform would also involve a website worldwide, which was run in Ukraine. In addition,
reorganization of the collective administration system, aimed at the department took down one of the country’s major pirate
replacing the current 19 collective management organizations movie websites. Also in 2016, the National Police signed a
with a single agency, improving transparency and helping to Memorandum of Understanding with the media community
bring the system in line with EU standards. launching a joint antipiracy initiative based on technical
assistance and information exchange.
Copyrights, Related Rights, and Limitations
11. Availability of frameworks that promote cooperative
action against online piracy; and 12. Scope of limitations
and exceptions to copyrights and related rights:
Copyright amendments were adopted in 2016 within the
Law on State Support for Cinematography, Bill 3081d
(although at the time of research, the bill had not yet been
signed into law). The bill notably introduces a notice and
takedown system whereby a rights holder may send a notice
of infringing content to an ISP, which has 48 hours to block
the content. However, the provisions entail a very in-depth
process requiring complex documentation along with rules
that may render the system difficult to use effectively. The
bill also introduces a liability clause safeguarding ISPs
that take down the designated content within 48 hours
of receipt. In addition, the bill partially closes loopholes
regarding camcording and Internet piracy by adding them
to the list of infringements identified in the Copyright Act.
The bill also amends the Criminal Code to criminalize the
act of camcording.

Enforcement
27. Civil and procedural remedies; and 29. Criminal
standards including minimum imprisonment and
minimum fines: In 2016, Ukraine’s Parliament adopted
legislation establishing IP first instance courts by 2017, a
development that could help raise IP expertise among the
judiciary, streamline proceedings, and improve transparency
and accountability. This reform of the judicial system will
also bring about a separate judgment execution process
with private enforcement officials, which might also enhance
opportunities for securing judgments. However, other
draft bills that would tackle some of the major remaining

[ 106 www.uschamber.com/ipindex ]
UNITED ARAB EMIRATES Rank: 24/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20
15.24 15.39
15 13.73

Enforcement 10
Trademarks
5
0
United Arab Median Regional
United Arab Emirates Trade Secrets and Market Access Emirates Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic IP protections in place, including sector-specific rights, 7 Important loopholes in protection for life sciences patents, notably
although key gaps exist in relation to RDP and patent term restoration
3 Relatively strong framework for enforcement of IP rights, 7 Copyright regime fails to address growing piracy levels
particularly criminal prosecution
7 Partial protection under the current trademark and design
3 Increasing administrative and judicial capacity for IP enforcement framework, but in need of updating
3 Enhanced anticounterfeiting efforts, including police and 7 Gaps in customs measures and judicial enforcement, notably civil
customs seizures and public-private engagement on e-commerce remedies
threats

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.25
2. Patentability requirements 0.5 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0.5 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 1 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.4
9. Term of protection 0.53 26. Software piracy rates 0.66
10. Exclusive rights 0.5 27. Civil and procedural remedies 0.5
11. Cooperative action against online piracy 0 28. Pre-established damages 0
12. Limitations and exceptions 0.5 29. Criminal standards 0.5
13. Digital rights management 0.5 30. Effective border measures 0.25
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.5 34. Patent Law Treaty 0
18. Exclusive rights 0.75 35. Post-TRIPS FTA 0
TOTAL: 15.24

[ www.uschamber.com/ipindex 107 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Trademarks, Related Rights, and Limitations
The UAE’s overall score has increased from 41% of the total 17. Ability of trademark owners to protect their trademarks:
possible score (with a score of 12.43 out of 30) in the fourth requisites for protection: In the context of limited case law
edition to 44% (15.24 out of 35) in the fifth edition. This increase and lack of clarity in legislation, a precedent-setting decision
in score mainly results from some improvements to DRM by the Federal Supreme Court upheld well-known mark
legislation and the protection of well-known marks, as well as protection, including for unregistered marks, and provided
moderate performance on some of the new indicators added in greater clarity on requirements for establishing notoriety. In
the fifth edition of the Index. a blatant bad faith case, in which an individual attempted
to register a well-known restaurant trademark, the court
defined famous brands as those used and registered in at
Patents, Related Rights, and Limitations
least three other countries. It also established that prior use
2. Patentability requirements: Following the introduction should be demonstrated through actual commercial activity
of online trademark registration in 2015, in 2016, the such as marketing and distribution in the UAE, and that bad
Ministry of Economy, with support from the Korean IP faith can be a basis of action (despite not being in law) in
Office, launched a trial digital system for processing patents clear cases of an illegitimate mark.
and designs and discussed the creation of a dedicated
Patent Examination Center. The new application process is
expected to shorten delays for examination, which currently Trade Secrets and Market Access
takes five years on average. 23. Barriers to market access; and 24. Regulatory and
administrative barriers to the commercialization of IP
3. Patentability of computer-implemented inventions (CIIs): assets: A draft investment law currently under consideration
Patenting of CIIs may be pursued today in the UAE as long would remove the 49% foreign equity cap in certain sectors
as such inventions are linked to a hardware and drafted as where further investment and technology are needed.
a technical solution to a technical problem, provided that At present, barriers to foreign ownership and licensing
the other criteria for patentability are satisfied. Enhancing hinder efforts to move toward a more knowledge-intensive
the development of ICTs is a significant focus across economy. For instance, individual licensing authorities exist
several pillars of a recent government initiative to promote for each of the over 30 free zones, which can adopt their
innovation and competitiveness in science and technology. own competition rules, and regulations lack an effective
This initiative includes a dedicated focus on enabling the framework for collecting royalties and licensing fees as well
patenting and commercialization of IP assets, including in as (specifically for the music sector) a collection society for
relation to computer-implemented technologies, through, copyright holders.
for instance, a new fund of over USD500 million (Dh2
billion). According to international patenting statistics, today
Enforcement
a relatively large number (about 7%) of patent applications
in the UAE are in computer technology. 27. Civil and procedural remedies: Ministerial Resolution
137/2016 created a specialized judicial department,
intended not as a full-fledged court but as a group of
Copyrights, Related Rights, and Limitations specialized judges, within the UAE Federal Court system
13. Digital rights management (DRM) legislation: Federal to handle IP disputes. Specialized judges will deal with
Law 12/2016 increased penalties in one area of TPM federal issues, such as cancellation acts, but infringement
protection: use of fraudulent computer network protocol and other IP actions will remain within the remit of emirate-
addresses (including virtual private networks, or VPNs) to level courts. The first dedicated IPR Court Circuit was
bypass copyright protection; for instance, by accessing set up in 2016 at the Abu Dhabi Court of First Instance.
content broadcasted abroad and not licensed for the The increased specialization is expected to speed up the
UAE. Penalties now include imprisonment and fines of handling of litigation before the courts and could increase
AED500,000–2,000,000 (about USD135,000–545,000), up the availability of effective civil remedies such as injunctions,
from AED150,000–500,000. which are currently rarely secured.

[ 108 www.uschamber.com/ipindex ]
UNITED KINGDOM Rank: 2/45

100
Patents
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35 32.39
50
40
Copyrights
International Treaties 30
30 27.61
20
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
United Median Regional
United Kingdom Trade Secrets and Market Access Kingdom Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Strong and sophisticated national IP environment 7 Plain packaging regulations published and introduced
3 2016 saw a dedicated push by UK government to step up the fight
against online piracy
3 Overall strong cross-sectoral enforcement environment highlighted
by the work of a specialist crime unit and cross-industry and
government cooperation
3 IP environment supported by wide-ranging educational and
pro-innovation activities and policies

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 1
2. Patentability requirements 1 20. Industrial design term of protection 1
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 1
4. Pharmaceutical-related enforcement 0.5 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 1 24. Regulatory and administrative barriers to commercialization 0.75
8. Patent opposition 1 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.73
9. Term of protection 0.63 26. Software piracy rates 0.78
10. Exclusive rights 1 27. Civil and procedural remedies 1
11. Cooperative action against online piracy 1 28. Pre-established damages 1
12. Limitations and exceptions 1 29. Criminal standards 1
13. Digital rights management 1 30. Effective border measures 1
14. Government use of licensed software 1 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 0 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 1
18. Exclusive rights 1 35. Post-TRIPS FTA 1
TOTAL: 32.39

