RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/PER/1
IP/Q2/PER/1
IP/Q3/PER/1
IP/Q4/PER/1
12 June 2001
(01-2877)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
REVIEW OF LEGISLATION
PERU1
This document reproduces the introductory statement made by the Peruvian delegation, the
questions posed to Peru and the responses given for the purpose of reviewing its legislation at theCouncil's meeting of 27 to 30 November 2000. 
2
____________
I. INTRODUCTORY STATEMENT
A. INTRODUCTION
Peru's policy of promoting and protecting intellectual property as a tool for fostering the
country's industrial and cultural development dates as far back as the nineteenth century, with the
issuing of laws governing copyright, patents (a set of provisions known as the Law on Privileges) andtrademarks in 1849, 1869 and 1892, respectively.
Today, Article 2.8 of the Political Constitution of 1993 expressly recognizes freedom of
intellectual, artistic, technical and scientific creation and proprietorship over such creations and the
resulting works.  The State encourages access to culture and furthers its development and
dissemination.
Peru's intellectual property system is made up of the Andean Decisions, national legislation
regulating or governing aspects not covered by the Decisions and the international treaties to which
the country is party.
As the Colombian delegation indicated yesterday, the relevant Andean Decisions currently in
force are the following:
- Decision 486 on industrial property;- Decision 345 on the rights of plant breeders;- Decision 351 on copyright;- Decision 391 on access to genetic resources.
                                                     
1 For further information concerning the laws and regulations relating to the subject-matter of the
review, notified by Peru under Article 63.2 of the Agreement, please refer to documents IP/N/1/PER/1;
IP/N/1/PER/C/1, 2 and 3;  IP/N/1/PER/I/1, 2 and 3;   IP/N/1/PER/P/1, 2 and 3;  and IP/N/6/PER/1.
2 The minutes of this meeting have been circulated in document IP/C/M/29.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 2
The core national legislation governing matters relating to intellectual property comprises:
- Legislative Decree No. 823 on industrial property;
- Supreme Decree 008-96-ITINCI on plant varieties;
- Legislative Decree No. 822 on copyright;
- Legislative Decree No. 807 on the functions, regulations and organization of
INDECOPI, which contains rules governing the enforcement of rights and procedural
matters.
Peru is, moreover, party to the principal intellectual property treaties, such as the TRIPS
Agreement, the Paris Convention, the Berne Conv ention, the Universal Copyright Convention, the
Rome Convention, the Geneva Convention for the Protection of Producers of Phonograms, the
Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by
Satellite, the  Treaty on the International Registration of Audiovisual Works, and the Washington
Convention for Trademark and Commercial Protection.
It should be recalled that the Peruvian Government, along with the other Andean countries,
invested considerable effort in the process of amendment of Decision 344 on industrial property,
which already embodied the main substantive provisions of the TRIPS Agreement.  The new Decision
486 brings Andean legislation fully into line wi th the requirements of the TRIPS Agreement and
hones some of the legal principles underlying the common industrial property regime.
B. SUBSTANTIVE ASPECTS
The most salient features of the principal intellectual property rights covered by Peruvian
legislation are the following:
Patent law
- Patents may be granted for any inventions, whether products or processes, in all areas
of technology, provided that they are new, involve an inventive step and are capable
of industrial application.  Within the meaning of the foregoing, pharmaceutical
products are patentable (as already stipulated under Decision 344).
- The exclusions from patentability specified under Andean legislation are consistent
with those provided for under the TRIPS Agreement (that is, inventions the
commercial exploitation of which must be prevented in order to protect ordre public ,
morality, human or plant life or health, or the environment).  Plants, animals andtherapeutic methods for the treatment of  human beings or animals are likewise
excluded from patentability.
- Micro-organisms are patentable pending the adoption of other measures as a result of
the review provided for in Article 27.3(b) of the TRIPS Agreement.
- A patent owner is under the obligation to exploit the patented invention.  For the
purposes of the foregoing, exploitation is understood to cover both industrial
manufacture of the patented product or use of the patented process and importation of
the patented product.
- The compulsory licensing regime is subject to fulfilment of the conditions listed in the
TRIPS Agreement (that is, efforts must be ma de to obtain prior authorization from theIP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 3
patent owner, the scope and duration of the licence are limited to the purpose for
which it was authorized, the licence must be non-exclusive, provision must be made
for the payment of adequate remuneration, and so forth).
- In matters pertaining to process patents, provision is made for reversal of the burden
of proof.  In the event of infringement, it is accordingly for the alleged infringer to
prove that the process used is different from the patented process.
- The term of protection is 20 years (as already stipulated under Decision 344).
Industrial designs
- Pursuant to Decision 486, textile designs may be protected as industrial designs.
- The restrictions laid down in Peruvian legislation do not conflict in any unjustifiable
manner with the normal exploitation of an industrial design, nor do they unreasonably
prejudice the legitimate interests of the right holder.  Thus, protection does not extendto the features or characteristics of an industrial design dictated essentially by
technical or functional considerations that fail to incorporate any arbitrary
contribution by the designer.
- The registration of an industrial design has a term of 10 years.
Trademarks
- Signs that serve to differentiate products or services on the market and are capable of
graphic representation are protected as trademarks.
- It is now possible, under Decision 486, for signs inherently lacking in distinguishable
characteristics to acquire distinctiveness by way of their use.
- In the event of non-use of a trademark, cancellation of registration is permitted only
after a period of three years, except where there exist valid grounds for non-use.
- Trademark licences are issued solely at the request of the holder.  In other words,
compulsory licensing of trademarks is not permitted.
- A trademark may be assigned without the transfer of the underlying business.
- A well-known trademark enjoys special protection.  It is safeguarded against the risk
of confusion or mistaken association, unjust economic or commercial prejudice to the
owner and weakening of the distinguishing fo rce or market or advertising value of the
sign, and against undue advantage being derived from the sign's prestige or fame.
Such protection accrues regardless of any identical or similar products or services.Moreover – and here Peruvian legislation extends beyond the provisions of the TRIPS
Agreement – registration of a well-known trademark as part of a domain name or an
electronic address may be cancelled.
- Registration of a trademark has a term of 10 years, which exceeds the minimum
period of protection provided for under the TRIPS Agreement.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 4
Geographical indications
- Decision 486 affords protection for geographical indications, which are divided into
two categories, i.e., appellations of origin and indications of origin.
- An appellation of origin is understood to be a geographical indication consisting of
the name of a particular country, region or locality, or of a name which, without being
that of a particular country, region or locality, refers to a specific geographical area
and is used to identify a product originating therein, the qualities, reputation or other
characteristics of which are exclusively or essentially attributable to the geographical
environment in which it is produced, including both natural and human factors.
- Use of appellations of origin by unauthorized persons in such a manner as to cause
confusion is prohibited.  The protection of appellations of origin for wines and spirits
has been strengthened.  Unauthorized use thereof is prohibited, regardless of whether
there exists any risk of confusion among consumers.
- Use of a false or misleading indication of origin is prohibited.- The aforementioned prohibition encompasses not only the use of such an indication
on the product itself, but also its use in advertising and any other commercialdocuments concerning the sale, exhibition or offering of goods and services.
- Use made by persons stating their names or domiciles on the goods being marketed is
excluded from the above prohibition, provided that such a statement does not give rise
to any confusion as to the true origin of the goods.
Layout-designs of integrated circuits
- Protection of layout-designs has been included in Peruvian legislation, pursuant to the
provisions of the TRIPS Agreement.
- Decision 486 defines the concepts of integrated circuit and lay-out design and
specifies, inter alia , the requirements for protection, the registration procedure and the
rights conferred by registration.
- Although protection of layout-designs of integrated circuits falls within the scope of
industrial property law, provisions of copyright law have been incorporated in therelevant legislation.
Business secrets
- A business secret is considered to be any undisclosed information within the lawful
control of any individual person or legal entity that may be used for any productive,
industrial or commercial activity and is capable of being transmitted to a third party,
insofar as such information is secret, has commercial value because it is secret and the
person who legally has control over the information has taken reasonable steps to
keep it secret.
- Protection of a business secret lasts for as long as the aforementioned conditions
continue to exist.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 5
- The information constituting a business secret may relate inter alia to the nature,
characteristics or purpose of products, to production methods or processes, or to
means or methods of distributing or marketing products or rendering services.
- Where approval for the marketing of agro-chemical and pharmaceutical products
using new chemical entities requires the submission of undisclosed test or other data
the origination of which involves a considerable effort, the competent authorities must
protect such data against any unfair commercial use.
Copyright and related rights
- Decision 351 expressly stipulates that original computer programs and databases shall
be protected as literary works.  It also incorporates rental rights in respect of such
works.  In the case of computer programs, such rights are conditional upon the
programs being the essential object of the rental.
- Legislative Decree No. 822 contains provisions drawn from the 1996 WIPO Treaties,
even where these have not yet entered into force.  It thus incorporates rules relating to
copyright (rights of reproduction and communication to the public) and related rights
in the digital environment.
- Although Legislative Decree No. 822 does not contain a detailed list of authors'
economic rights, it establishes as a general principle that the author shall enjoy the
exclusive right to exploit his work by any means or process.  It sets forth a series of
examples of economic rights, which includes copyright.
- Legislative Decree No. 822 lays down a term of protection of 70 years following the
author's death, thus extending protection beyond the requirements specified in the
TRIPS Agreement.
- National legislation provides for self-protection mechanisms that may be
implemented by the copyright owner, such as the codification of signals to prevent
unauthorized communication, reception, retransmission, reproduction or modification
of his work.  Penalties are provided for in the event of importation, manufacture, saleor rental of devices designed to circumvent self-protection systems.
Enforcement of rights
- Under the Peruvian legal system, administrative, civil and criminal action may be
brought to enforce intellectual property rights.
- A request may be filed through administrative channels to obtain the application of
precautionary measures (cessation of the infringing act;  seizure, deposit or arrestment
of goods;  temporary closure of the establishment;  cessation of advertising; and soforth) and border measures with a view to preventing an infringement from being
committed.
- Administrative fines, in amounts up to approximately US$150,000, may be imposed.
- Most cases of infringement of intellectual property rights are settled through
administrative channels, as the procedures are both simple and speedy (six months at
first instance and ten months at second instance, on average) and entail little cost.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 6
- Action may be brought before a civil court in order to determine compensation for
damages caused by infringement of intellectual property rights.
- Offences against industrial property and copyright are punishable by two to four
years' and two to eight years' imprisonment, respectively.
- The Multisectoral Commission on Piracy, Counterfeiting and Forgery, made up of
public and private Peruvian institutions, was set up in April 2001.  Its mandate is to
coordinate efforts to combat piracy, counterfeiting and forgery in Peru and to
establish a joint strategy not only to monitor compliance with intellectual property
legislation but also to foster a culture of respect for intellectual property in thecountry.  The following working groups have been set up to work towards these
objectives:
(i) Working Group on prevention and control;
(ii) Working Group on economic impact and the exchange of information;
(iii) Working Group for legislative analysis and proposals;
(iv) Working Group for the promotion and development of a culture of respect for
intellectual property;
(v) Working Group on inter-institutional relations and functional coordination
between the various authorities concerned.
- Each of these working groups has practical objectives and goals to achieve.  The
Working Group on prevention and control has begun reviewing the issue of piracy at
the sectoral level in order to identify areas in which control needs to be strengthened,
through greater coordination between the various government institutions, associations
and right holders involved.  A work programme, involving both intelligence and
operational tasks, has been drawn up.
- The Working Group on economic impact and the exchange of information is focusing
on the processing of information relevant for the groups responsible for control and
promotion.  It has also undertaken studies on the impact of piracy on the domestic
economy.  To date, progress has been made in the phonogram, made-ups and book
markets.
- The Group for legislative analysis and proposals has identified a series of rules that
would need to be revised in order to increase the effectiveness of penalties and other
sanctions as deterrents to intellectual property infringements.  The Group has, for
example, developed a legislative proposal to establish criminal penalties for failure tocomply with industrial property rules.
- As regards the promotion and development of a culture of respect for intellectual
property, INDECOPI, in coordination with associations such as Business Software
Alliance (BSA), has been conducting awareness-rais ing campaigns with a view to
increasing respect for intellectual property, and putting out a number of publications to
spread statistical information on the economic impact of this type of activity and of the
work done in this sphere.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 7
- As regards inter-institutional coordination, INDECOPI has drawn up a programme of
work with the National Customs Administration (ADUANAS), providing for the
establishment of more effective and efficient cooperation procedures and mechanisms
for the detection of counterfeit merchandise entering the country through customs.