[ www.uschamber.com/ipindex 109 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores Infringement Trackers,” published in June 2016, registered
the lowest rate of illegal access since the study started
The UK’s overall score has increased from 91.8% (27.53 out of
in 2011, with 15% of Internet users illegally accessing
30) in the fourth edition to 92.5% (32.39 out of 35) in the fifth
illegal material. Furthermore, as reported in the annual IP
edition. This increase in score reflects a strong performance on
Crime Report (also published by the IPO), more than 100
the 5 new indicators added to the fifth edition.
million URLs were submitted to ISPs for removal of links to
infringing content between January 2015 and March 2016.
General Comments Moreover, during a similar time period, the City of London’s
Despite the uncertainty raised by the results of the June Police Intellectual Property Crime Unit took down 11,000
2016 referendum to leave the EU, the UK remains one of the sites offering counterfeits. The unit has also expanded
highest-rated economies in the Index with a strong national its enforcement activities and implemented a “follow the
IP environment and particular strengths in the enforcement money” approach by launching the Infringing Website List
category. At the time of research, the UK government had that advertisers, agencies, and other intermediaries can
not triggered Article 50 of the Lisbon Treaty that will launch check before deciding where to place their ads. The aim
negotiations on a withdrawal agreement. EU treaties will cease is to reduce advert placement on illegal websites in order
to apply to the UK two years after notification of Article 50, to disrupt and diminish their advertising revenue. Against
expected to happen in early 2017. While it is not expected that this background of existing strong enforcement activity, the
this will affect the level of protection granted under the current Digital Economy Bill introduced in Parliament in July 2016
British IP system, there is currently not a great deal of detail proposed to increase the maximum sentences for online
regarding the administration and legal frameworks that will copyright infringement from 2 to 10 years, to bring remedies
replace current EU-level regulations in the UK. The unfolding of on par with those applying to physical counterfeiting. These
this process over the upcoming years will be closely monitored initiatives together underline the seriousness with which UK
and tracked in the Index. The UK government did confirm in policymakers are treating the piracy phenomenon and the
November 2016 that the UK would ratify the agreement on the positive steps they are taking in trying to tackle it.
Unified Patent Court. This is an important step in the effective
enforcement of patent rights within contracting states. 12. Scope of limitations and exceptions to copyrights and
related rights: In November 2015, the UK government
Copyrights, Related Rights, and Limitations announced it would scrap the private copy exception
that was introduced in 2014 and renounced to table new
10. Legal measures that provide necessary exclusive rights proposals to legalize private copying. The announcement
preventing infringement of copyrights and related rights followed a decision by the Court of Justice of the European
(including Web hosting, streaming, and linking): In May Union in the case of Hewlett Packard Belgium SPRL v.
2016, the British government unveiled plans to step up IP Reprobel SCRL, in which the court offered guidance on
enforcement efforts in its five-year strategic policy paper how national private copying laws should be drafted. It
IP Enforcement 2020. Specifically, the document targets also comes after the London High Court declared the
the reduction of online piracy as a top priority up to 2020. 2014 scheme unlawful for lacking adequate evidential
The current system requires rights holders to monitor basis that the exception would cause only minimal harm to
P2P networks, capture evidence, and send it through to rights holders, as claimed by the government. In 2016, the
their ISP, which will then send an “alert to the subscriber” ECJ continued to provide guidelines on implementation
via IP address tracking. According to the document, the by member states of the “fair compensation” concept
government is reviewing this system to improve and to copyright holders foreseen by the InfoSoc Directive,
streamline the process and is considering the scope for an notably by establishing that it cannot be funded by a
additional mechanism of notice and trackdown that would general state budget (EGEDA case). In separate news,
enable rights holders to take action directly against the the draft Digital Economy Bill would repeal an outdated
identified infringers. While the exact scope of the initiative copyright provision on cable television (section 73 of the
has not been further detailed, the stated overall objective is Copyright, Patent and Design Act), closing the loophole
to enhance protection for rights holders. The strategy also that providers of Internet-based live streaming services
promises to introduce a code of practice for intermediaries used to profit from retransmitting public service broadcast
and to tackle unauthorized streaming from set-top content over the Internet.
boxes, an issue whose legal status is currently blurred
in most EU countries. Illustrating the already significant
progress that has been made against online piracy, the
Intellectual Property Office’s (IPO’s) study “Online Copyright

[ 110 www.uschamber.com/ipindex ]
UNITED STATES Rank: 1/45

100
Patents
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 50
35 32.62
40
Copyrights
International Treaties 30 30 27.03
20
10 25
20
15.39
15

Enforcement 10
Trademarks
5
0
United Median Regional
United States Trade Secrets and Market Access States Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Key IP rights, including sector-specific rights, in place 7 Patent opposition system adds substantial costs and uncertainty
3 Largely supportive technology transfer and licensing environment 7 Somewhat narrow interpretation of patentability of biotech and
computer-related inventions compared with international
3 Generally deterrent civil and criminal remedies
standards
3 Commitment to and implementation of international treaties
7 Inconsistent enforcement against counterfeit and pirated goods,
especially goods sold online

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.75
2. Patentability requirements 0.75 20. Industrial design term of protection 0.6
3. Patentability of CIIs 1 21. Exclusive rights, industrial design rights 1
4. Pharmaceutical-related enforcement 1 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 1 22. Protection of trade secrets 1
6. Pharmaceutical patent term restoration 1 23. Non-barriers to market access 1
7. Regulatory data protection term 0.75 24. Regulatory and administrative barriers to commercialization 1
8. Patent opposition 0.5 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.69
9. Term of protection 1 26. Software piracy rates 0.83
10. Exclusive rights 1 27. Civil and procedural remedies 1
11. Cooperative action against online piracy 1 28. Pre-established damages 1
12. Limitations and exceptions 1 29. Criminal standards 1
13. Digital rights management 1 30. Effective border measures 0.75
14. Government use of licensed software 1 31. Transparency and public reporting by customs 1
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 1
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 1
17. Protection of well-known marks 1 34. Patent Law Treaty 1
18. Exclusive rights 1 35. Post-TRIPS FTA 1
TOTAL: 32.62

[ www.uschamber.com/ipindex 111 ]
Spotlight on the National IP Environment

Past Editions versus Current Scores EPO. The second and most commonly used mechanism
since the AIA is the inter partes review, available after the
The United States’ overall score has dropped slightly from 95%
above window for a post-grant review; requests that are
(with a score of 28.61 out of 30) to 93% (with a score of 32.62
accepted for an IPR review must be issued within 18 months.
out of 35). This decrease in score is mainly due to challenges,
Both proceedings occur before a specialized Patent Trial
additional cost, and uncertainty in the patent opposition system
and Appeals Board (PTAB) within the USPTO and composed
in place since 2011, compared with other post-grant opposition
of administrative patent judges. Despite the intention of
systems (discussed below in relation to the new indicator on
the new opposition mechanisms, the ease of challenging
patent opposition).
patents during the post-grant period, particularly via inter
partes review, has led to a high rate of trials (particularly for
Patents, Related Rights, and Limitations life sciences claims) and of rejections (between 40% and
2. Patentability requirements: In 2016, as part of its ongoing 65% depending on the type of technology), with challenges
effort to develop guidance on recent key Supreme Court considered by some experts to be disproportionately
decisions in Myriad, Mayo, and Alice, the USPTO issued new funded by bad faith actors. In addition, evidence suggests
guidelines on eligibility for patentable subject matter for that there is a reduced opportunity to amend claims in
naturally occurring substances. Although greater clarity is still opposition proceedings, with USPTO data indicating that
needed, the guidance thus far appears to indicate that certain only about 5% of requests to amend claims are granted by
biologic claims and diagnostic methods are patentable, PTAB, and a lower burden of proof for opposing parties
particularly where they involve something “significantly more” than in district court proceedings. Also, the rate of appeals
than an underlying “law of nature.” A number of court cases to PTAB decisions is beginning to rise, with backlogs
in 2016 appear to mirror this approach. In Rapid Litigation noticeable. As such, the opposition system in the U.S. still
Management Ltd. v. Cellzdirect Inc., a Federal Circuit represents a potential channel for bad faith actors and
decision reversed an earlier decision limiting patentability can involve a great deal of cost and uncertainty for patent
of diagnostic claims, finding that biologic processes and owners compared to other post-grant opposition systems.
diagnostic claims applying laws of nature (beyond merely
observing or identifying such laws) and leading to a “new and Trade Secrets and Market Access
useful” result are patentable. In Vanda Pharmaceuticals Inc. v.
22. Protection of trade secrets: The Defend Trade Secrets
Roxane Labs, Inc., claims on a personalized medicine method
Act was signed into law in 2016. The new law introduces
were upheld on the basis that both diagnostic and treatment
a federal right of action against the misappropriation of
methods included an additional step that went beyond
trade secrets (on top of existing state-level rights of action).
merely depending on the laws of nature. Nevertheless, the
Available remedies include damages for actual losses, with
patenting environment in the U.S. continues to be affected
higher damages for willful infringement, injunctive relief,
by uncertainty as to how to interpret Myriad and other key
and seizures (in extreme situations). Relief is also provided
decisions, and greater clarity, consistency, and closing of
for threatened misappropriation if clear evidence of a threat
gaps with international best practices is crucial to upholding a
exists. The new framework aids in enhancing the protection
supportive innovation environment.
of trade secrets across the U.S.