- A number of other bodies, such as the National Tax Administration Office and the Ad
Hoc Office for Intellectual Offences, and representatives of the National Police have
been incorporated in the Commission, so as to involve them more closely in issues
pertaining to intellectual property in Peru.
This brings me to the end of this very condensed summary of the statutory system governing
intellectual property in Peru.
Final comments
Peru affords suitable and effective protection for intellectual property rights through a
combination of international, regional and domestic provisions.  As it is well aware of the importanceof intellectual property, it will actively pursue its efforts to enhance such protection.  Indeed, we have
not only brought our legislation into line with the provisions of the TRIPS Agreement but are also
committed to further developing a culture of respect for and observance of intellectual property rights,
both domestically and internationally.
The Peruvian Government advocates the extension of protection for intellectual property
rights and seeks to stimulate innovation and the creation of intangible property of economic and
commercial value throughout the country.  The recently published Draft Regime for the Protection of
the Collective Knowledge of Indigenous Peoples has drawn comments from academic circles, NGOs,
the business sector, international organizations and indigenous peoples themselves.  We are wellaware that ensuring protection at the domestic level is not sufficient, however, and consider that
international recognition of traditional knowledge as intellectual property subject-matter will give the
beneficiaries legal standing to assert their rights in other countries.
The current intellectual property system stems from a continuing process to foster trade and
technological development.  The protective scope of intellectual property legislation has thus
gradually expanded with the recognition of new rights and subject-matter.  We therefore believe thatthe traditional knowledge of local and indigenous communities, as a significant sphere of human
creativity, cannot be left out of the intellectual property system.  The legitimate interest and
expectations of those communities that their traditional knowledge be given legal recognition are no
less significant than those which, at the time, warranted the recognition of new subjects of intellectual
property protection such as those examined here (plant varieties, biological material, layout-designs ofintegrated circuits, software, databases and so forth).  International recognition of traditional
knowledge is an issue of crucial importance to many developing countries, and especially Peru.
Note:  Decision 344 has been replaced by Decision 486 (Common Industrial Property Regime) which
entered into force on 1 December 2000.  Consequently, the replies hereunder are based on the
provisions of Decision 486.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 8
II. RESPONSES TO THE QUESTIONS POSED BY CANADA
1. What protection does your copyright legislation afford to "foreign works"?
In accordance with Article 2 of Decision 351 (Common Provisions on Copyright and Related
Rights), nationals of other countries shall be granted protection no less favourable than that accorded
to a country's own nationals in matters of copyright and related rights.
Article 1 of Legislative Decree No. 822 (Copyrigh t Law) specifies that protection of authors
of literary and artistic works, their successors in title and the owners of rights related to copyright
shall be entitled to protection regardless of the nationality or domicile of the author or owner of therights concerned or the place of publication or disclosure.  Article 203 of the Law stipulates that
works, artistic performances, phonographic productions, radio broadcasts or transmissions by wire,
cable, optic fibre or another comparable process, audiovisual recordings, photographic fixations and
other intellectual property having originated abroad shall enjoy national treatment in Peru, whatever
the nationality or domicile of the owner of the rights or the place of publication or disclosure.
2. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61 of the TRIPS Agreement?
The public authority responsible for instituting criminal proceedings is the Public Prosecutor's
Office, which is an autonomous government body whose principal functions are to uphold the law and
citizen's rights and to defend the public interest.   In the case of intellectual property rights, the
Nineteenth Criminal Provincial Prosecutor's Office in Lima and Ad Hoc Office for Intellectual
Offences is the competent authority.  INDECOPI, acting through the Public Prosecutor's Office, is
likewise empowered to initiate criminal proceedings.
The Public Prosecutor's Office may institute proceedings ex officio (on its own initiative)
when there are reasonable grounds to believe that an offence has been committed, or at the request of
the aggrieved party (on the basis of a complaint).
Private individuals are not authorized to bring criminal action directly for offences against
intellectual property rights and must do so through the competent Public Prosecutor's Office.
Peru's Criminal Code classifies the following as offences against intellectual property rights:Offences against copyright and related rights
- Unlawful use of an intellectual creation – Articles 216 and 217 of the Criminal Code;- plagiarism – Article 218 of the Criminal Code;- exceeding authorized number of copies or circulation – Article 219 of the Criminal
Code;  and
- sale or distribution of illegally produced copies – Article 220 of the Criminal Code.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 9
Offence Sanction
Unlawful use of an intellectual creation 1-3 years' imprisonment and a fine of
10-60 days*
In aggravated cases:  2-6 years' imprisonment and a fine
of 30-90 days
Plagiarism 2-8 years' imprisonment and a fine of 60-120 days
Exceeding authorized number of copies orcirculation2-8 years' imprisonment and a fine of 60-180 days
Sale or distribution of illegally produced
copies4-8 years' imprisonment and a fine of 90-365 days
*  A day fine is a minor penalty determined by the judge.  It represents a percentage of the earnings of
the person accused.
In such cases, there is provision for the prior attachment of the illegal copies and of the equipment or
means used to commit the offence.  There is also pr ovision for searching or entering the place in which the
criminal offence was committed.
Offences against industrial property
- Unauthorized use of a patent – Article 222 of the Criminal Code;
- unauthorized use or sale of an industrial design – Article 223 of the Criminal Code;
- improper use of an expression accrediting a person as the owner of an industrial
design – Article 224 of the Criminal Code;  and
- unlawful use of a mark – Article 225 of the Criminal Code.
Offence Sanction
Unauthorized use of a patent 2-4 years' imprisonment and a fine of 60-365 days,
as well as disqualification**
Unauthorized use or sale of an industrial design 1-4 years' imprisonment and a fine of 60-365 days,
as well as disqualification
Improper use of an expression accrediting aperson as the owner of an industrial design1-4 years' imprisonment and a fine of 60-365 days,
as well as disqualification
Unlawful use of a mark 1-4 years' imprisonment and a fine of 60-365 days,
as well as disqualification
**Disqualification means loss of the capacity to exercise on one's own account or through a third party
the profession, trade, art or industry specified in the sentence.
III. RESPONSES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
A. GENERAL
1. Please indicate whether your legislation includes measures necessary to protect public
health and nutrition, and to promote the public interest in sectors of vital importance to your
socio-economic and technological development, as specified under Article 8 of the TRIPS
Agreement.  If so, please explain how such measures are consistent with the provisions of the
TRIPS Agreement.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 10
Peruvian legislation includes the following provisions, pursuant to Article 8 of the TRIPS
Agreement:
Article 20(b) of Decision 486 excludes from patentability inventions whose commercial
exploitation in the territory of the respective Member country must be prevented in order to protect
human or animal life or health or to avoid serious prejudice to plant life and the environment.
Likewise, Article 28(b) of Legislative Decr ee No. 823 (Industrial Property Law) excludes from
patentability inventions that are clearly harmful to human or animal health or life or to the
conservation of plants or the environment.  It should be emphasized that one of the objectives of the
provisions protecting inventions is to foster Peru's technological development and to encourage
individual creativity.
According to Article 1(c) of Decision 345 (Common Provisions on the Protection of the
Rights of Breeders of New Plant Varieties), the pu rpose of the Decision is to promote technology
transfer activities within and outside the subregion.
Article 2 of Decision 345 provides that the scope of the Decision shall encompass all
botanical genera and species insofar as the growing, possession or use thereof is not prohibited for
reasons of human, animal or plant health.
Article 45(c) of Decision 391 (Common Regime on Access to Genetic Resources) specifies
that Member countries may establish, through an express legal rule, partial or total limitations on
access to genetic resources or their by-products, where access activities have adverse effects on
human health or on elements essential to the cultural identity of nations.
The aforementioned Articles are compatible with the TRIPS Agreement, since none of them
runs counter to its provisions.
B. COPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of
authors in relation to their literary and artistic  works, as specified in Article 9 of the TRIPS
Agreement, which requires Members to comply with Articles 1-21 of the Berne Convention
(1971) and the Appendix to the Berne Convention.
Peru acceded to the Berne Convention on 3 November 1994 by Legislative Resolution
No. 23979.
Under Article 55 of Peru's Political Constitution, treaties concluded by the State and in force
form part of national law.
The main provisions of the Berne Convention ar e contained in our copyright legislation, that
is, Decision 351 (Common Provisions on Copyrigh t and Related Rights) and Legislative Decree
No. 822 (Copyright Law).
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
 Pursuant to Article 23 of Decision 351 of the Cartagena Agreement, computer programs shall
be protected on the same terms as literary works, and such protection shall extend to every form of
expression thereof, including both operating and application programs, in the form of either source
codes or object codes.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 11
Legislative Decree No. 822 likewise protects computer programs as literary works, as
required under the TRIPS Agreement.
Article 69 of Legislative Decree 822 establishes that computer programs shall be protected on
the same terms as literary works and that such protection shall extend to every form of expressionthereof, including both operating and application programs, in the form of either source or object
codes.  Statutory protection shall extend to any of the successive versions of the program, and also to
derived programs.
As regards compilations of data, Article 28 of Decision 351 states that databases shall be
protected insofar as the selection or arrangement of  the contents constitutes an intellectual creation.
Likewise, Article 78 of Legislative Decree No. 822 provides that databases or compilations of data orother material that are machine-readable or accessible in another form shall be protected provided that
they constitute intellectual creations in terms of the selection or arrangement of their subject-matter.
Such protection does not extend to the actual data, information or material compiled, but it does not
affect any rights that may subsist in the works or constituent subject-matter.
4. Please state whether your legislation provides for a rental right and, if so, the works to
which it applies.
Article 13(c) of Decision 351 specifies that the author, or his successors in title where
applicable, shall have the exclusive right to carry out, authorize or prohibit the distribution of copiesof the work to the public by means of sale, lending or hiring.
On the other hand, Article 72 of Legislative Decree No. 822 provides that the right of rental
or lending shall not apply to computer programs where the program concerned is incorporated in a
machine or product and cannot be reproduced or copied in the course of normal use of the saidmachine or product, or where the rental or lending does not relate essentially to the computer program
itself.
Likewise, Article 37(c) of Decision 351 stipul ates that the producers of phonograms shall
have the right to authorize or prohibit the distribution of the original and every copy thereof to the
public by sale, rental or any other means.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organizations under your legislation.
Performers, producers of phonograms and broadcasting organizations are protected as related
rights under Peruvian legislation.
Article 34 of Decision 351 stipulates that performers shall have the right to authorize or
prohibit the communication to the public of their liv e performances in any form and the fixing and
reproduction of their performances.  Article 35 states that performers shall also have the right to
demand that their names be mentioned at or associated with every performance that takes place andto object to any distortion, mutilation or any other adverse act in relation to their performance that
would damage their prestige or reputation.  Article 37 of Decision 351 specifies that the producers of
phonograms shall have the right to:
(a) Authorize or prohibit the direct or indirect reproduction of their phonograms;
(b) prevent the importation of copies of the phonogram made without the authorization of
the right holder;IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 12
(c) authorize or prohibit the distribution of the original and every copy thereof to the
public by sale, rental or any other means; and
(d) charge remuneration for every use of the phonogram or copies thereof for commercial
purposes, which remuneration may be shared among the performers.
Article 39 of Decision 351 provides that broadcasting organizations shall enjoy the exclusive
right to authorize or prohibit:
(a) The retransmission of their broadcasts by any means or process;
(b) the fixing of their broadcasts on a physical medium; and
(c) the reproduction of a fixation of their broadcasts.
Article 131 of Legislative Decree No. 822 likewise stipulates that performers shall enjoy the
moral right to be recognized by name in relation to  their performances and to object to any distortion,
mutilation or any other adverse act in relation to th eir performance that would damage their prestige
or reputation.  Article 132 establishes that they shall have the exclusive right to carry out, authorize or
prohibit any of the following acts:
(a) Communication of their performances to the public in any form;
(b) fixation and reproduction of their performances by any means or process;(c) reproduction of an authorized fixation where intended for purposes other than those
for which authorization was given.
Article 136 of Legislative Decree No. 822 stipulates that producers of phonograms shall have
the exclusive right to carry out, authorize or prohibit any of the following acts:
(a) Reproduction of their phonograms, whether direct or indirect;
(b) distribution, rental or lending of copies of their phonograms to the public, or any
other transfer of possession thereof, for consideration;
(c) communication in digital form by optic fibre, radio or other wave, satellite or any
other system that has been or may yet be devised, where such communication isequivalent to an act of distribution, in such a way that the user is able to select the
work and production by digital means;
(d) inclusion of their phonograms in audiovisual works;
(e) alteration of their phonograms by technical means.
Finally, Article 140 of Legislative Decree No. 822 establishes that broadcasting organizations
shall have the exclusive right to carry out, authorize or prohibit the following:
(a) Retransmission of their broadcasts by any means or process that is or may yet become
known;
(b) recording of their broadcasts on any sound or audiovisual medium, including that of
any isolated image included in the broadcast or transmission concerned;IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 13
(c) reproduction of their broadcasts.
6. Please state whether your legislation provides  for any limitation or exception in relation
to each of the rights described above in acco rdance with the relevant provisions of the Berne
and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
Chapter VII of Decision 351 establishes limitations and exceptions to copyright.  These are
extensively developed by Legislative Decree No. 822.
In accordance with Article 13 of the TRIPS Agreement, Legislative Decree No. 822 lays
down the following limitations on the right of exploitation.
Limitations on the right of public communication
The works may be lawfully communicated, without the necessity of authorization by the
author or payment of any remuneration, in the following cases:
(a) Where the act takes place in an exclusively domestic environment, provided that there
is no economic interest involved;
(b) where the act takes place in the course of official events or religious ceremonies,
involving small fragments of music or part s of musical works, provided that the
public is able to take part in them free of charge and none of the performers is paid
specific remuneration;
(c) where the acts are shown to have an exclusively educational purpose;(d) where the acts take place in commercial establishments for the purpose of
demonstration to customers;
(e) where the acts are essential to the provision of legal or administrative evidence.
Limitations on the right to reproduction and disclosure
With regard to works that have already been lawfully disclosed, the following shall be
permitted without the author's consent:
(a) Reproduction by reprographic means, for teaching or the holding of examinations at
educational institutions;
(b) reproduction by reprography of short fragments or of works published in graphic
form that are out of print, for exclusively personal use;
(c) individual reproduction of a work by a public library or archive that pursues no
profit-making purpose, where a copy of the work is available in the permanent
collection of the said library or archive, with a view to preserving the work and
replacing the copy where it has been mislaid, destroyed or rendered unusable;
(d) the reproduction of a work for the purposes of judicial or administrative proceedings;IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 14
(e) the reproduction of a work of art on permanent display in a street, square or other
public place, provided that the name of the author, if known, the title of the work, if
any, and the place in which it is located are specified;
(f) the lending to the public of the lawful copy of a work in written form by a library or
archive whose activities have no profit-making purpose.
Limitations on the right to dissemination and broadcasting
The following shall likewise be lawful without authorization, provided that the name of the
author and the source are stated and that reproduction or disclosure have not been expressly reserved:
(a) Dissemination, in connection with the reporting of current events by sound or
audiovisual means to the extent justified by the informatory purpose, of images or
sounds of works seen or heard in the course of such events;
(b) dissemination by the press or transmission by any means, as news of current events,
of speeches, lectures, addresses, sermons and other works of similar character
delivered in public, and speeches delivered in the course of judicial proceedings, to
the extent justified by the informatory purpose pursued, and without prejudice to the
right retained by the authors of the works disseminated to publish them individuallyor in the form of a collection;
(c) dissemination by broadcasting or transmission by cable or any other means that is or
may yet become known of the image of an architectural work, a work of three-
dimensional art, a photographic work or a work of applied art located permanently ina place open to the public.
The Decree provides for the following exceptions:(a) Lectures given either in public or in private by the lecturers of universities, higher
institutes of learning and colleges may be annotated and collected in any form; it shall
also be permissible to make quotations from lawfully disclosed works;
(b) it shall be lawful for a broadcasting organization to make ephemeral recordings;(c) it shall be lawful for a broadcasting organization to transmit or retransmit a work
originally broadcast by it;
(d) a parody of a disclosed work shall be permitted where it does not involve a risk of
confusion therewith or of damaging the original work or its author.
Finally, as regards computer programs, Article 76 of Legislative Decree No. 822 stipulates
that the consent of the author shall not be required for the reproduction of a program code and the
translation of the form thereof when such action is essential to achieve the interoperability of an
independently created program with other programs, provided that the following requirements are
met:
(a) The acts must be performed by the lawful licensee or by any other person empowered
to use a copy of a program, or in their name by a person duly authorized by the
owner;IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 15
(b) the information essential for interoperability to be achieved must not have been
previously, or must not be readily and rapidly in the light of all the circumstances
subject to a reasonable request made to the owner, available to the persons referred to
in the foregoing subparagraph;  and
(c) the acts must be confined strictly to those parts of the original program that are
essential to the achievement of interoperability.
As to the exceptions and limitations provided for under Article 14.6 of the TRIPS Agreement,
it should be added that Article 130 of Legislative Decree No. 822 stipulates that the owners of related
and other intellectual rights may invoke the provisi ons relating to authors and their works, insofar as
these are consistent with the nature of their own rights.
7. Please state the terms of protection of each right described above and the work or
subject matter to which it applies.
Articles 52 to 56 of Legislative Decree No. 822 stipulate that the term of economic rights
shall be the lifetime of the author and 70 years following his death, regardless of the country of origin
of the work.  In the case of works of joint authorship, the term of protection shall be counted from the
date of the death of the last surviving co-author.
In the case of collective works, computer programs and audiovisual works, economic rights
shall lapse after 70 years following first publication or, in the absence of publication, following
completion.  This limitation shall not affect the economic rights of the individual co-authors of
audiovisual works in relation to their personal contributions.
Follow-up question:
Please clarify how Peruvian legislation applies the terms of protection to the rights of
related right holders and the work or subject-matter to which it applies.
The response to the first part of the question is identical to that given to Question 7 (European
Communities) above.  Legislative Decree No. 822 stipulates that the term of economic rights shall be
the lifetime of the author and 70 years following his death, regardless of the country of origin of thework.  In the case of collective works, computer programs and audiovisual works, economic rights
shall lapse after 70 years following first publication or, in the absence of publication, following
completion.
It should be added that Article 130 of Legislative Decree No. 822 stipulates that the owners of
related rights may invoke the provisions relating to authors and their works, insofar as these are
consistent with the nature of their own rights.
As to the second part of the question, Chapter X of Decision 351 (Common Provisions on
Copyright and Related Rights) deals with related rights and recognizes the following as being coveredby its provisions:
• Performers;
• producers of phonograms;
• broadcasting organizations;IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 16
• the right to exploit fixations of moving images that are not works;
• the right of exploit photographic images that are not works;
• the right to exploit, for publication, an unpublished work having fallen into the public
domain.
Legislative Decree No. 822 (Copyright Law) contains a Title devoted to rights related to
copyright.
For further details on the content of related rights, please refer to Peru's replies to Questions 5
and 6 (European Communities) above.
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPSAgreement) and Article 14.6 of the TRIPS Agreement.
Peruvian legislation applies to all works which, at the moment of coming into force of the
Berne Convention, have not yet fallen into the public domain in their country of origin through expiry
of the terms of protection.
Follow-up question:
Please describe how, and under what provision, Peruvian legislation grants the
retroactive protection provided pursuant to Ar ticle 18 of the Berne Convention and Article 14.6
of the TRIPS Agreement.
Peruvian legislation applies to all works which, at the moment of coming into force of the
Berne Convention, have not yet fallen into the public  domain in their country of origin through expiry
of the terms of protection.
Article 59 of Decision 351 (Common Provisions on Copyright and Related Rights) specifies
that shorter terms of protection that are still current by virtue of the domestic legislation of the
Member countries shall be automatically extended to the expiration of the terms provided for in the
Decision.  Article 60 likewise provides that the ri ghts in works that did not enjoy protection under
national legal provisions prior to Decision 351, owing to their not having been registered, shall
automatically enjoy the protection recognized by the Decision, without prejudice to the rightsacquired by third parties prior to the entry into force thereof.
The First Transitional Provision of Legislative Decree No. 822 (Copyright Law) specifies that
the rights in works and other productions protected under previous legislation shall benefit from the
longer terms of protection provided for in the Law.
C. 
TRADEMARKS
9. Please explain what the requirements of use are, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a
registration in that respect.
Pursuant to the provisions of Article 153 of Decision 486, exclusive right to the use of a
trademark shall be acquired through registration of the latter with the competent national office.
Registration of a trademark shall therefore confer rights; the issuing thereof shall be independent ofIP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 17
proof of any trademark use, and the competent national office shall not require such proof during the
term of the registration.
The concluding paragraph under Article 135 of Decision 486 establishes that certain signs
that may not be registered as trademarks shall be permitted to be registered as such where continueduse of the trademark in the Member country by the applicant or assignor has endowed it with a
distinctiveness in respect of the products or services to which it applies (i.e., where the sign has
acquired a "secondary meaning" conferring distinctiveness).
Registration of a trademark shall be renewed at the request of an interested party without it
being necessary to provide evidence of trademark use.
Article 166 of Decision 486 provides that a trademark shall be considered in use where the
goods or services distinguished by it have been placed in circulation or are available on the market
under that trademark, in the form and amounts that are normal, due account being taken of the nature
of the goods or services and the methods used for their marketing.  A trademark shall also be
considered in use if it distinguishes only goods that are exported from the country in the form andamounts established above.  Use of a trademark in a form different from that in which it was
registered only with respect to details or features that do not alter its distinctive character shall not
constitute grounds for cancellation of registration for non-use, or lessen the protection afforded to the
trademark.
10. Please confirm whether or not your legislation permits that the registration of
trademarks be indefinitely renewable.
Article 152 of Decision 486 establishes that the registration of a trademark shall be for a term
of ten years, counted from the date on which it was granted, and may be renewed for successiveten-year periods.
11. Please describe the special requirements, if any, prescribed by your legislation
concerning the use of a trademark.
Under Article 165 of Decision 486, the competent national office shall, at the request of an
interested party, cancel a trademark registration after an uninterrupted period of non-use in anyMember country, without valid reasons, by the owner, a licensee, or another person authorized by the
owner, of three years immediately prior to the start of the cancellation proceedings.
D. 
GEOGRAPHICAL INDICATIONS
12. Please give examples, if any, of indications that have been considered as common or
generic pursuant to Article 132(c) of Decision 344 and/or Article 221 of Legislative Decree
No. 823.
There are no such examples.
13. Please clarify the meaning of Article 137 of Legislative Decree No. 823 and confirm
whether or not your trademark registration authority refuses a trademark application if it
contains a geographical indication.
Article 137 of Legislative Decree No. 823, which corresponds to Article 160 of Decision 486,
lays down an obligation to supply such inform ation to the consumer when a product is being
marketed, but this does not constitute any impediment to trademark registration.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 18
Pursuant to Articles 135(l) of Decision 486 and 129(i) of Legislative Decree No. 823, the
competent national office shall deny registration of a trademark consisting of a national or foreign
geographical name, where such a name is liable to create confusion as to the goods or services to
which it applies.
14. Please describe how additional protection is granted by your legislation to wines and
spirits.  Please mention other types of products, if any, covered by this additional protection.
Article 215 of Decision 486 provides that Member countries shall prevent the use of an
appellation of origin identifying wines or spirits for goods of this kind not originating in the place
indicated by the appellation of origin in question, even where the true origin of the goods is indicatedor the geographical indication is used in translation or accompanied by expressions such as "kind",
"type", "style", "imitation," or the like.  Member countries may not prevent continued and similar use
of an appellation of origin of another country identifying wines and spirits in connection with goods
or services by any of their nationals who have used  that appellation of origin in a continuous manner
with regard to the same or related goods or serv ices within the territory of the respective Member
country for at least 10 years preceding 15 April 1994 or, in good faith, prior to that date.
Follow-up question:
Please give a list of denominations, if any, which were used by your nationals, in a
continuous manner, for at least ten years preceding 15 April 1994.
Peru recognizes the term "Pisco" as a domestic appellation of origin.  The term has been used
since the sixteenth century to distinguish and protect the grape brandy produced along the coast of the
Departments of Lima, Ica, Arequipa and Moquegua and in the valleys of Locumba, Sama and Caplinain the Department of Tacna.
Pisco is a geographical location on Peru's southern coast.  The name dates back to the
sixteenth century and designates a city, a port and a province which became famous for producing a
grape brandy that took on the name of the region in which it was made and the port through which it
was exported.  Pisco is a Quechua word meaning "bird".  When the Incas arrived in the valley, they
named it "Pisco" because of the many birds living ther e.  Another interpretation is that the term refers
to a community of Indians known as the Pisco, who lived in the same region.  They were potters and
made clay jugs in which they kept alcoholic beverages and maize liquor.  When the Spanish
introduced grapes into the region, the grape brandy produced there was stored in the same type of jug,
and with the passage of time the brandy took on the name of the container in which it was kept.  In the
sixteenth century, Pisco became the name of a village and a port.
The qualities of this brandy stem from an exclusive Peruvian production process developed in
the region, as well as the use of a variety of grape that resulted from a genetic mutation of black
grapes, as the plant adapted to the soil and climate of the Pisco region and its valleys.