3. Patentability of computer-implemented inventions (CIIs):

The USPTO has also issued updated guidance on software Enforcement
patenting in relation to a number of court decisions in 30. Effective border measures: In 2016, the Trade Facilitation
2016 (such as McRO v. Bandai Namco, BASCOM v. AT&T and Trade Enforcement Act was signed into law. Among
Mobility, and Amdocs v. Openet Telecom) that suggests that other elements, the new measure aims to close existing
software patents that otherwise meet patentability criteria gaps in the fight against trade in counterfeit goods. The law
may be considered patent-eligible and clarifies that claims includes requirements for customs authorities to disclose
directed to software are not automatically considered to be information to rights holders based on suspected infringing
patent-ineligible abstract subject matter. goods and earlier in the process than previously existed in
law. These requirements are intended to shore up the ability
8. Patent opposition: The U.S. provides for various types of to identify and speedily address potential counterfeits.
post-grant opposition proceedings, including 2 introduced The measure also formally establishes the new National
as part of the 2011 America Invents Act (AIA) in an effort to IPR Coordination Center, with authority to coordinate
provide a more cost-effective, efficient alternative to judicial investigations with other agencies, improve communication
proceedings for challenging bad faith actors. The first is with rights holders, and support criminal prosecution.
the post-grant review, available during a 9-month period Depending on the application of the law in practice, the
following the grant of a patent, a mechanism that shares U.S.’s score may rise for this indicator in future editions of
many similarities to the opposition regime available at the the Index.

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VENEZUELA Rank: 45/45

100
Patents
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 50
35
40
Copyrights
International Treaties 30 30
20
10 25
20
15.39
15 13.79

Enforcement 10 6.88
Trademarks
5
0
Venezuela Median Regional
Venezuela Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic copyright, trademark, and industrial design frameworks in 7 Very weak patent framework, with sector-specific patents and other
place IP rights not available
3 Dedicated (although limited) anticounterfeiting effort 7 Major holes in copyright protection, notably in the digital sphere
3 Signatory to some key IP-related international treaties, such as the 7 Trademark legislation does not directly address unregistered marks,
WIPO Internet Treaties with limited recognition of well-known marks
7 Enforcement generally poor; penalties either insufficient or
draconian; administrative inaction
7 Pervasive government interference and regulatory barriers to
commercialization of IP assets curb technology transfer

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 0.5 19. Frameworks against online sale of counterfeit goods 0
2. Patentability requirements 0 20. Industrial design term of protection 0.4
3. Patentability of CIIs 0.25 21. Exclusive rights, industrial design rights 0.25
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.25
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0
7. Regulatory data protection term 0 24. Regulatory and administrative barriers to commercialization 0
8. Patent opposition 0 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.23
9. Term of protection 0.63 26. Software piracy rates 0.12
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0.25 28. Pre-established damages 0
12. Limitations and exceptions 0.25 29. Criminal standards 0
13. Digital rights management 0 30. Effective border measures 0
14. Government use of licensed software 0.25 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0.5
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.25 35. Post-TRIPS FTA 0
TOTAL: 6.88

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Spotlight on the National IP Environment

Patents, Related Rights, and Limitations Enforcement

Venezuela’s overall score has decreased slightly from 21% 29. Criminal standards including minimum imprisonment
of the total possible score (with a score of 6.42 out of 30) in and minimum fines: Lacking a dedicated IP police force,
the fourth edition of the Index to 20% (6.88 out of 35) in the low-profile IP raids are occasionally carried out by the
fifth edition. With some exceptions, little improvements were customs authority (SENIAT). The Venezuelan National Police
registered in 2016 amid persisting legal uncertainties and limited has, however, recently participated in an Interpol operation
protection of IP rights, widespread counterfeiting and piracy, and against criminal organizations involved in counterfeiting
inadequate enforcement. goods, alongside 10 other Latin American countries. As a
result of the operation, about 800 people were charged or
arrested and 800,000 items were seized in the 11 countries.
Trademarks, Related Rights, and Limitations
21. Legal measures available that provide necessary
exclusive rights to redress the unauthorized use of
industrial design rights: In 2016, registration of designs
resumed, after 10 years of inactivity from the Venezuelan
Trademarks and Patents Office in the granting of design
protection (and patents). Resolution No. 087 of 2016
granted registration of 32 industrial designs filed between
1999 and 2003.

Trade Secrets and Market Access

24. Regulatory and administrative barriers to the
commercialization of IP assets: Regulatory barriers to
the commercialization of IP assets considerably curtail
technology transfer and licensing by national researchers
and public employees. In particular, the 2014 reform to
the Organic Law for Science, Technology and Innovation
obliges national researchers to disclose research information
on request by government authorities, disregarding its
confidential and strategic role for future IP protection. The
law also permits the government to maintain co-ownership
of IP issued from public research. In addition, the Organic
Labor Law de facto expropriates IP rights from public
employees by declaring that IP generated by public sector
entities, or using public sector funds, automatically becomes
part of the public domain. Among other elements, the law
on investment from 2014 (Decree 1438) confirms preexisting
barriers to repatriate dividends and pay royalties resulting
from patent and trademark license agreements. For the
licensor to be able to collect such royalties, licenses must be
registered with the National Center for Foreign Trade.

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VIETNAM Rank: 37/45

Patents
100
90
80 Percentage of Overall Score
Membership and 70
60
Ratification of 35
50
40
Copyrights
International Treaties 30
30
20
10 25
20 17.64
15.39
15
10.34
Enforcement 10
Trademarks
5
0
Vietnam Median Regional
Vietnam Trade Secrets and Market Access Index Score Average
Top 5 Economies’ Average Score

Strengths and Weaknesses

Key Areas of Strength Key Areas of Weakness
3 Basic IP framework in place, particularly for trademark protection 7 Inadequate protection of life sciences patents, with challenging
enforcement environment
3 Some improvement in protection of domain names and against
confusingly similar marks for dissimilar goods 7 Gaps in copyright protection, including lack of measures to address
online infringements
3 Elemental framework for IP rights enforcement, with ex officio
customs authority 7 Very high physical counterfeiting rates and rampant online
infringement
3 Greater recognition of, and international cooperation on, IP (for
instance, local campaign Program 168 and EVFTA and the TPP); if 7 Enforcement generally poor; penalties insufficient, administrative
implemented, IP framework may be considerably strengthened inaction

INDICATOR SCORE INDICATOR SCORE

Category 1: Patents, Related Rights, and Limitations

1. Term of protection 1 19. Frameworks against online sale of counterfeit goods 0.5
2. Patentability requirements 0.25 20. Industrial design term of protection 0.6
3. Patentability of CIIs 0 21. Exclusive rights, industrial design rights 0.5
4. Pharmaceutical-related enforcement 0 Category 4: Trade Secrets and Market Access
5. Legislative criteria and active use of compulsory licensing 0 22. Protection of trade secrets 0.5
6. Pharmaceutical patent term restoration 0 23. Non-barriers to market access 0
7. Regulatory data protection term 0.5 24. Regulatory and administrative barriers to commercialization 0.5
8. Patent opposition 0.25 Category 5: Enforcement
Category 2: Copyrights, Related Rights, and Limitations 25. Physical counterfeiting rates 0.24
9. Term of protection 0.53 26. Software piracy rates 0.22
10. Exclusive rights 0.25 27. Civil and procedural remedies 0.25
11. Cooperative action against online piracy 0 28. Pre-established damages 0.25
12. Limitations and exceptions 0 29. Criminal standards 0.25
13. Digital rights management 0.25 30. Effective border measures 0.25
14. Government use of licensed software 0 31. Transparency and public reporting by customs 0
Category 3: Trademarks, Related Rights, and Limitations Category 6: Membership and Ratification of International Treaties
15. Term of protection 1 32. WIPO Internet Treaties 0
16. Limitations on use of brands 1 33. Singapore Treaty on the Law of Trademarks 0
17. Protection of well-known marks 0.25 34. Patent Law Treaty 0
18. Exclusive rights 0.5 35. Post-TRIPS FTA 0.5
TOTAL: 10.34

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Spotlight on the National IP Environment

Past Editions versus Current Scores Membership and Ratification of International

Vietnam’s overall score has increased from 26% of the total Treaties
possible score (7.83 out of 30) in the fourth edition of the Index 35. At least one free trade agreement (FTA) with substantive
to 30% (10.34 out of 35) in the fifth edition. This increase reflects and/or specific IP provisions such as chapters on IP and
Vietnam’s being a signatory to the TPP agreement and its separate provisions on IP rights provided it was signed
moderate performance in some of the new indicators, including after WTO/TRIPS membership: The text of the European
industrial design protection and the ability to commercialize IP Union-Vietnam FTA (EVFTA) was agreed in 2016. The
assets. Nevertheless, although 2016 saw greater government agreement will reportedly be signed in 2017 and enter into
focus on IP, overall efforts remain limited relative to the scale of force in 2018. IP provisions in chapter 12 tackle a number
the challenges and tend to occur on a case-by-case basis rather of the major holes in the current IP system. Among other
than on a large scale. elements, these include providing a 2-year patent term
extension, RDP for pharmaceuticals, narrower exceptions to
copyright and DRM protection, a clear definition of liability
Patents, Related Rights, and Limitations
for key types of online intermediaries, revocation of bad
2. Patentability requirements: The Ministry of Science and faith trademarks, enhanced civil remedies, and ex officio
Technology published proposed amendments to the patent action by customs in relation to IP infringement. Vietnam is
examination rules (Circular 1/2007) that would streamline also a signatory to the TPP agreement, signed in 2016. The
and clarify the system of review. The amendments would TPP includes stricter requirements than the EVFTA, such as
also allow for evidence submission that may be used a 70-year copyright and an 8-year RDP term of protection,
to reverse a denial (currently, the only recourse is via an patent term restoration including coverage of patent office
appeal). In addition, the National Office of IP enhanced delays, patentability of new medical uses, and protection for
cooperation with established patent offices, including sound and scent marks. Vietnam has suggested it will defer
in a new PPH with Japan, in an effort to improve ratification of the agreement to 2017.
capacity, accelerate patent examination, and address
the growing backlog.

5. Legislative criteria and active use of compulsory

licensing of patented products and technologies: A
draft circular provides conflicting guidance on criteria
for compulsory licensing, the framework for reviewing
requests for licenses and the basis for calculating royalties/
remuneration. In violation of TRIPS and in contrast with
the existing IP law, the draft text does not include the
requirement of a voluntary negotiation and license
agreement before resorting to a compulsory license. In
addition, like the current IP law, the draft contains overly
broad language on the conditions for compulsory licensing,
allowing the issuing of a compulsory license for “a drug for
the treatment of diseases with high contraction rates in the
community, a drug necessary to save a human life, and other
events as determined by the Minister of Health” (Article 4).
It also lacks an adequate recourse mechanism that would
allow the patent holder to respond once the process of
considering a compulsory license has started.

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 U.S. Chamber International IP Index | Fifth Edition

Annex: Category Scores, Methodology, Sources, and Indicators

Explained
Category 1: Patents, Related Rights, and Limitations

UK 7.5
Switzerland 7.5
Sweden 7.5
Germany 7.5
France 7.5
Japan 7.3
Spain 7.25
Singapore 7.25
Italy 7.25
U.S. 7
Hungary 7
South Korea 6.85
Taiwan 6.25
Poland 6
Australia 6
Israel 5.8
Canada 5.05
New Zealand 5
Saudi Arabia 4.5
China 4.35
UAE 4.25
Brunei 4
Turkey 3.6
Russia 3.6
Chile 3.6
Mexico 3.5
Kenya 3.5
Ukraine 3
Colombia 3
Philippines 2.75
Malaysia 2.75
Peru 2.5
Vietnam 2
Nigeria 2
Egypt 1.75
Ecuador 1.75
Brazil 1.75
Thailand 1.5
Pakistan 1.5
Indonesia 1.5
India 1.25
Argentina 1.25
South Africa 1
Algeria 1
Venezuela 0.75

0 1 2 3 4
5 6 7 8

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THE ROOTS OF INNOVATION

Category 2: Copyrights, Related Rights, and Limitations

U.S. 6.00
UK 5.63
Germany 5.38
Singapore 5.24
South Korea 4.99
France 4.99
New Zealand 4.91
Australia 4.88
Japan 4.53
Sweden 3.85
Malaysia 3.78
Italy 3.66
Hungary 3.38
Spain 3.38
Israel 3.38
Canada 3.38
Switzerland 3.13
South Africa 2.53
Poland 2.41
UAE 2.28
Kenya 2.28
China 2.28
Ukraine 2.08
Mexico 2.04
Taiwan 2.03
Indonesia 2.02
Turkey 1.99
Russia 1.99
Peru 1.99
Brazil 1.88
Colombia 1.84
Thailand 1.78
Philippines 1.78
Saudi Arabia 1.78
Venezuela 1.63
Chile 1.63
Brunei 1.53
Algeria 1.52
Nigeria 1.49
Ecuador 1.48
India 1.47
Egypt 1.38
Pakistan 1.28
Argentina 1.13
Vietnam 1.03

0.00 1.00 2.00 3.00 4.00 5.00 6.00 7.00

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 U.S. Chamber International IP Index | Fifth Edition

Category 3: Trademarks, Related Rights, and Limitations

South Korea 6.55

Switzerland 6.5
Sweden 6.5
Germany 6.5
U.S. 6.35
Japan 6.3
UK 6
Spain 5.75
Italy 5.75
France 5.5
Singapore 5.35
Canada 4.9
New Zealand 4.85
Poland 4.75
Malaysia 4.75
Brazil 4.75
Taiwan 4.73
Turkey 4.5
Hungary 4.5
UAE 4.4
Vietnam 4.35
Mexico 4.35
Israel 4.15
Colombia 4.15
Chile 4.15
Australia 4.15
Kenya 4.1
Brunei 4.1
Argentina 4.1
South Africa 4
Russia 4
Peru 3.9
China 3.9
Philippines 3.85
India 3.85
Pakistan 3.75
Thailand 3.65
Saudi Arabia 3.65
Indonesia 3.65
Ecuador 3.65
Ukraine 3.6
Nigeria 3.6
Egypt 3.6
Venezuela 3.15
Algeria 3.15

0 1 2 3 4 5 6 7

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THE ROOTS OF INNOVATION

Category 4: Trade Secrets and Market Access

U.S. 3
Switzerland 3
New Zealand 3
Japan 3
Israel 3
Canada 3
UK 2.75
Sweden 2.75
Singapore 2.75
Italy 2.75
Germany 2.75
Australia 2.75
France 2.5
Taiwan 2.25
Spain 2.25
Hungary 2.25
Brunei 2.25
South Korea 2
Saudi Arabia 2
Poland 2
South Africa 1.75
Malaysia 1.75
Mexico 1.5
Egypt 1.5
Peru 1.25
Kenya 1.25
Brazil 1.25
Vietnam 1
UAE 1
Turkey 1
Nigeria 1
Colombia 1
Chile 1
Argentina 1
Philippines 0.75
Pakistan 0.75
India 0.75
Ukraine 0.5
Russia 0.5
Ecuador 0.5
Algeria 0.5
Venezuela 0.25
Thailand 0.25
Indonesia 0.25
China 0.25

0 0.5 1 1.5 2 2.5 3

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 U.S. Chamber International IP Index | Fifth Edition

Category 5: Enforcement

UK 6.51
Sweden 6.39
France 6.38
Germany 6.29
U.S. 6.27
Japan 6.16
Switzerland 5.73
Australia 5.29
Singapore 5.03
Israel 4.94
South Korea 4.92
Spain 4.85
Italy 4.82
New Zealand 4.79
Hungary 4.76
Poland 4.34
Taiwan 3.58
Mexico 3.48
Colombia 3.23
Canada 3.11
Brazil 3.1
Saudi Arabia 3.05
South Africa 2.92
Chile 2.76
Turkey 2.71
Peru 2.7
Malaysia 2.66
China 2.55
Russia 2.44
Thailand 2.35
UAE 2.31
Ecuador 2.21
Brunei 1.8
Algeria 1.67
Philippines 1.65
Argentina 1.57
Vietnam 1.46
India 1.43
Nigeria 1.38
Kenya 1.32
Indonesia 1.22
Egypt 1.15
Pakistan 1.09
Ukraine 0.88
Venezuela 0.6

0 1 2 3 4 5 6 7

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Category 6: Membership and Ratification of International Treaties

U.S. 4
Ukraine 4
UK 4
Switzerland 4
Sweden 4
Spain 4
Japan 4
France 4
Australia 4
Poland 3.5
Italy 3.5
Hungary 3.5
Germany 3.5
South Korea 3
Singapore 3
Russia 3
Turkey 2
Peru 2
Mexico 2
Colombia 2
Chile 2
Canada 2
Taiwan 1.75
Nigeria 1.5
New Zealand 1.5
Malaysia 1.5
Kenya 1.5
China 1.5
Algeria 1.5
UAE 1
Saudi Arabia 1
Philippines 1
Israel 1
Indonesia 1
Ecuador 1
Argentina 1
Vietnam 0.5
Venezuela 0.5
South Africa 0.5
Brunei 0.5
Brazil 0.5
Thailand 0
Pakistan 0
India 0
Egypt 0

0 0.5 1 1.5 2 2.5 3 3.5 4

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 U.S. Chamber International IP Index | Fifth Edition

The Index consists of 35 indicators across 6 separate categories:

1). Patents, Related Rights, and Limitations;

2). Copyrights, Related Rights, and Limitations;
3). Trademarks, Related Rights, and Limitations;
4). Trade Secrets and Market Access;
5). Enforcement; and
6). Membership and Ratification of International Treaties.