It should be pointed out that the Peruvian Government is taking steps with a view to the
recognition of a number of appellations of origin derived from the names of various geographical
regions in the country.
Another important point worthy of mention is that Peru complies with its international
commitments in the sphere of protection of appellations of origin.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 19
E. INDUSTRIAL DESIGNS
15. Please explain whether or not your legislat ion extends to the protection of designs
dictated essentially by technical or functional considerations.  Please explain how textile designs
are protected.
Article 116(b) of Decision 486 specifies that industrial designs the appearance of which was
dictated essentially by technical or functional considerations and which fail to incorporate any
arbitrary contribution by the designer may not be registered as such.  Article 130 of the Decision
likewise stipulates that the protection accorded to an  industrial design shall not apply to elements or
characteristics of the design that were dictated essentially by technical or functional considerations or
that fail to incorporate any arbitrary contribution by the designer.
Textile designs may be protected as industrial designs insofar as they comply with the
requirements of Article 115 of the Decision.
16. Please explain how your legislation protects right holders of a design against importing
of articles bearing an embodied or copied design.
Article 129 of Decision 486 establishes that registration of an industrial design shall confer on
the owner thereof the right to prevent third parties from making use of the design.  By virtue of this
prohibition, the owner of the registration shall be entitled to proceed against any third party who,
without the consent of the right holder, imports products that incorporate or reproduce the industrial
design.  Registration shall likewise confer the right to proceed against any person who markets anarticle the design of which shows only minor differences with respect to the protected design or the
appearance of which is the same as that of the protected design.
17. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
Peruvian legislation does not provide for compulsory licensing of industrial designs.
18. Please indicate for what period of time your legislation grants protection for industrial
designs.
In accordance with Article 128 of Decision 486, registration of an industrial design shall be
for a term of 10 years, counted from the filing of the application in the Member country.  The same
term is laid down in Article 109 of Legislative Decree No. 823.
F. 
PATENTS
19. Please describe how micro-organisms, non-essentially biological processes,
microbiological processes and plant varieties are pr otected in your legislation.  Please explain in
this respect the relevant sections of your legislation.  In particular, Article 27(b) of Legislative
Decree No. 823 (Industrial Property Law) provides th at material which exists in nature or a
replica of such material cannot be considered an invention for the purpose of patenting.  Does
this mean that micro-organisms are excluded from patentability?
Article 20(c) of Decision 486 stipulates that  plants, animals and essentially biological
processes for the production of plants or animal s other than non-biological or microbiological
processes shall not be patentable.  Hence, non-essentially biological and microbiological processes are
patentable.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 20
Plant varieties are protected under Decision 345 (Common Provisions on the Protection of the
Rights of Breeders of New Plant Varieties).  Supr eme Decree No. 008-96-ITINCI (Regulations for the
Protection of Plant Breeders' Rights) regulates the implementation of Decision 345 at the domestic
level.
Peruvian legislation does not specify any exclusion from protection in respect of micro-
organisms, insofar as they constitute inventions.  The Second Transitional Provision of Decision 486
establishes that micro-organisms shall be patentable until other measures are adopted as a result of the
review provided for under Article 27.3(b) of the TRIPS Agreement.
20. Article 28(e) of Decree No. 823 excludes from patentability inventions related to
pharmaceutical products on the WHO's list of essential drugs.  Please indicate on the basis of
which provision of the TRIPS Agreement such an exclusion could be justified and how it would
be in conformity with Article 27.1 of the TRIPS Agreement, which states that patents shall be
available without discrimination as to the field of technology.
Decision 486 does not specify any such exclusion.
21. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.
According to Article 52(b)(ii) of Decision 486, a patent shall confer on its owner the right to
prevent third parties not having the owner’s consen t from carrying out any of the following acts with
respect to a product obtained directly by way of a process:
(a) Making the product;(b) offering for sale, selling or using the product, or importing it for these purposes.Article 67 of Legislative Decree No. 823 establishes that where the subject-matter of the
patent is a process, the protection conferred by the patent shall extend to goods obtained directly
through use of that patent.
22. Please explain the additional conditions, if any, in your legislation other than the
sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g. submission of
justification for access to genetic material or prio r inform consent to its use).  If such additional
conditions exist, please point out the relevant pr ovisions and describe the additional conditions.
In accordance with Article 26 of Decision 486, applications for patents filed with the
competent national office shall contain, in addition to the petition and the description:
(c) One or more claims;
(d) one or more drawings, if needed to understand the invention, which shall be
considered an integral part of the description;
(e) a summary, which pursuant to Article 31 of Decision 486 shall consist in a synthesis
of the technical explanation given in the patent application;
(f) such powers of attorney as may be needed;(g) proof of payment of the prescribed fees;IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 21
(h) a copy of the contract for access, if the products or processes for which a patent
application is being filed were obtained or developed from genetic resources or
byproducts originating in one of the Member countries;
(i) if applicable, a copy of the document that certifies the licence or authorization to use
the traditional knowledge of indigenous, African American or local communities in
the Member countries, where the products or processes whose protection is being
requested were obtained or developed on the basis of the knowledge originating in
any one of the Member countries;
(j) the certificate of deposit of the biological material, if applicable;
(k) if applicable, a copy of the document attesting to the transfer of the patent right by the
inventor to the applicant or assignee.
23. Please indicate whether your patent legisl ation provides for limited exceptions to the
exclusive rights conferred by a patent.  If so, please make a reference to relevant legislation.
Article 53 of Decision 486 stipulates that the patent owner may not exercise the right referred
to in Article 52, cited in the response to Question 21 above, with respect to the following acts:
(a) Acts carried out in a private circle and for non-commercial purposes;(b) acts carried out exclusively to experiment with the subject-matter of the patented
invention;
(c) acts carried out exclusively for the purposes of teaching or scientific or academic
research;
(d) the acts referred to in Article 5 ter of the Paris Convention for the Protection of
Industrial Property;
(e) where the patent protects biological material that is capable of being reproduced,
except for plants, using that material as a basis for obtaining a viable new material,except where the patented material must be used repeatedly to obtain the new
material.
Article 54 of Decision 486 provides that a patent owner shall not confer on its owner the right
to prevent a third party from making commercial use of a product protected by the patent, once thatproduct has been introduced into trade in any country by the owner or another person authorized by or
with economic ties to the patent owner.
For the purposes of the preceding paragraph, two persons shall be considered to have
economic ties when one of the persons is able to exert a decisive influence on the other, either directlyor indirectly, with respect to the exploitation of the patent, or when a third party is able to exert such
influence over both persons.
Where the patent protects biological material that is capable of being reproduced, the patent
coverage shall not extend to the biological material obtained by means of the reproduction,multiplication or propagation of the material that wa s introduced into trade as described in the first
paragraph, provided that it was necessary to reproduce, multiply or propagate the material in order to
fulfil the purposes for which it was introduced into trade and that the material so obtained is not used
for multiplication or propagation purposes.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 22
Article 55 of Decision 486 stipulates that the rights conferred by a patent may not be asserted
against a third party that, in good faith and before the priority date or the filing date of the application
on the basis of which the patent was granted, was already using or exploiting the invention, or hadalready made effective and serious preparations for such use or exploitation.  In such case, the said
third party shall have the right to start or continue using or exploiting the invention, but that right may
only be assigned or transferred together with the business or company in which the use or exploitation
is taking place.
24. Article 75 of Decree No. 823 allows the granting of compulsory licences if, after a period
of three years after the grant of the patent or four years after the patent application, the patenthas not been "exploited" within  the meaning of Articles 70 and 71 of the Decree in the
Cartagena Agreement Member country where the patent application was filed.  Please clarify
whether this entails that a mere failure to produce the patented product would provide
sufficient grounds for issuing a compulsory li cence in the country where the application was
filed, even if the product in question is impo rted in sufficient quantities to meet market
demand?
Article 59 of Decision 486 provides that the owner of a patent shall be under the obligation to
exploit the patented invention in any Andean Comm unity Member country, either directly or through
a person authorized by him.  Article 60 specifies that exploitation shall be understood to mean theindustrial manufacture of the patented product or the full use of the patented process, including the
distribution and marketing of the results thereof on a scale sufficient to satisfy the demands of the
market.  Exploitation shall also be understood to mean the importation of the patented product,
including its distribution and marketing, where this is done on a scale sufficient to satisfy the demands
of the market.  Where the patent refers to a process that does not result in a product, the requirementsfor marketing and distribution shall not be enforced.  Consequently, mere failure to produce the
patented product would not provide sufficient grounds for issuing a compulsory licence in the country
where the application was filed, if the product in question is imported in sufficient quantities to meet
market demand.
25. Please explain to what extent Article 75 of Decree No. 823 ensures that:  (1) a proposed
user has made efforts to obtain authorization fr om the right holder on reasonable commercial
terms and conditions; and (2) that such efforts have not been successful within a reasonable
period of time.  In this context, how and on what basis do you define "reasonable period of
time"?
(1) Article 61 of Decision 486 (which corresponds to Article 75 of Legislative Decree No. 823)
establishes that a compulsory license shall be granted only if, prior to applying for it, the proposed
user has made efforts to obtain a contractual licence from the patent holder on reasonable commercial
terms and conditions and such efforts were not successful within a reasonable period of time.
(2) It shall be for the competent national office to determine what constitutes a "reasonable period
of time", in the light of the circumstances specific to each case.
26. Article 75 of Decree No. 823 provides that the compulsory licensee shall pay an adequate
remuneration to the patent holder.  Does this im ply that the economic value of the authorization
be taken into account?
Article 62 of Decision 486 stipulates that the competent national office shall establish the
scope or coverage of the licence and in particular shall specify the period for which it is granted, the
subject-matter of the licence, the amount of the rem uneration, and the conditions for payment thereof.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 23
The remuneration shall be set at an adequate level, according to the circumstances specific to each
case and, in particular, the economic value of the authorization.
27. Please indicate where your legislation pr ovides that any decision relating to the
authorization of a compulsory licence shall be subject to judicial or other independent review bya distinct higher authority.
Pursuant to the provisions of Article 11 of Decree Law No. 25868 (Law on the Organization
and Functions of INDECOPI), an application for a ppellate review may be filed with the Intellectual
Property Chamber of the Tribunal for the Defence of Competition and Intellectual Property Protection
against any decision by INDECOPI's Office of In ventions, which is responsible for authorizing
compulsory licensing.
Under Article 17 of Decree Law No. 25868, rulings handed down by the Tribunal may be
challenged by application, at first instance, to the Civil Chamber of the Supreme Court.  Appeals
against the Civil Chamber's rulings may be lodged, at second instance, with the Chamber of
Constitutional and Social Law of the Supreme Court.
28. Please indicate whether and where your legislation provides that the scope and duration
of a compulsory licence must be limited to the purpose for which it was authorized.
Article 68(d) of Decision 486 specifies that the scope and duration of compulsory licences
shall be limited to the purposes for which they were authorized.
29. Please indicate which provision of your legislation provides an opportunity for judicial
review of any decision to revoke or forfeit a patent.
Pursuant to the provisions of Article 11 of Decree Law No. 25868 (Law on the Organization
and Functions of INDECOPI), an application for a ppellate review may be filed with the Intellectual
Property Chamber of the Tribunal for the Defence of Competition and Intellectual Property Protection
against any decision by INDECOPI's Office of  Inventions, which is responsible for patent
invalidation.
Under Article 17 of Decree Law No. 25868, rulings handed down by the Tribunal may be
challenged by application, at first instance, to the Civil Chamber of the Supreme Court.  Appeals
against the Civil Chamber's rulings may be lodged, at second instance, with the Chamber of
Constitutional and Social Law of the Supreme Court.
30. Please mention if your legislation grants additional protection for innovations after the
20 years of patent protection have lapsed.
Under Peruvian legislation, protection for innovations does not extend beyond the 20-year
term of patent protection.
31. Please explain how your legislation provide s for the enhanced patent protection of
patents or patent applications pending on 1 January 1995.
Peruvian legislation establishes a patent regime that is consistent with the levels of protection
prescribed under the TRIPS Agreement.  In keeping with the First Transitional Provision of
Decision 486, any industrial property right valid ly conferred under previous Andean Community
legislation shall be governed by the provisions that were applicable on the date on which it was
granted.  As regards the terms of validity, however, pre-existing intellectual property rights shall be
adjusted to the provisions of Decision 486, which shall also apply with respect to use, exercise,IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 24
obligations, licensing, renewal and extensions.  In the case of pending applications, Decision 486 shall
apply to such stages as had not yet been completed on the date of its entry into effect.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
32. Please describe how your legislation protects topographies.
Decision 486 contains a Title (Articles 86 to 112)  entirely devoted to the protection of layout-
designs of integrated circuits.  The following definitions are set forth in Article 86:
(a) Integrated circuit: a product, in final or intermediate form, of which at least one
element is an active element and some or all the interconnections are an integral part
of the body or surface of a piece of material that is intended to be used electronically;
(b) layout-design:  the three-dimensional arrangement of the elements, regardless of
form, of which at least one is an active element, and their interconnection in an
integrated circuit, as well as that three-dimensional arrangement prepared for use in
an integrated circuit to be manufactured.