As in previous editions, these categories are used for ease of organizing the Index and have no statistical impact
on weightings or an economy’s overall score in the Index. Each indicator is explained in more detail below.

Table I lists all 35 indicators that together make up the Index.

Table I: International IP Index: Categories and Indicators

Category 1: Patents, Related Rights, and Limitations

1. . Patent term of protection
2. . Patentability requirements
3. . Patentability of computer-implemented inventions
4. . Pharmaceutical-related patent enforcement and resolution mechanism
5. . Legislative criteria and active use of compulsory licensing of patented products and technologies
6. . Patent term restoration for pharmaceutical products
7. . Regulatory data protection term
8. . Patent opposition
Category 2: Copyrights, Related Rights, and Limitations
9.. Copyright (and related rights) term of protection
10. .Legal measures that provide necessary exclusive rights preventing infringement of copyrights and
related rights (including Web hosting, streaming, and linking)
11. .Availability of frameworks that promote cooperative action against online piracy
12. .Scope of limitations and exceptions to copyrights and related rights
13. .Digital rights management legislation
14. .Clear implementation of policies and guidelines requiring that any proprietary software used on
government ICT systems should be licensed software

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THE ROOTS OF INNOVATION

Table I: International IP Index: Categories and Indicators (continued)

Category 3: Trademarks, Related Rights, and Limitations

15.. Trademarks term of protection (renewal periods)
16.. Discrimination/restrictions on the use of brands in the packaging of different products
17.. Ability of trademark owners to protect their trademarks: requisites for protection
18.. Legal measures available that provide necessary exclusive rights to redress unauthorized uses of
trademarks
19.. Availability of frameworks that promote action against the online sale of counterfeit goods
20.. Industrial designs term of protection
21.. Legal measures available that provide necessary exclusive rights to redress the unauthorized use of
industrial design rights

Category 4: Trade Secrets and Market Access

22.. Protection of trade secrets
23. .Barriers to market access
24. .Regulatory and administrative barriers to the commercialization of IP assets
Category 5: Enforcement
25. .Physical counterfeiting rates
26. .Software piracy rates
27. .Civil and procedural remedies
28. .Preestablished damages and/or mechanisms for determining the amount of damages generated by
infringement
29. .Criminal standards including minimum imprisonment and minimum fines
30. .Effective border measures
31. .Transparency and public reporting by customs authorities of trade-related IP infringement
Category 6: Membership and Ratification of International Treaties
32.. WIPO Internet Treaties
33.. Singapore Treaty on the Law of Trademarks
34. .Patent Law Treaty
35.. At least one free trade agreement with substantive and/or specific IP provisions such as chapters on IP
and separate provisions on IP rights provided it was signed after WTO/TRIPS membership

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 U.S. Chamber International IP Index | Fifth Edition

1. Scoring Methodology Mixed indicators are the majority of indicators used

in the Index, with 25 of the 35 indicators being mixed.
As in previous editions of the Index, each indicator Of the remaining 10 indicators, 8 are numerical
can score values between 0 and 1 and the cumulative and only 2 are binary. The use of mixed indicators
score of the Index ranges from a minimum of 0 to a provides greater flexibility when scoring and allows
maximum of 35. Indicators can be scored using three the Index to more effectively accommodate “gray
distinct methods: binary, numerical, and mixed. areas” in economy performance for a given indicator.
Specifically, it is possible to assign a partial score,
When an indicator is of a binary nature, each indicator rather than only 0 or 1.
is assigned either the value 0—if the particular IP
component does not exist in a given economy—or Five possible scores are available within a mixed
1—if the particular IP component does exist in a indicator: 0, 0.25, 0.5, 0.75, and 1. The range of scores
given economy. available for mixed indicators means that greater
nuance can be used when individual indicators are
Numerical indicators are those indicators that, for scored; the practical end result is that economies can
example, measure terms of exclusivity or are based on receive partial scores for an indicator, which in some
a quantitative source. Terms of exclusivity are calculated cases are a better approximation of their given reality.
by dividing the actual term of exclusivity of each
relevant indicator by a standard baseline. For example, Last, there are also a few instances in which rather than
the standard baseline used for the copyright term is 95 the de jure and de facto existence of a single element,
years, which is the term provided in the U.S.xi Thus, the a mixed indicator is split between two separate
numerical formula for this subcategory is “n years of elements. For example, in Category 6: Membership
basic copyright term/95.” If an economy has a copyright and Ratification of International Treaties, the indicators
term of 95 years, the value it scores on this indicator is 1. are measured by the signature and ratification or
If it has a copyright term of less than 95 years, then the accession to a given international treaty. Thus, 0.5
value is less than 1. Details of the individual baselines is given for being a signatory of a treaty and 0.5 for
used for different types of IP rights are provided below. ratifying or acceding to that treaty.

Where there are no adequate baselines and the 2. Baselines Used

legislative or regulatory existence of an indicator is not
sufficient to determine its actual use or application, When possible, the Index uses baseline values,
the score for that indicator will be mixed. The final measures, and models. These values are based
score for that indicator will be based on an even split on best practices regarding terms of protection,
between the following: enforcement mechanisms (de jure and de facto), and/
or model pieces of primary or secondary legislation
•. Primary and/or secondary legislation (regulation) that can be found at the national and international
in place; and level. Where no adequate baselines are found in
international law or treaties, the baselines and values
•. The actual application and enforcement of that used are based on what rights holders view as an
primary and/or secondary legislation. appropriate environment and level of protection.

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IP Rights Baselines

Baselines Baseline in Years Legislation Model

Basic patent protection 20 TRIPS

Copyrights 95 U.S.

Trademarks 10 WIPO

Regulatory data protection 10 EU

Patent term restoration 5 EU/U.S.

Design rights 25 EU

3. Measuring Counterfeiting and Piracy Up until its fourth edition, the Index had relied on two
main sources for measuring piracy and counterfeiting:
Indicators 25 and 26 of the Index measure rates
of physical counterfeiting and software piracy, •. The OECD’s General Trade-Related Index
respectively. Measuring piracy and counterfeiting of Counterfeiting of Economies (GTRIC-e),
presents a number of challenges. which measures the relative rates of physical
counterfeiting (the latest year for which data is
First, illegal activities are inherently difficult to measure available is 2013)xiii; and
and quantify with a high level of accuracy. Estimates
will out of necessity be based on variables such as •. Software piracy rates compiled by the Business
physical seizures and surveys. This is particularly the Software Alliance (BSA) (2016 being the latest
case for online piracy. survey).xiv

Second, studies of rates of piracy and counterfeiting These sources are both robust and internationally
often are either economy-specific (focusing on one or recognized measures. Furthermore, they cover a large
a relatively small sample of economies) or global. The sample of economies, providing a sound basis for both
result is a relative paucity in the number of studies that cross- economy comparisons and long-term use within
measure and compare levels of piracy and counterfeiting, the Index. And both the BSA software piracy rates and
with a sample of economies sufficient enough to make the GTRIC-e Index are numerical measures and can be
large-scale comparisons empirically robust. transposed into two respective scores.