Article 87 of the Decision stipulates that a layout-design shall be protected when it constitutes
an original design.  A layout-design shall be consider ed original when it is the result of its creator’s
intellectual efforts and is not in common use in the integrated circuit industry.  Where composed of
one or more elements in common use in the integrated circuit industry, a layout-design shall beconsidered original if the combination of those elements, as an assembly, meets this requirement.
33. Please explain what protection your national  legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographies
including integrated circuits or other articles in which a topography is incorporated inaccordance with Article 36 of the TRIPS Agreement.
Article 99 of Decision 486 establishes that protection shall apply irrespective of whether the
integrated circuit in which the registered layout-design has been incorporated has been manufactured
and irrespective of whether the layout-design has been incorporated in an integrated circuit.
Registration of a layout-design of an integrated circuit confers on its holder the right to impede third
parties from performing any of the following acts:
(a) Reproducing, through incorporation in an integrated circuit or in any other way, all or
part of the protected layout-design that complies with the requirements for originality;
(b) marketing, importing, offering for sale, selling or otherwise distributing a protected
layout-design or an integrated circuit incorporating a protected layout-design;  or
(c) marketing, importing, offering for sale, se lling or otherwise distributing an article
incorporating such a protected integrated circuit, only insofar as it continues to
contain an unlawfully reproduced layout-design.
Protection conferred by registration shall cover only the layout-design itself and shall not
extend to any idea, process, system, technique or data encoded or incorporated in the layout-design.
Article 100 of Decision 486 provides that the right conferred by registration of the layout-
design may only be asserted against acts having industrial or commercial purposes.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 25
34. Please explain how your legislation provi des for the derogation from Article 36 as
specified in Article 37 of the TRIPS Agreement whereby a person has no knowledge or
reasonable grounds to know, when acquiring an integrated circuit or an article incorporating
such an integrated circuit, that it  contains an unlawful topography.
In keeping with Article 104 of Decision 486, perf ormance of any of the acts referred to in
Article 99 in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or
any article incorporating such an integrated circuit sh all not be considered an infringement of rights to
a registered layout-design where the person performing any such act did not know, and had no
reasonable ground to know, that the layout-design had been unlawfully reproduced.  Once the person
has been advised of the unlawful reproduction of the layout-design, he may continue to perform any
of the aforementioned acts with respect to the stock on hand or previously ordered items but shall beliable to pay the right holder, at the latter's request, compensation equivalent to such a reasonable
royalty as would be payable under a contractual licence.
35. Please state the term of protection granted by your legislation to topographies.
According to Article 98 of Decision 486, exclusive rights over a registered layout-design shall
have a term of ten years from the earliest of the following dates:
(a) The last day of the year in which the layout-design was first exploited commercially
anywhere in the world;  or
(b) the date on which the application for registration was filed with the competent
national office of the Member country concerned.
The term of protection of a registered layout-design shall lapse in any case upon expiry of a
period of 15 years from the last day of the year in which the layout-design was created.
36. Please indicate whether and where your legislation provides that, in the case of semi-
conductor technology, a compulsory licence shall only be granted for public non-commercial use
or to remedy a practice determined after judicial or administrative process to be anti-
competitive.
Article 68(e) of Decision 486 on compulsory licen sing of patents of invention provides that,
in the case of patents protecting semi-conductor technology, a compulsory license shall be authorized
only for public non-commercial use or to remedy a practice declared by the competent national
authority to be anti-competitive.  This provision corresponds to Article 31(c) of the TRIPS
Agreement.
H. 
PROTECTION OF UNDISCLOSED INFORMATION
37. Please explain whether or not your legislatio n grants a defined period of time for the
protection of undisclosed information.  If so, please give the time-span.
In keeping with Article 263 of Decision 486, protection of a business secret shall last so long
as the conditions set out in Article 260 exist, that is, so long as the undisclosed information is secret,
has commercial value because it is secret and has been the subject of reasonable steps by the person
lawfully in control of the information to keep it secret.
38. Please explain how your legislation defines "undisclosed information".IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 26
Pursuant to Article 260 of Decision 486, a business secret shall be considered to be any
undisclosed information within the lawful control of an individual person or legal entity that may be
used for any productive, industrial, or commercial activity and that is capable of being transmitted to a
third party, so long as that information:
(a) Is secret in the sense that it is not, as a body or in the precise configuration and
assembly of its components, generally known among or readily accessible to persons
within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret;  and
(c) has been the subject of reasonable steps by the person lawfully in control of the
information to keep it secret.
The information constituting a business secret may be related to the nature, characteristics, or
purpose of the products, production methods or proc esses, or the means or forms of distribution or
marketing of goods or rendering of services.
39. Please explain how your legislation de fines data submitted to governments or
governmental agencies.
Article 266 of Decision 486, which corresponds to Article 39.3 of the TRIPS Agreement and
deals with business secrets, specifies that Member countries, when requiring, as a condition for
approving the marketing of pharmaceutical or agro-chemical products that use new chemical entities,
the submission of undisclosed test or other data the origination of which involves a considerable
effort, shall protect such data against unfair commercial use.
In particular, to ensure transparency in administrative procedures, the documents, background
material, studies, orders, opinions, statistical data and any other information that public-sector entities
have in their power shall be made available to  private individuals who so request, except for
documents and information that may affect national security and foreign relations, and information
concerning private individuals which is restricted in accordance with the legal provisions in force or
which refers to trade or technological secrets.  This is regulated under the Framework Law on thePromotion of Private Investment, appr oved by Legislative Decree No. 757.
It is understood that the authorities empower ed to grant approval for the marketing of
pharmaceutical and agro-chemical products are non-profit-making, public-sector entities that perform
a function expressly entrusted to them by law.  The use made by these authorities of the data withintheir own institutions and in fulfilment of their statutory duty to authorize the marketing of such
products does not constitute commercial or unfair use.  The data is used for government, non-
commercial purposes, and the use is by definition lawf ul since it is required by the laws that govern
the terms of reference and operation of these authorities.
I. 
ENFORCEMENT
40. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Decision 486 establishes that the following actions may be brought to protect industrial
property rights.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 27
Action for claims
Article 237 of Decision 486 provides that, where a patent for, or the registration of, an
industrial design has been requested or obtained  by a party with no right to such a patent or
registration or to the detriment of another party possessing that same right, the aggrieved party maylodge a claim with the competent national authority, requesting the transfer of the pending application
or right granted or requesting recognition as a co-applicant or co-owner of the right in question.
Likewise, where an application for a trademark registration has been filed or a trademark has
been obtained to the detriment of another party possessing the same right, the aggrieved party may
lodge a claim with the competent national authority, requesting recognition as a co-applicant or co-
owner of that right.
Action for infringement of rights
Article 238 of Decision 486 provides that the owner of a right protected under the Decision
may bring an action before the competent national authority against any party infringing upon thatright or performing acts which point to an imminent risk of infringement.
Action for damages
Article 239 of Decision 486 provides that the owner of a patent may bring an action for
damages in the event of injury resulting from unauthorized use of the invention or utility model
between the time when the invention or utility model became public knowledge and the
corresponding application was opened for consultation and the date on which the patent was granted.
Once administrative channels have been exhausted, the owner of an intellectual property right
may bring an action for claims or damages before the civil courts.
Civil proceedings may be used to seek indemnification for damages caused by the
infringement of intellectual property rights, duly established at the administrative level.  Such
indemnification shall compensate for losses sustained and loss of profits resulting from the violation.
The payment of court costs and litigation expenses may also be ordered.  Pursuant to Article 246 of
Legislative Decree No. 823 (Industrial Property Law), the amount of lost profits shall be determinedon the basis of criteria such as:
(1) The profits that the owner would have realized through use or exploitation of the right
had the infringement not occurred;
(2) the profits actually realized by the infringer as a result of the infringement;
(3) the price that the infringer would have had to pay the holder for the grant of the
licence that would have enabled him to engage in rightful use.
In cases of administrative litigation (Article 540 of the Code of Civil Procedure), the civil
courts may overturn decisions taken at the administrative level.
For details on precautionary measures and criminal proceedings, please refer to the replies to
Questions 48 and 53, respectively.
41. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies of final administrative decisions.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 28
Under Article 17 of Decree Law No. 25868, rulin gs handed down by the Tribunal for the
Defence of Competition and Intellectual Property Protection (second and final administrative
instance) may be challenged by application, at fi rst instance, to the Civil Chamber of the Supreme
Court.  Appeals against the Civil Chamber's rulings may be lodged, at second instance, with theChamber of Constitutional and Social Law of the Supreme Court.
Decisions and rulings by INDECOPI's Co mmissions, Offices and Tribunal shall be
enforceable with immediate effect, without prejudi ce to the right of the party concerned to lodge
appeals available under the law.  Enforcement shall be suspended only if the INDECOPI Tribunal or
the Supreme Court of Justice so decide.
42. Please describe how your legislation authorizes judges to order production of evidence
by the opposing party.  Please give precise information on what measures are taken to ensure
the protection of confidential information.
Article 189 of the Code of Civil Procedure stipulates that the parties shall provide evidence in
their pleadings.  Each of the parties is empowered to request the presentation of documents under the
control of the other party as evidence.  The judge may order such a presentation.  Failure by a party to
present the documents as ordered is appraised by the judge at the time of the ruling, without prejudice
to the imposition of a penalty.
Article 194 of the Code of Civil Procedure provides that, if the evidence furnished by the
parties is not sufficient to form an opinion, the judge may order the production of such additional
evidence as is deemed necessary.
As regards administrative proceedings, Article 76 of Supreme Decree No. 02-94-JUS (Single
Harmonized Text of the Law on General Regulations for Administrative Procedures) states that where
the evidence furnished by the parties is not sufficient to form an opinion, the administrative authority
may order the production of such additional evidence as is deemed necessary.
Article 2 of Legislative Decree No. 807 (Law on the Functions, Regulations and Organization
of INDECOPI) specifies that INDECOPI may require natural or legal persons to produce any type of
document.  Any party who provides false or misleading information, destroys or alters any book,record or document requested shall be punishable by a fine, which shall be doubled in the event of
repeat offences.
As to the protection of confidential information, by virtue of the constitutional principle of the
right of defence all evidence and information in proceedings shall be made available to the other partyand may be challenged by any lawful means.  As proceedings are public, the information thus
furnished is not confidential, except as regards matters of individual privacy and honour, where
confidentiality applies in general both in and beyond the courtroom. Article 184.6 of the Single
Harmonized Text of the Organic Law on the Judiciary stipulates that judges shall observe absolute
secrecy in cases heard by them.
Pursuant to Article 6 of Legislative Decree No. 807, any information received by INDECOPI
that constitutes an industrial or trade secret shall be  declared confidential.  In such cases, all necessary
measures shall be taken to guarantee the secrecy and confidentiality of the information, on pain of
liability.
In civil cases, INDECOPI (as co-defendant) shall observe the principle of secrecy regarding
confidential information and shall not furnish it to the judges.  However, where judges request
INDECOPI to supply such information, it shall be under the obligation to comply.  Thereafter, the
judges shall assume direct liability in respect of the secrecy and confidentiality of the information.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 29
43. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement.
Article 241(a) of Decision 486 provides that the plaintiff or complainant may request the
competent national authority to order the cessation of the acts constituting the infringement.
Likewise, under Article 246(a) of Decision 486 the immediate cessation of the acts
constituting the alleged infringement may be ordered as a precautionary measure.
Article 177(a) of the Copyright Law stipulates that the copyright owner may request, as a
precautionary measure, the immediate suspension or cessation of the unlawful activity.
44. Please quote what provisions of your legislation authorize judges to order the payment
to the right holder of adequate damages to compensate the injury which he suffered.
Pursuant to Article 245 of Legislative Decree No. 823, indemnification for damages shall
compensate for losses sustained and loss of profits resulting from infringement of a right.  The amount
of lost profits shall be determined on the basis of criteria such as:
(a) The profits that the right holder would have realized through use or exploitation of
the right had the infringement not occurred;
(b) the profits actually realized by the infringer as a result of the infringement;(c) the price that the infringer would have had to pay the holder for the grant of the
licence that would have enabled him to engage in rightful use.
Article 196 of Legislative Decree No. 822 (Copyrig ht Law) provides that the owners of any
of the rights covered by the Law, their representatives or collective management societies may,
without prejudice to any other action that may be available to them, seek the cessation of unlawful
activities and demand compensation for the material and moral damage resulting from infringement,
and also recovery of court costs.
45. Please quote what provisions of your legislation authorize judges to order the payment
of the right holder's expenses by the infringer.
Under Article 412 of the Code of Civil Procedure, the reimbursement of court costs and
litigation expenses shall not have to be requested and shall be the responsibility of the losing party.Court costs encompass judicial fees, fees for auxiliary judicial bodies and other judicial costs incurred
during the proceedings.  Litigation expenses comprise the fees of the attorney of the successful party,
together with a percentage for the College of Attorneys of the respective judicial district.
46. Please explain if and how judges have the authority to order that infringing goods are
placed outside channels of commerce or destroyed.
Article 241(c) and (f) of Decision 486 stipulates that the plaintiff or complainant in an
infringement case may request the competent national authority to order the withdrawal from
commercial channels of the products resulting from the infringement, including packaging,wrappings, labels, and printed, advertising or other materials, along with the materials and implements
predominantly used to commit the infringement, and the adoption of such measures as may be
necessary to avoid continuation or repetition of the infringement, including the destruction of the
products, materials or implements concerned.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 30
Article 246(b) of Decision 486 specifies that the withdrawal from commercial channels of the
products resulting from the alleged infringement, including packaging, wrappings, labels, and printed,
advertising or other materials, along with the materials and implements predominantly used to committhe infringement, may be ordered as a precautionary measure.
Article 255 (second paragraph) of Decision 486 provides for the possibility of ordering the
destruction of counterfeit trademark goods seized by the customs authorities.
Article 178 of Legislative Decree No. 822 stipulates that the Copyright Office may order the
destruction of the infringing merchandise and any of the materials or equipment used for theperpetration of the infringement.
47. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
Precautionary measures shall be ordered on behalf of and under the responsibility of the
plaintiff.
In civil cases, compensation may be requested for damages resulting from the application of
precautionary measures.
In addition, Article 613 of the Code of Civil Procedure provides for counter-security as a
means of ensuring that a person subject to a precautionary measure is compensated for any damages
resulting from its application.
48. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
Decision 486 contains a Chapter (Articles 245 to  249) dealing specifically with precautionary
measures.  With respect to industrial property rights , its provisions reflect those set out in Article 50
of the TRIPS Agreement.
As regards judicial proceedings, Article 608 of the Code of Civil Procedure provides that any
judge may, at the request of a party, order precautionary measures (provisional measures) prior to, or
in the course of, proceedings, in order to ensure enforcement of the final ruling.
Likewise, Article 198 of Legislative Decree No. 822 specifies that, at the request of the right
holder, his representative or the relevant management society, a judge shall order the immediateapplication of such precautionary measures as may be necessary to avoid perpetration of an
infringement or the continuation or repetition of an infringement that has already been committed,
including the following measures in particular:
- Seizure of the income realized through the unlawful activity or, where appropriate, of
the amounts owed by way of remuneration;
- immediate suspension of the unlawful manufacture, reproduction, distribution,
communication or importation, as the case may be;
- sequestration of the copies produced or used and of the material or equipment
employed for the infringing activity.
In addition, an unforeseen precautionary measure that satisfactorily ensures enforcement of
the final ruling may also be requested and granted.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 31
Precautionary measures (provisional measures) may be taken inaudita altera parte , for the
purpose of ensuring application of the final ruling.  Under Article 611 of the Code of Civil Procedure,
if a judge considers, in the light of the explanations and the evidence furnished, that the right claimed
is justified and that a preventive decision is necessary because any delay in the proceedings would bedangerous or for any other justifiable reason, he shall order a precautionary measure in the form
requested or as he deems appropriate in view of the nature of the principal claim.
Article 610 of the Code of Civil Procedure stipulates that any person requesting a
precautionary measure (provisional measure) shall explain to the judge the grounds for applying for
such a measure (by proving title to the claimed right and the risk of delay); indicate the form of the
precautionary measure;  where appropriate, specify the goods to which the measure should apply andthe amount involved;  offer counter-security and designate the corresponding auxiliary judicial body.
For the precautionary measure to remain in effect, at the request of the person possessing the
right to the measure and at any stage of the proceedings, the measure may be changed, either by
altering its form or by modifying the goods to which it applies or the amount involved.
The purpose of counter-security is to ensure that the party subject to a precautionary measure
is compensated for any damages caused by the executio n thereof.  Acceptance of the counter-security
offered by the applicant (that is, of the nature and amount thereof) shall rest with the judge, who may
agree to it, or adjust, modify or change it as he deems necessary.
All precautionary measures involve a pre-judgment and are provisional, expressed in writing
and variable.
As regards administrative cases, Article 27 of Legislative Decree No. 807 establishes that, at
any stage of the proceedings, either ex officio or at the request of a party, INDECOPI may order one
or more of the following precautionary measures:
- The cessation of the acts that are the subject of the complaint;- the seizure, deposit or arrestment of the products, labels, packaging and advertising
material that are the subject of the complaint;
- the preventive cessation of advertising that is the subject of the complaint;- the adoption of such measures as may be necessary for the customs authorities to
prevent the entry into Peru of the product s that are the subject of the complaint;
- the temporary closure of the establishment of the defendant;- any other measure required to prevent any prejudice from occurring.
Article 177 of the Copyright Law likewise indicates some of the provisional measures that
may be requested by copyright holders, namely:
- The immediate suspension or cessation of the unlawful activity;
- the attachment or seizure and withdrawal from commercial channels of any copies
produced or used and of the material or equipment employed for the infringing
activity;IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 32
- inspection, attachment or seizure without prior notice.
Precautionary measures (provisional measures) may be taken inaudita altera parte , for the
purpose of assuring enforcement of the final ruling.  Article 27 of Legislative Decree No. 807provides that such measures may be ordered at any stage of infringement proceedings, either
ex officio or at the request of a party, to ensure ap plication of the final ruling, that is, to prevent any
prejudice from arising as a result of the alleged infringement or to ensure cessation of the infringing
act.
There is no special procedure at the administrative level for the adoption of provisional
measures.  These must be requested in the context of proceedings for infringement of intellectualproperty rights.  (It should be noted that such action may also be brought where there is an imminent
risk of infringement of the holder's rights.)
Article 241 of Legislative Decree No. 823 specifies that precautionary measures shall be
ordered on behalf of and under the responsibility of the plaintiff.
Article 181 of Legislative Decree No. 822 stipulates that the Copyright Office is empowered
to order preventive or precautionary measures at the request of a single party, without that party
having to give prior notice to the other, especially where any delay might cause irreparable harm to
the right holder or where there is an imminent risk of evidence being destroyed.
49. Please identify the competent authorities in  your jurisdiction that receive requests from
right holders for an application to suspend th e release of counterfeit goods by the customs
authorities.
In Peru, intellectual property rights are protected at the administrative, civil and criminal
levels.  Most cases are settled through administrative channels.
Requests for the application of border measures may be filed with the National Institute for
the Defence of Competition and Intellectual Property Protection (INDECOPI), under an action for
infringement of intellectual property rights.  Border measures may also be requested as a
precautionary measure in civil or criminal cases.  In both instances, border measures are executed bythe competent customs authorities.
50. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
Article 250 of Decision 486 provides that the owner of a registered trademark who has valid
grounds for suspecting that the importation or exportation of counterfeit trademark goods will take
place may request the competent national authority to suspend the customs operation.
51. Please quote the provisions of your legisl ation authorizing the competent authorities to
order the destruction or disposal of infringing goods.
See response to Question 46.
Article 241(c) and (f) of Decision 486 stipulates that the plaintiff or complainant may request
an order to withdraw from commercial channels  the products resulting from an infringement,
including packaging, wrappings, labels, and printe d, advertising or other materials, along with the
materials and implements predominantly used to commit the infringement, and the adoption of such
measures as may be necessary to avoid continuation or repetition of the infringement, including the
destruction of the products, materials or implements concerned.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 33
As regards seized goods, the Copyright Office may order the destruction of the infringing
merchandise and any of the materials or equipment used for the perpetration of the infringement,
pursuant to the provisions of Article 178 of Legislative Decree No. 822.
52. Please indicate whether or not your legislation provides for a de minimis  imports
exception.
Article 256 of Decision 486 specifies that small quantities of goods of a non-commercial
nature forming part of travellers' luggage or sent in small consignments shall be excluded from
application of the provisions relating to border measures.
53. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
The public authority responsible for instituting criminal proceedings is the Public Prosecutor's
Office, which is an autonomous State body whose principal functions are to uphold the law and
citizen's rights and to defend the public interest.   In the case of intellectual property rights, the
Nineteenth Criminal Provincial Prosecutor's Office in Lima and Ad Hoc Office for Intellectual
Offences is the competent authority.  INDECOPI, acting through the Public Prosecutor's Office, is
also empowered to initiate criminal proceedings.
The Public Prosecutor's Office may institute proceedings ex officio (on its own initiative)
when there are reasonable grounds to believe that an offence has been committed, or at the request of
the aggrieved party (on the basis of a complaint).
Private individuals are not authorized to bring criminal action directly for offences against
intellectual property rights and must do so through the competent Public Prosecutor's Office.
Peru's Criminal Code classifies the following as offences against intellectual property rights:
Offences against copyright and related rights
- Unlawful use of an intellectual creation – Articles 216 and 217 of the Criminal Code;
- plagiarism – Article 218 of the Criminal Code;
- exceeding authorized number of copies or circulation – Article 219 of the Criminal
Code;  and
- sale or distribution of illegally produced copies – Article 220 of the Criminal Code.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 34
Offence Penalty
Unlawful use of an intellectual creation 1-3 years' imprisonment and a fine of
10-60 days*In aggravated cases:  2-6 years' imprisonment and a fine
of 30-90 days
Plagiarism 2-8 years' imprisonment and a fine of 60-120 days
Exceeding authorized number of copies or
circulation2-8 years' imprisonment and a fine of 60-180 days
Sale or distribution of illegally produced
copies4-8 years' imprisonment and a fine of 90-365 days
*A day fine is a minor penalty determined by the judge.  It represents a percentage of the earnings of
the person accused.
In such cases, there is provision for the prior attachment of the illegal copies and of the equipment or
means used to commit the offence.  There is also pr ovision for searching or entering the place in which the
criminal offence was committed.
Offences against industrial property
- Unauthorized use of a patent – Article 222 of the Criminal Code;
- unauthorized use or sale of an industrial design – Article 223 of the Criminal Code;
- improper use of an expression accrediting a person as the owner of an industrial
design – Article 224 of the Criminal Code;  and
- unlawful use of a mark – Article 225 of the Criminal Code.
Offence Penalty
Unauthorized use of a patent 2-4 years' imprisonment and a fine of 60-365 days,
as well as disqualification**
Unauthorized use or sale of an industrial design 1-4 years' imprisonment and a fine of 60-365 days,as well as disqualification
Improper use of an expression accrediting a
person as the owner of an industrial design1-4 years' imprisonment and a fine of 60-365 days,
as well as disqualification
Unlawful use of a mark 1-4 years' imprisonment and a fine of 60-365 days,
as well as disqualification
**Disqualification means loss of the capacity to exercise on one's own account or through a third party
the profession, trade, art or industry specified in the sentence.
IV. REPLIES TO QUESTIONS POSED BY JAPAN
A. GENERAL
1. Please explain how Decisions 344, 345, 351 a nd 391 of the Commission of the Cartagena
Agreement are implemented in your country, indicating whether they are applied directly or
through national legislation.
The Decisions of the Commission of the Cartagena Agreement on the Common Industrial
Property Regime (Decisions 344 and 486), the Comm on Provisions on the Protection of the Rights ofIP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 35
Breeders of New Plant Varieties (Decision 345), the Common Provisions on Copyright and Related
Rights (Decision 351) and the Common Regime on Access to Genetic Resources (Decision 391) are
embodied directly in Peruvian legislation, as stipulated in Article 55 of Peru's Political Constitution,
which specifies that treaties concluded by the State and in force form part of national law.
Likewise, Article 3 of the Treaty Establishing the Court of Justice of the Andean Community
provides that Decisions of the Andean Council of Ministers for Foreign Affairs or the Commission
shall apply directly in the Member countries as of their date of publication in the Agreement's Official
Journal, unless the Decisions themselves specify a later date.