Last, because measures of piracy and counterfeiting Still, there are caveats with the use of these measures,
are inexact, estimates of their economic impact can in particular the GTRIC-e.
vary widely depending on the methodology and data
samples used.xii

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First, the GTRIC-e Index measures the relative rates of estimates of total global levels of physical
physical counterfeiting and is based on international counterfeiting as a share of world trade, the Global
trade statistics and customs interception data. Measure of Physical Counterfeiting estimates the
Crucially, the GTRIC-e does not take into account or percentage and dollar value of trade-based physical
measure domestically produced products or pirated counterfeiting for each of the 45 economies included
digital products. The practical result is that a number in the Index. To obtain a unique estimate for each of
of economies with relatively low levels of customs the 45 economies, the Global Measure of Physical
interception of counterfeit goods, yet high levels of Counterfeiting uses a proprietary metric that
domestically produced counterfeit goods or high applies 3 equally weighted factors to provide a
levels of online piracy, can rank quite well within holistic take on the propensity for counterfeiting in
the GTRIC-e. These results may not present an the selected economies.
accurate reflection of their overall piracy and
counterfeiting environment. The first factor is the scores for the indicators within
Category 5: Enforcement. These include:
To address this challenge, the fourth edition of
the Index incorporated a new proprietary Global •. The existence of civil and procedural remedies,
Measure of Physical Counterfeiting. The measure was including injunctions, damages for injuries, and
developed by the U.S. Chamber of Commerce and destruction of infringing and counterfeit goods, as
Pugatch Consilium to provide a new global measure of well as their effective application;
physical trade–related counterfeiting. This measure of
physical counterfeiting is also used for this fifth edition •. The existence of preestablished damages and/
of the Index and provides the basis for the score on or mechanisms for determining the amount of
indicator 25. damages generated by infringement;

The measure provides a total and per economy •. Criminal standards (including minimum
estimate of rates of physical trade-related imprisonment and minimum fines) in place and
counterfeiting for each of the 45 economies included their application;
in the Index. The full details of the building of the
model, methodology, and sources used, as well •. Effective border measures (measured by the
as an assessment of the wider threat of physical extent to which goods in transit suspected of
counterfeiting, is provided in the report Measuring infringement may be detained or suspended, as
the Magnitude of Global Physical Counterfeiting, well as the existence of ex officio authority); and
available on the Global Intellectual Property Center
(GIPC) website. •. Transparency and public reporting by customs
authorities of trade-related IP infringement.
In brief, the methodology of the Global Measure of
Physical Counterfeiting builds on that developed The second factor is the OECD’s GTRIC-e benchmark
by the OECD and the GTRIC-e. Using the OECD’s discussed in detail above.

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The third factor is the rate of corruption within an •. Reports from parliamentary committees and
economy, as measured by Transparency International’s government agencies, including patent or IP
Global Corruption Barometer.xv This measurement is offices as well as enforcement agencies; and
based on the assumption that a strong relationship •. Internal departmental guidelines, policies,
exists between corruption and counterfeiting; that is, assessments, and audits.
authorities in economies that struggle with corruption
tend to also overlook or place less emphasis on Legal
combating criminal activities, including counterfeiting.
Sources from judicial authorities and legal practitioners
include the following:
The final score for indicator 25 is a simple average of
the individual scores each economy receives on these •. Court cases and decisions;
three measures, with each factor weighted an equal •. Legal opinions written by judges; and
one-third of the total indicator score.
•. Legal analysis and opinions written by legal
practitioners.
The BSA survey expresses an economy’s software piracy
rate as a percentage. Within the Index, the reverse of
International Institutions and Third Parties
the BSA software piracy percentage is used as the score
for indicator 26; the higher the BSA software piracy rate These sources include the following:
is in an economy, the lower its score on the Index. For •. Data, studies, and analysis from international
example, if economy X has an estimated software piracy organizations such as the OECD, WTO,
rate of 90% according to the BSA, it receives a score of and WIPO;
0.10 for indicator 26 within the Index.
•. Publicly available reports, studies, and
government submissions by industry
4. Sources organizations; and

Scoring in the Index is based on both qualitative •. Reports from nongovernment and consumer
and quantitative evidence. To provide as complete a organizations.
picture of an economy’s IP environment as possible,
this evidence is drawn from a wide range of sources. Academic
All sources used are publicly available and are free Academic sources include the following:
and accessible to all. The following is an outline of the •. Academic journals; and
different types of sources used.
•. Legal journals.

Government
News
Sources from government branches and agencies
News sources include the following:
include the following:
•.Newspapers;
•. Primary legislation;
•. News websites; and
•. Secondary legislation (regulation) from
executive, legislative, and administrative bodies; •. Trade press.

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In addition to the above listed resources, over 2. . Patentability requirements – The extent to
the course of the past few years, more and more which patentability requirements are in line with
governments and economies have started to make international standards of novelty, inventive
submissions directly to the GIPC and U.S. Chamber step, and industrial applicability.xvi Measured by
of Commerce. These submissions include everything (1) existing de jure patentability guidelines and
from updates on legislative and regulatory initiatives regulations and (2) de facto standards established
to details about various government policies, such as through the application of these guidelines and
antipiracy initiatives as well as data and statistics on regulations through the examination process and
anticounterfeiting and activities to fight online piracy. judicial review. This is a mixed indicator.

The U.S. Chamber welcomes these submissions and 3. . Patentability of computer-implemented

endeavor to use them together with all other available inventions – Measured by the extent to which
information to provide the most accurate as possible primary and/or secondary legislation explicitly
depiction of the national IP environment in each of the allows for the patentability of CIIs. This is a
economies sampled. mixed indicator.

We wish to thank the governments and economies 4. . Pharmaceutical-related patent enforcement

that have made these submissions and welcome all and resolution mechanism – Measured by the
economies covered in the Index to consider doing existence of primary and/or secondary legislation
so. The only criteria we use—just as for all resources (such as a regulatory mechanism) that provides
used in the Index—is that the sources and materials a transparent pathway for adjudication of patent
submitted to us need to be publicly available and in validity and infringing issues before the marketing
the public domain. of a generic or biosimilar product. This score is
evenly divided between the existence of relevant
5. Indicators Explained primary and/or secondary legislation and its
application/enforcement. If no legislation is in
This section explains how each indicator in the Index is place, the maximum score that can be achieved is
measured and scored. 0.5 and is based on the extent to which de facto
practices are in place that achieve a similar result.
Category 1: Patents, Related Rights, and This is a mixed indicator.
Limitations
5. . Legislative criteria and active use of
The indicators included in this category relate to compulsory licensing of patented products
patent protection and related rights and limitations. and technologies – Measured by the extent to
which primary and/or secondary legislation on the
1. . Patent term of protection – Measured by the use of compulsory licensing (on the basis of the
basic patent term offered in the TRIPS Agreement. essential facilities doctrine) and its application/
This is a numerical indicator. enforcement is transparent and consistent with the

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following criteria: (1) the issuing should exclude Category 2: Copyrights, Related Rights, and
any requirement for domestic manufacturing; Limitations
(2) the issuing should not apply to patented
innovations that have not yet reached the market; The indicators included in this category relate to
(3) in the case of biopharmaceutical products, copyright protection and related rights and limitations.
compulsory licensing under the framework of
TRIPS provisions on public health should not be 9. . Copyright (and related rights) term of
used for commercial purposes, such as for price protection – Measured by the baseline term
negotiations or in support of domestic industries; of protection not referencing the variable of
and (4) adequate and well-defined recourse the length of the author’s life, which is the
mechanisms should be in place for parties term afforded in the U.S. of 95 years. Terms
affected by the issuing of the license. This is a of protection are measured as the minimum
binary indicator. term allowed by copyright law. Where different
minimum terms of protection are used for different
6. . Patent term restoration for pharmaceutical forms of copyright, all terms are added together
products – Measured by the current baseline and divided by 95. This is a numerical indicator.
rate of five years used in the U.S. and EU. This
protection is aimed at restoring the patent term 10. Legal measures that provide necessary exclusive
granted to innovative pharmaceutical products, rights preventing infringement of copyrights and
due to the prolonged research, development, related rights (including Web hosting, streaming,
and regulatory approval periods of such products. and linking) – Measured by the extent to which
This category does not include other forms of economies (1) have in place laws and procedures
patent term restoration that are granted on the that provide necessary exclusive rights; and (2)
basis of prolonged examination periods. This is a apply these laws to prevent, deter, and remedy
numerical indicator. online infringement of copyright and related rights.
This is a mixed indicator.
7. . Regulatory data protection (RDP) term –
Measured by the optimal desired term, which is 11. .Availability of frameworks that promote
the term of exclusivity used by the EU for new cooperative action against online piracy –
biopharmaceutical products containing new active Measured by the existence of clear standards for
ingredients regardless of molecular size and/or the limitation of liability for copyright and related
complexity.xvii This is a numerical indicator. rights infringement by ISPs that expeditiously
remove infringing material upon obtaining
8. . Patent opposition – Measured by the availability knowledge of it, in the context of an overall system
of mechanisms for opposing patents in a manner that does not unduly burden ISPs, promotes
that does not delay the granting of a patent (in cooperation between them and rights holders to
contrast to a right of opposition before the patent address online piracy, and respects and protects
is granted) and ensures fair and transparent users’ rights. This is a mixed indicator.
opposition proceedings. This is a mixed indicator.