B. COPYRIGHT
2. Please explain exceptions or exemptions from national treatment and most-favoured-
nation treatment under the Law on Copyright and Related Rights, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
Peru's domestic legislation on copyright and related rights (Decision 351 and Legislative
Decree No. 822) does not allow exceptions from application of the principles of national treatmentand most-favoured-nation treatment set forth in Articles 3 and 4 of the TRIPS Agreement,
respectively.
C. 
INDUSTRIAL DESIGNS
3. Please explain how Article 25.2 of the TRIPS Agreement, which provides protection for
textile designs, is implemented in your country, whereas Article 58 of Decision 344 stipulates
that "industrial designs relating to clothing shall not be registrable".
Decision 486 does not specify the exclusion previously found in Article 58 of Decision 344,
referred to in this question.
Article 116 of Decision 486 (Common Industrial Property Regime) lists the designs that may
not be registered but does not include industrial designs relating to clothing; these are thus protected
under the industrial property regulations.
4. Please explain how Article 26.3 of the TRIPS Agreement, which requires protection of
industrial designs for at least ten years, is implemented in your country, whereas Article 65 ofDecision 344 stipulates that the registration of an industrial design shall have a term of eight
years, counted from the filing date of the application.
Article 128 of Decision 486 specifies that the term of registration of an industrial design shall
be ten years as of the date of filing of the application in the Member country, in conformity with theprotection granted under Article 26.3 of the TRIPS Agreement.
It should be noted that a term of ten years for protection of industrial designs is also laid down
in Article 109 of Legislative Decree No. 823 (Industrial Property Law of 24 April 1996).
V. RESPONSES TO QUESTIONS POSED BY SWITZERLAND
A. 
PATENTS
1. Are all categories of products subject to patent protection under your law or are there
any exceptions?  If so, please explain in detail what these exceptions are and how they apply.  In
particular, are all pharmaceutical products patentable?IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 36
Article 14 of Decision 486 (Common Industrial Property Regime) specifies that patents shall
be granted for inventions, whether products or processes, in all areas of technology, that are new,
involve an inventive step and are industrially applicable.
Pursuant to Article 15, the following shall not be considered inventions:(a) Discoveries, scientific theories and mathematical methods;(b) all or part of living beings as found in nature, natural biological processes, and
biological material existing in nature or capable of being separated, includinggenomes or germplasm of any living being;
(c) literary and artistic works or any other work protected by copyright;(d) plans, rules and methods for the pursuit of intellectual activities, playing games or for
economic and business activities;
(e) computer programs or software, as such; and methods of presenting information.In addition, Article 20 specifies that the following shall not be patentable:(a) Inventions whose commercial exploitation in the territory of the respective Member
country must be prevented in order to protect ordre  public  or morality.  Commercial
exploitation of an invention shall not be considered contrary to ordre  public  or
morality solely because there is a legal or administrative provision which prohibits orregulates such exploitation.
(b) Inventions whose commercial exploitation in the respective Member country must be
prevented in order to protect human or animal health or life or to conserve plants or
the environment.  Commercial exploitation of an invention shall not be considered
harmful to human or animal life or health or the conservation of plants or the
environment solely because there is a legal or administrative provision whichprohibits or regulates such exploitation.
(c) Plants, animals and essentially biological processes for the production of plants or
animals other than non-biological or microbiological processes.
(d) Therapeutic or surgical methods for the treatment of humans or animals and
diagnostic methods applicable to human beings or animals.
All pharmaceutical products are thus patentable provided that they meet the requirements of
patentability, i.e. they are new, involve an inventive step and are industrially applicable, and are notcovered by the provisions of the aforementioned Articles 15 and 20.
Follow-up question:
Pursuant to Article 15(e) of Decision 486 (Common Industrial Property Regime),
"computer programs or software, as such" shall not be considered inventions.  Could you please
explain whether in practice this general exception means that in the field of software, no patents
will be granted even if the requirements of patentability are fulfilled (i.e. if it is new, involves an
inventive step and is industrially applicable?) or please indicate under what conditions a patent
in this field will be granted.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 37
Computer programs or software are literary works protected, pursuant to Article 10 of the
TRIPS Agreement, by copyright legislation, which under the Common Andean Regime affords more
extensive protection than patent legislation (Art icles 23ff. of Decision 351 – Common Provisions on
Copyright and Related Rights – and Articles 59ff. of Legislative Decree No. 822 – Copyright Law).
Indeed, copyright is not subject to any formalities and is recognized from the moment of creation ofthe work; the terms of protection are also longer.
2. Does your law, in accordance with Articl e 27.1 in combination with Article 31 of the
TRIPS Agreement, recognize importation as "working a patent" (and therefore preclude
compulsory licences)?
According to Article 60 of Decision 486, exploitation shall be understood to mean the
industrial manufacture of the patented product or the full use of the patented process, including the
distribution and marketing of the results thereof on a scale sufficient to satisfy the demands of the
market.  Exploitation shall also be understood to mean the importation of the patented product,
including its distribution and marketing, where this is done on a scale sufficient to satisfy the demands
of the market.  Where the patent refers to a process that does not result in a product, the marketing anddistribution requirements shall not be enforced.  Pursuant to Article 59 of Decision 486, exploitation
may be in Peru or in any other Andean Community Member country.
The compulsory licensing regime shall apply when a patent has not been exploited in
conformity with Article 60.
Compulsory licensing shall not therefore apply where a patented product is being imported,
distributed and marketed.
3. Does your law make compulsory licences subject to the conditions enumerated in
Article 31 of the TRIPS Agreement?  If exception s are provided for, please describe in detail
what these exceptions are and how they apply in your law.
The requirements set out in Article 31 of the TRIPS Agreement concerning "Other Use
Without Authorization of the Right Holder" are incorporated in Title II "On Patents", Chapter VII
"On the Regime of Compulsory Licensi ng", Articles 61-69, of Decision 486.
Peru's legislation does not allow for exceptions to the requirements listed in Article 31 of the
TRIPS Agreement.
4. Does your legislation provide for the principle of the reversal of the burden of proof in a
process patent litigation?  Please name the relevant law and explain the relevant sections.
According to Article 240 of Decision 486, in cases where infringement of a process patent is
claimed, it shall be for the defendant to prove that the process used to obtain the product is different
from the process protected by the allegedly infringed patent.  Failing proof to the contrary, it shall be
presumed that any identical product produced wi thout the consent of the patent owner has been
obtained using the patented process, if:
(a) The product obtained by means of the patented process is new;  or(b) there is a strong likelihood that the identical product was manufactured through the
patented process and the patent owner is unable, despite reasonable efforts, to
determine the process actually used.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 38
In the presentation of evidence to the contrary, consideration shall be given to the legitimate
interests of the defendant in terms of protection of the defendant's business secrets.
B. PROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed and confidential test
data or other data submitted by an applicant to the responsible State agency in the procedure
for market authorization of a pharmaceutical or of an agricultural chemical product is
protected against disclosure and against unfair commercial use by a competitor, for example, by
prohibiting a second applicant from relying on or fr om referring to the original data of the first
applicant when applying subsequently for market authorization for his own product.  Does your
legislation provide for exceptions to this?  If  so, under what conditions would such exceptions
apply?
Article 266 of Decision 486 stipulates that when one of the conditions imposed by Member
countries for the approval of marketing of pharm aceutical or agro-chemical products that use new
chemical entities is the submission of undisclosed test or other data the origination of which requires aconsiderable effort, such data shall be protected against unfair commercial use.  In addition, Member
countries shall protect the data against disclosure, except where disclosure is necessary to protect the
public or steps are taken to ensure that the da ta is protected against unfair commercial use.
In addition, Article 35 of Legislative Decree No. 757 (Framework Law on the Promotion of
Private Investment) provides that documents and information supplied to public-sector entities may
not be disclosed where this might affect national security and foreign relations, and where such data is
simply for internal circulation among public admini stration services, contains restricted information
concerning private individuals, or refers to trade or technological secrets.
Regarding unfair commercial use, it is understood that the authorities empowered to grant
marketing approval for pharmaceutical and agro-chemical products are non-profit-making, public-
sector entities that perform a function expressly entrusted to them by law.  The use made by these
authorities within their institutions and in fulfilme nt of their statutory duty to authorize the marketing
of such products does not constitute commercial or unfair use.  The data is used for government, non-
commercial purposes, and the use is by definition lawf ul since it is required by the laws that govern
the terms of reference and operation of these authorities.  Regarding disclosure, it is likewiseunderstood that use of the data, whatever its origin, by the authorities within their institutions and in
fulfilment of their statutory duty does not involve any disclosure to third parties, since the latter may
not access the information, except in the special cases specified in Article 266 of Decision 486, which
correspond to those set forth in Article 39.3 of the TRIPS Agreement.
Follow-up question:
Referring to the issue of unfair commercial use of data submitted by an applicant to the
responsible authorities in the procedure for market authorization of a pharmaceutical or of an
agricultural chemical product, please explain whether and how your legislation prevents theresponsible authorities or a second applicant from relying on or referring to the original data of
the first applicant for the market authorization procedure of a second product equivalent to the
product of the first party.  Does your legislation provide for time-limits before the expiration of
which such data cannot be relied upon or referred  to by the authorities or a second applicant?
In reply to the first part of the question, the Peruvian authority responsible for issuing sanitary
registration certificates is the Health Ministry's Directorate-General of Drugs and Medicinal Products
(Dirección General de Medicament os, Insumos y Drogas – DIGEMID ).IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 39
Article 39.3 of the TRIPS Agreement deals with the instance where, as a condition of sanitary
approval for marketing a pharmaceutical or agro-chemical product, it is required to submit
undisclosed test or other data the origination of which involves a considerable effort.  In such cases,
WTO Members are under the twofold obligation to protect such data (a) against unfair commercial
use and (b) against disclosure.
In that regard, Article 266 of Decision 486 is en tirely consistent with the TRIPS requirements.
It should be noted that the obligation to protect such data applies solely where its use is at
once commercial and unfair.  There is no obligation to protect the data against use which is not
commercial or not unfair.
In reply to the second part of the question, under Peruvian legislation governing industrial
property and the repression of unfair competition the section dealing with the protection of
undisclosed information sets no time-limit in respect of such protection, as long as the relevant
conditions are fulfilled (i.e. that the information is secret, has commercial value because it is secret,
and reasonable steps have been taken by the person lawfully in control of the information to keep itsecret).
IV. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
A. 
GENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which Peru provides national
treatment and most-favoured-nation treatment to nationals of other WTO Members.
Decision 486 (Common Industrial Property Regime) covers the following forms of
intellectual property:
- Patents;
- utility models;
- layout-designs (topographies) of integrated circuits;
- industrial designs;
- trademarks;
- advertising slogans;- collective trademarks;
- certification marks;
- trade names;
- labels or emblems;
- geographical indications.
With respect to the protection of intellectual property, Articles 1 and 2 of the aforementioned
Decision establish the principles of national treatment and most-favoured-nation treatment
respectively.
Concerning national treatment, Article 1 stipulates that each Member country shall accord to
the nationals of other Members of the Andean Community, the World Trade Organization and the
Paris Convention for the Protection of Industrial Property treatment no less favourable than it affords
to its own nationals.
As regards the principle of most-favoured-nation treatment, Article 2 of Decision 486
specifies that any advantage, favour, privilege or immunity granted by a Member country to theIP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 40
nationals of any other Andean Community Member country shall be accorded to the nationals of any
Member of the World Trade Organization or of the Paris Convention for the Protection of Industrial
Property.
Besides, Article 2 of Decision 351 (Common Provisions on Copyright and Related Rights)
provides that each Member country shall grant the nationals of other countries protection no less
favourable than it accords to its own nationals in matters of copyright and related rights.
The WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) was
incorporated into Peruvian legislation in 1995 as part of Peru's ratification of the Uruguay Round
Agreements, which means that the principles of national treatment and most-favoured-nationtreatment enshrined in those Agreements now form part of domestic legislation and are therefore
applicable to Decision 345 (Common Provisions on the Protection of the Rights of Breeders of New
Plant Varieties).
Without prejudice to the foregoing, it should be noted that the national treatment and most-
favoured-nation treatment accorded by Peru to nationals of other WTO Members stems in any case
from the absence of discrimination between nationals and foreigners (national treatment) and between
foreigners from different Members (most-favoured-n ation treatment) in the laws in force in the
country, apart from the exceptions expressly allowed under the TRIPS Agreement.  The absence of
discrimination in intellectual property legislation means that nationals and foreigners may availthemselves of the same principles, procedures and authorities in all matters pertaining to the
recognition of their rights.
B. 
COPYRIGHT AND RELATED RIGHTS
2. Please explain how Peru's copyright law protects computer programs as literary works
and compilations of data, as required by Article 10 of the TRIPS Agreement, and cite the
relevant provisions.