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12. Scope of limitations and exceptions to 16. .Discrimination/restrictions on the use of brands
copyrights and related rights – Measured by in the packaging of different products – Measured
the extent to which exceptions and limitations by the extent to which different national laws and
are consistent in text and in application with regulations do not unreasonably limit the rights
the three-step test originating in the Berne holder from using/putting its brand, trademark,
Convention (Berne three-step test).xviii The score or corresponding trade dress on the package of
for this indicator is evenly divided between its products, thereby curtailing its rights under
legislation and application in the court system. trademark protection. This is a binary indicator.
This is a mixed indicator.
17. .Ability of trademark owners to protect
13. .Digital rights management legislation – their trademarks: requisites for protection –
Measured by the extent to which (1) economies Measured by the extent to which existing laws
have passed primary and/or secondary legislation and regulations and/or de facto practices allow
relating to DRM and technological protection for trademark protection through the use of the
measures and (2) this legislation is applied. This is mark, regardless of whether the trademark owner
a mixed indicator. registers the mark. This is a mixed indicator.

14..Clear implementation of policies and guidelines 18. .Legal measures available that provide necessary
requiring that any proprietary software used exclusive rights to redress unauthorized uses of
on government ICT systems should be licensed trademarks – Measured by the extent to which
software – Measured by the extent to which (1) economies (1) have in place laws and procedures
policies and guidelines are in place that stipulate that provide necessary causes of action to
the use of only licensed proprietary software and address violations of a trademark owner’s rights
(2) these policies and guidelines are applied. This (such as infringement of registered trademarks,
is a mixed indicator. unfair competition, false designation of origin,
false advertising, dilution of famous trademarks,
Category 3: Trademarks, Related Rights, and cybersquatting, and violation of rights
Limitations associated with a corresponding trade dress),
which create a likelihood of public confusion
The indicators in this category relate to trademark as to source, sponsorship, or affiliation; and (2)
protection, design rights, and related rights and apply these laws to prevent, deter, and remedy
limitations. infringement of trademarks and related rights.
This is a mixed indicator.
15. .Trademarks term of protection (renewal
periods) – Measured by the renewal term of 19. .Availability of frameworks that promote
protection being offered; the baseline term is 10 action against the online sale of counterfeit
years as provided by the Singapore Treaty on the goods – Measured by the existence of clear rules
Law of Trademarks. This is a numerical indicator. and standards for the expeditious removal of
trademark-infringing material by online service

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providers upon learning of the infringement, in the court or law enforcement system. Economies that
context of an overall system that does not unduly do not have legislation in place but in which trade
burden such providers, promotes cooperation secrets and confidential information are effectively
between them and rights holders to address the protected through other mechanisms can receive
infringement of trademark rights, and respects a maximum score of 0.5. Model legislation is TRIPS
and protects consumers’ rights. This score is (Article 39(1)) & (2)). This is a mixed indicator.
evenly divided between the existence of relevant
primary and/or secondary legislation and its 23. .Barriers to market access – The extent to which
application and enforcement. In the absence of laws and regulations or de facto practices do not
a legal or regulatory framework, a score of up to make access to an economy’s market contingent
0.5 can be allocated based on the existence and on the sharing and/or disclosure of IP and know-
effectiveness of voluntary industry standards and how with a local or domestic entity. This indicator
practices in place. This is a mixed indicator.xix is measured by the extent to which (1) existing
laws and procedures do not make market access
20. .Industrial designs term of protection – Measured contingent on the sharing or disclosure of IP and
by the maximum term of protection being offered know-how; and (2) the application of such laws or,
(including renewable periods); the baseline term in the absence of such laws, the existence of de
is 25 years, which is the maximum term afforded in facto practices and standards that achieve a similar
the European Union. This is a numerical indicator. effect. This is a mixed indicator.

21. .Legal measures available that provide necessary 24..Regulatory and administrative barriers to
exclusive rights to redress the unauthorized the commercialization of IP assets – The
use of industrial design rights – Measured by the extent to which regulatory and/or administrative
extent to which economies (1) have in place laws mechanisms allow IP owners the “freedom to
and procedures that provide necessary exclusive operate” as part of their commercialization
rights (including making, marketing, trading, and and exploitation activities. This would include
use of an industrial design); and (2) apply these the avoidance of barriers or undue burdens on
laws to prevent, deter, and remedy infringement of interacting parties in the following areas:
industrial design rights. This is a mixed indicator. 1.. “Blanket” requirements for forced disclosure
of technologies without the consent of the
Category 4: Trade Secrets and Market Access IP owner;
2.. Governmental preapproval for any licensing
The indicators in this category relate to trade secrets, agreement between parties;
market access, and related rights and limitations. 3.. Predetermined licensing terms, including
FRAND, for proprietary technologies that
22. Protection of trade secrets – Measured by the have not been part of any standard-setting
existence of (1) legislation that offers protection for process (so called market-driven de facto
trade secrets or confidential business information standards, as opposed to de jure, formally
and (2) the application of this legislation in the created standards);

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4.. Restrictions on commercializing IP by public 29. Criminal standards including minimum

research organizations, academia, public imprisonment and minimum fines – Measured
hospitals, etc.; and by the extent to which (1) actual legislation is in
5.. Discriminatory conditions that affect the place and (2) it is applied (i.e., where reliable source
licensing of technologies by foreign IP owners. material is available, the actual level of prosecution,
and penalties applied). Model legislation includes
This is a mixed indicator. TRIPS, Article 61. This is a mixed indicator.

Category 5: Enforcement 30. Effective border measures – Measured by the

extent to which goods in transit suspected of
The indicators in this category measure the prevalence infringement may be detained or suspended.
of IP rights infringement, the criminal and civil legal This indicator also measures the extent to which
procedures available to rights holders, punishment border guards have the ex officio authority to
rates, the authority of customs officials to carry out seize suspected counterfeit and pirated goods
border controls and inspections, and the transparency without complaint from the rights holder. This is a
of customs authorities. mixed indicator.

25. Physical counterfeiting rates – Measured by 31. Transparency and public reporting by customs
estimated rates of general trade-related physical authorities of trade-related IP infringement –
counterfeiting using the U.S. Chamber’s Global The extent to which customs authorities in a given
Measure of Physical Counterfeiting. This is a economy publish statistics and data on trade-
numerical indicator. related IP infringement. This indicator measures
(1) the extent to which data are published on a
26. Software piracy rates – Measured by rates of regular and systematic basis and (2) the level of
software piracy. This is a numerical indicator. detail of these data. This is a mixed indicator.

27. Civil and procedural remedies – Measured by Category 6: Membership and Ratification of
(1) the existence of civil and procedural remedies, International Treaties
including injunctions, damages for injuries, and
destruction of infringing and counterfeit goods; The indicators in this category measure whether an
and (2) their effective application. This indicator economy is (1) a signatory of and (2) has ratified or
also reflects administrative enforcement measures acceded to international treaties on the protection of IP.
where applicable. This is a mixed indicator. Indicators 32–34 are measured using WIPO as a source.
The following treaties each make up one indicator:
28. Preestablished damages and/or mechanisms for
determining the amount of damages generated 32. WIPO Internet Treaties – These consist of
by infringement – This is a mixed indicator. the WIPO Copyright Treaty and the WIPO
Performances and Phonograms Treaty.

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THE ROOTS OF INNOVATION

Respectively, they cover and clarify the use of

copyright in a digital environment and the moral
and economic rights of performers and producers
of phonograms. This is a mixed indicator.

33. Singapore Treaty on the Law of Trademarks –

This is a mixed indicator.

34. Patent Law Treaty – This is a mixed indicator.

35. At least one free trade agreement with

substantive and/or specific IP provisions such
as chapters on IP and separate provisions on IP
rights provided it was signed after WTO/TRIPS
membership – This is a mixed indicator.

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Endnotes

i World Bank (2016), Gross Domestic Product 2015, Ranking Table Updated October 2016.

ii Note that the World Bank’s geographic classifications have been somewhat amalgamated: Middle East and
North Africa has been combined with Sub-Saharan Africa, and East Asia and Pacific has been combined with
South Asia. See World Bank (2016), Country and Lending Groups, http://data.worldbank.org/about/country-
and-lending-groups.

iii Note that the World Bank does not include Taiwan in its classification or its databank. However, based on
current per capita income levels, Taiwan would be classified as a high-income economy. World Bank (2016),
Country and Lending Groups, http://data.worldbank.org/about/country-and-lending-groups.

vi Note that the World Bank does not include Taiwan in its classification or its databank. However, based on
current per capita income levels, Taiwan would be classified as a high-income economy. World Bank (2016),
Country and Lending Groups, http://data.worldbank.org/about/country-and-lending-groups.

v Pugatch, M. P. (2004), The International Political Economy of Intellectual Property Rights, pp. 129, 131; ICTSD,
WHO, UNCTAD (2006), Guidelines for the Examination of Pharmaceutical Patents: Developing a Public Health
Perspective – A Working Paper, p. vii.

vi Broken down by relevant categories, the TRIPS Agreement scores on the Index are:
Category 1: Patents, Related Rights, and Limitations – 6 out of 8
Category 2: Copyrights, Related Rights, and Limitations – 2.03 out of 6
Category 3: Trademarks, Related Rights, and Limitations – 4.6 out of 7
Category 4: Trade Secrets and Market Access – 1.5 out of 3
Category 5: Enforcement – 2.5 out of 5 relevant indicators

vii TPP Agreement, Chapter 18, “Intellectual Property.”

viii For greater certainty, that ex officio action does not require a formal complaint from a third party or rights
holder. For the purposes of this article, a party may treat “goods under customs control” as meaning goods
that are subject to a party’s customs procedures. For the purposes of this article, a party may treat goods
“destined for export” as meaning exported. This subparagraph applies to suspect goods that are in transit
from one customs office to another customs office in the party’s territory from which the goods will be
exported. As an alternative to this subparagraph, a party shall instead endeavor to provide, if appropriate
and with a view to eliminating international trade in counterfeit trademark goods or pirated copyright goods,
available information to another party in respect to goods that it has examined without a local consignee and
that are transhipped through its territory and destined for the territory of the other party, to inform that other
party’s efforts to identify suspect goods upon arrival in its territory.

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ix Broken down by relevant categories, the TPP agreement scores on the Index are:
Category 1: Patents, Related Rights, and Limitations – 7.55 out of 8
Category 2: Copyrights, Related Rights, and Limitations – 5.74 out of 6
Category 3: Trademarks, Related Rights, and Limitations – 4.1 out of 7
Category 4: Trade Secrets and Market Access – 1.5 out of 3
Category 5: Enforcement – 4.5 out of 5 relevant indicators
Category 6: Membership and Ratification of International Treaties – 2 out of 3

x Saez, C. (2016),” Special Feature: UN High Level Panel on Access to Medicines—First Reactions, Process
Explained,” IP Watch, February 1, 2016.

xi Many economies have a copyright term that is measured by the life of an author plus an additional number
of years. Given the difficulties in measuring and estimating an average life of an author, and thus an average
term of protection, this indicator uses only minimum terms, which are applied in lieu of the life of the author
plus an additional number of years (i.e., in cases where the rights holder is unknown or has already died).
Accordingly, 95 years is the minimum term applied in U.S. law.

xii These difficulties in measuring piracy are particularly pronounced for online piracy. No comprehensive
studies exist that measure and compare rates of online piracy for a large sample of countries. Consequently,
the indicators measuring piracy and counterfeiting in the Index are primarily based on physical piracy
and counterfeiting, with the data from the BSA being based on both physical and digital software piracy.
Nevertheless, a number of academic and industry-supported studies measure rates of online piracy and
its economic impact either on a global basis or for a few large economies. For example, a 2011 study
commissioned by NBCUniversal and produced by Envisional found that 23% of global Internet traffic was
estimated to be infringing in nature. Similarly, a 2011 report by Frontier Economics estimated the total value
of counterfeit and pirated products in 2008 and forecast for 2015 to be $455–$650 billion and $1,220–$1,770
billion, respectively. Out of this total, digitally pirated products were estimated at $30–75 billion in 2008 and
forecast to be $80–240 billion in 2015. Furthermore, this report found that online piracy in the U.S. made up
a large share of this digital piracy figure. For 2008, the report estimated that $7–$20 billion worth of digitally
pirated recorded music was consumed in the U.S., with an additional $1.4–$2 billion of digitally pirated
movies also consumed. Last, the vast majority of academic papers and economic analyses have found that
online piracy and file sharing has had a negative impact on media sales, including music. For details, see
Envisional (2011), Technical Report: An Estimate of Infringing Use of the Internet (Cambridge 2011), p. 2;
Frontier Economics (2011), Estimating the Global Economic and Social Impacts of Counterfeiting and Piracy
(London 2011), pp. 56–8; and Smith, M. D. & Telang, R. (2012), Assessing the Academic Literature regarding
the Impact of Media Piracy on Sales (Social Science Research Network 2012).

xiii OECD (2016), Trade in Counterfeit and Pirated Goods, pp. 110–1.

xiv Business Software Alliance (BSA) (2016), Seizing Opportunity through License Compliance: BSA Global
Software Survey, May 2016.

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xv Transparency International, Global Corruption Barometer 2013, http://www.transparency.org/gcb2013.

xvi International and best practices are defined here as those principles established in TRIPS Article 27: “Subject
to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or
processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of
industrial application.”

xvii Half (0.5) of the available score is based on the term available for biologics or large-molecule compounds.
If a country’s relevant legislation/regulation either de jure or de facto does not cover such compounds, then
the maximum score that can be achieved on this indicator is 0.5. The baseline numerical term used is that by
the EU of 10 years (8+2) of marketing exclusivity.

xviii The Berne three-step test generally requires that limitations and exceptions to copyrights should be (1)
confined to special cases; (2) which do not conflict with a normal exploitation of the work; and (3) do not
unreasonably prejudice the legitimate interests of the rights holder (TRIPS Agreement, Article 13).

xix Examples of voluntary and industry-based standards include those standards and policies used in the U.S.
and elsewhere by providers such as eBay. The latter has a system in place—the Verified Rights Owner (VeRO)
Program—which allows rights holders to protect their IP through a process of notification and takedown in
which eBay is notified of the infringement and promptly removes the material from its website. Full details of
the system are available at http://pages.ebay.com/vero/intro/index.html.

[ www.uschamber.com/ipindex 137 ]
The U.S. Chamber of Commerce’s Global Intellectual Property Center (www.theglobalipcenter.com) is working around the
world to champion intellectual property rights as vital to creating jobs, saving lives, advancing global economic growth, and
generating breakthrough solutions to global challenges.

The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than
3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.

This report was conducted by Pugatch Consilum (www.pugatch-consilium.com) a boutique consultancy that provides
evidence-based research, analysis, and intelligence on the fastest growing sectors of the knowledge economy. Authors of this
report are Meir Pugatch, Rachel Chu, and David Torstensson.

Professor Meir Pugatch, Managing Director and Founder

Prof. Pugatch founded Pugatch Consilium in 2008. He specializes in intellectual property policy, management and
exploitation of knowledge assets, technology transfer, market access, pharmacoeconomics and political economy of
public health systems. He has extensive experience in economic and statistical modeling and indexing, valuation of
assets and design of licensing agreements, and providing strategic advice to international institutions, multinational
corporations, and SMEs from all sectors of the knowledge economy. In addition to his work at Pugatch Consilium, he is
an IPKM Professor of Valorisation, Entrepreneurship and Management at the University of Maastricht in the Netherlands,
as well as the Chair of the Health Systems Administration and Policy Division at the School of Public Health, University of
Haifa in Israel. He is author and editor of an extensive number of publications and serves as a referee and editorial board
member of numerous peer review journals.

David Torstensson, Partner

Dr. Torstensson specializes in innovation, tax and intellectual property policy, with a particular focus on the health care,
information and communication technology and content industries. He has wide experience in policy and economic
analysis, as well as data sampling and creation of strategic operational and advocacy plans. He is the author of a
number of academic and commissioned reports and publications and is the co-author of all five editions of the U.S.
Chamber International IP Index.

Rachel Chu, Partner

Ms. Chu specializes in biomedical innovation and international innovation policy. She has particular experience in
sector-specific trend mapping, benchmarking of intellectual property environments and econometric analysis. She has
authored several commissioned reports and articles published in academic and trade journals.

Copyright © 2017 by the U.S. Chamber of Commerce. All rights reserved. No part of this work, covered by the copyrights
herein, may be reproduced or copied in any form or by any means—graphic, electronic, or mechanical, including
photocopying, recording, taping, or information and retrieval systems—without the permission of the Chamber.
Global Intellectual Property Center
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Washington, DC 20062
www.theglobalipcenter.com