Article 23 of Decision 351 (Common Provisions on Copyright and Related Rights) stipulates
that computer programs shall be protected on the same terms as literary works.  Such protection
extends not only to operating programs but also to application programs in the form of either source
codes or object codes.
Legislative Decree No. 822 (Copyright Law) likewise protects computer programs as literary
works, as required by the TRIPS Agreement.
Indeed, Article 69 of Legislative Decree No. 822 specifies that computer programs shall be
protected on the same terms as literary works and that such protection shall extend to every form of
expression thereof, including both operating and application programs, in the form of either source
codes or object codes.  Statutory protection shall extend to any of the successive versions of the
program, and also to derived programs.
As regards compilations of data, Article 28 of Decision 351 states that databases shall be
protected insofar as the selection or arrangement of  the contents constitutes an intellectual creation.
Likewise, Article 78 of Legislative Decree No. 822 stipulates that databases or compilations of data or
other material that are machine-readable or accessible in another form shall be protected provided that
they constitute intellectual creations in terms of the selection or arrangement of their subject-matter.Such protection does not extend to the actual data, information or material compiled, but it does not
affect any rights that may subsist in the works or constituent subject-matter.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 41
3. Article 11 of the TRIPS Agreement requires th at rental rights be provided for computer
programs and cinematographic works in most in stances, and Article 14 requires that rental
rights be provided to the producers of phonograms.  Please describe the manner in which rental
rights are provided to right holders in th ese works and phonograms and cite the relevant
provisions of Peru's copyright law.
Article 13(c) of Decision 351 states that the author, or his successors in title where applicable,
shall have the exclusive right to carry out, authorize or prohibit:
"The distribution of copies of the work to the public by means of sale, lending or hiring".
With specific reference to producers of phonograms, Article 37(c) of Decision 351 stipulates
that the producers of phonograms shall have the right to authorize or prohibit the distribution of the
original and every copy thereof to the public by sale, rental or any other means.
Article 136(b) of Legislative Decree No. 822 likewise provides that producers of phonograms
shall have the exclusive right to carry out, authorize or prohibit distribution, rental or lending ofcopies of their phonograms to the public or any other transfer of possession thereof, for consideration.
With specific reference to computer programs, Article 72 of Legislative Decree No. 822
provides that the right of rental or lending shall not apply to computer programs when the program
concerned is incorporated in a machine or product and cannot be reproduced or copied in the courseof normal use of the said machine or product, or alternatively where the rental or lending does not
relate essentially to the computer program itself.
C. 
TRADEMARKS
4. Please explain how Peru's trademark law provides for a presumption of the likelihood of
confusion, as required by Article 16.1 of the TRIPS Agreement, where an identical mark for
identical goods and services is used without au thorization on identical goods or services, and
cite the relevant provisions.
Article 155(d) of Decision 486 stipulates that the owner of a registered trademark shall have
the right to prevent any third party from using, in the course of trade, a sign identical or similar to a
trademark for goods or services, where such use wo uld result in a likelihood of confusion or mistaken
association with the registration owner, and that in the case of use of an identical sign for identical
goods or services, a likelihood of confusion shall be presumed.
5. Please explain whether and how Peru's tr ademark and other laws ensure protection of
well-known trademarks and service marks, citing the relevant provisions of law.
Decision 486 contains an entire title (Title XIII, Articles 224-236) on the protection of well-
known distinctive signs.  The protection of well-known trademarks (for products or services) is
covered under this Title.  Specifically, Article 226 of Decision 486 stipulates that the use of all or an
essential part of a well-known distinctive sign, or the reproduction, imitation, translation ortransliteration thereof, that may create confusion in respect of identical or similar businesses,
activities, products or services to those to which it is applied, shall constitute unauthorized use of that
distinctive sign.
Also constituting unauthorized use of a well-known distinctive sign is the use of all or an
essential part of that sign, or the reproduction, imitation, translation or transliteration thereof, even in
respect of businesses, activities, goods or services other than those to which that well-knownIP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 42
distinctive sign is applied, or its use for non-commercial purposes, where such use could be liable to
produce any of the following effects:
(a) The risk of confusion or of association with the owner of the sign, or with the
businesses, activities, goods or services belonging to that owner;
(b) unjust economic or commercial injury to the owner of the sign by reason of the
weakening of the distinctive force or commercial or advertising value of that sign; or
(c) unfair exploitation of the sign's prestige or fame.
Use of a distinctive sign may be verified by any means of communication, including
electronic media.
Similarly, under Article 233, the competent national authority shall, at the request of the
owner or lawful right holder in respect of a well-known distinctive sign, where the sign in questionhas been unlawfully registered by an unauthorize d third party in a Member country as part of a
dominion name or electronic mailing address, order the cancellation or amendment of that registration
of dominion or electronic mailing address.
The owner of a well-known distinctive sign may prohibit its use by third parties and may
bring such action before the competent national authority and take such measures as may be
appropriate.
Right of action against unauthorized use of a well-known distinctive sign shall lapse after five
years, counted from the date on which the owner became aware of such use, except whereunauthorized use was started in bad faith, in which case the right of action shall not lapse.  Such
action shall not affect any claim for damages that may be lodged pursuant to the provisions of
ordinary law.
It should be added that Article 136(h) of Decision 486 concerning the requirements for the
registration of trademarks provides that signs, the use of which in commerce may constitute an
impediment to the rights of third parties, may not be registered as trademarks, in particular where theyconsist of a total or partial reproduction, imitation, translation, transliteration or transcription of a
well-known sign belonging to a third party, regardless of the type of product or service to which it
applies, the use of which would lead to a likelihood of confusion or mistaken association with that
party or with that party's products or services, to unfair advantage being taken of the prestige of the
sign, or to a weakening of the sign's distinctive force or use for commercial or advertising purposes.
Finally, the second paragraph of Article 172 of  Decision 486 stipulates that the competent
national authority shall, either ex officio or at the request of a party, declare the relative invalidation
of a trademark registration where registration was granted in contravention of Article 136(h).  This
action shall lapse after five years, counted from the date of granting of the challenged registration.
D. 
GEOGRAPHICAL INDICATIONS
6. Please describe in detail how and under what laws geographical indications are
protected in Peru and cite the relevant provisions of law.
Title XII of Decision 486 deals with geographical indications and recognizes two categories
of indication: appellations of origin and indications of origin.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 43
Under Article 201 of the Decision, an appellation of origin shall be understood to be a
geographical indication consisting of the name of a particular country, region or locality, or of a name
which, without being that of a particular country, region or locality, refers to a specific geographical
area and is used to identify a product originating therein, the qualities, reputation or other
characteristics of which are exclusively or essentially attributable to the geographical environment inwhich it is produced, including both natural and human factors.  This definition is consistent with that
given in Article 22 of the TRIPS Agreement.
Pursuant to Article 206 of Decision 486, the declaration of protection of an appellation of
origin shall be made ex officio or at the request of parties who demonstrate a legitimate interest
therein, and the validity of the declaration of protection shall be subject to the continuing existence of
the conditions on which it was based.  Authorization to use a protected appellation of origin shall befor a term of 10 years and may be renewed for successive 10-year periods, in accordance with the
provisions of Article 210.
The competent national offices are empowered to recognize appellations of origin recognized
and protected in another Member country, where the application is made by producers, extractors,manufacturers or craftsmen with a legitimate interest in the matter or by the respective public
authorities.
In order to be eligible for such protection, appe llations of origin must have been declared as
such in their countries of origin.
It should be pointed out that under Article 214 of Decision 486 the use by unauthorized
parties of appellations of origin, including cases where such use is accompanied by indications such
as "kind", "type", "imitation" and other similar indications, in such a manner as is likely to cause
confusion among consumers, shall be deemed to be a punishable infringement of industrial propertylaw.  Article 215 of the Decision likewise establishes that Member countries shall prevent the use of
an appellation of origin identifying wines or spirits for goods of this kind not originating in the place
indicated by the appellation of origin in question, even where the true origin of the goods is indicated
or the geographical indication is used in translation or accompanied by expressions such as "kind",
"type", "style", "imitation" or the like.
Furthermore, Article 221 defines an indication of  origin as a name, expression, image or sign
that indicates or evokes a particular country, region, locality or place.  An indication of origin may not
be used in the course of trade for a good or service where the indication is false or deceptive or where
its use may mislead the public as to the origin, source, quality or any other characteristic of the good
or service in question.
An action for unfair competition may be brought in the case of use of a false or deceptive
indication of origin, on the basis of Articles 258 and 259(c) of Decision 486 and Articles 6, 7 and 10
of the Law on the Repression of Unfair Competition (Decree Law No. 26122).  Article 10 of the Law
classifies the use of expressions that could prove misleading as to the geographical origin of a product
as an act of unfair competition.  Among other things, it is considered unfair competition to use falseindications of origin and false appellations of origin in trade.
7. Does the law of Peru regarding geographical indications provide for any of the
exceptions to protection of geographical indica tions contained in Article 24 of the TRIPS
Agreement, and, if so, please describe the way in which the exception is applied and cite the
relevant provisions of law.
The second paragraph of Article 215 of Decision 486 takes up the exception provided for in
Article 24.4 of the TRIPS Agreement.  Article 202(b) of Decision 486 takes up the exceptionIP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 44
provided for in Article 24.6, first sentence, of the TRIPS Agreement.  Article 223 of Decision 486
takes up the exception provided for in Article 24.8 of the TRIPS Agreement.  Article 219 of Decision
486 takes up the exception provided for in Article 24.9 of the TRIPS Agreement.
E. INDUSTRIAL DESIGNS
8. Please describe in detail the way in which industrial designs, including textile designs,
are protected under Peru's laws and cite the relevant provisions of law.
Article 129 of Decision 486 states that registration of an industrial design, including textile
designs, shall confer on the owner thereof the right to prevent third parties from making use of the
design.  By virtue of this prohibition, the owner of the registration shall be entitled to proceed againstany third party who, without the consent of the right holder, manufactures, imports, offers for sale,
markets, or makes commercial use of products th at incorporate or reproduce the industrial design.
Registration shall likewise confer the right to proceed against any person who produces or
markets an article the design of which shows only minor differences with respect to the protecteddesign or the appearance of which is the same as that of the protected design.
Article 128 of Decision 486 stipulates that registration of an industrial design shall be for a
term of 10 years, counted from the filing of the application in the Member country.  That time frame
is also prescribed in Article 109 of Legislative Decree No. 823 (Industrial Property Law).
F. 
PATENTS
9. Please explain whether or not inventions within the categories specified below are
eligible to be patented under Peruvian law if they are otherwise novel, involve an inventive step
and are industrially applicable:
(a) Process inventions which, in whole or in part, consist of steps that are performed
by a computer and are directed by a computer program;
Yes, it is possible to patent a process which, in whole or in part, consists of steps that
are performed by a computer and are directed by  a computer program.  Such a process can be
considered as an invention and may be patented if it fulfils the requirements for patentability.
(b) product inventions consisting of elements of a computer-implemented invention
including:
(i) machine-readable computer program code stored on a tangible medium
such as a floppy disk, computer ha rd drive or computer memory;  or
Pursuant to Article 15(e) of Decision 486, computer programs and software, as such,
shall not be considered inventions and are therefore not patentable.  Computer programs as
such are protected by copyright, pursuant to Article 10 of the TRIPS Agreement, Article 23 ofDecision 351 and Article 69 of Legislative Decree No. 822.
(ii) a general purpose computer whose novelty over the prior art arises
primarily as a result of its combination with a specific computer
program;
It would be patentable if, as a result of the programming of the computer, it operated in
a different and non-obvious way, or its technical operation were changed.  Pursuant toIP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 45
Article 15(e) of Decision 486, computer programs, as such, shall not be considered inventions
and are therefore not patentable.  A computer program may not fall outside the ambit of this
provision merely because it is contained in a computer.
(c) process inventions that facilitate the conduct of business;
These are not patentable, since Article 15(d) of  Decision 486 stipulates that plans, rules,
and methods for the pursuit of economic and business activities shall not be considered
inventions.  They are not considered as such as they are not technical in nature.
(d) micro-organisms of all kinds.
Pursuant to the Second Transitional Provis ion of Decision 486, micro-organisms shall
be patentable until other measures are adopted as a result of the review provided for in
Article 27.3(b) of the TRIPS Agreement.
10. Animal species and varieties are expressly excluded under Article 7(c) of Decision 344.
Plant varieties are not excluded, nor are micro-organisms mentioned in Decision 344.  Please
indicate whether the inventor of a micro-organism that is new, involves an inventive step and is
industrially applicable may receive a patent for that micro-organism in Peru.
Article 20(c) of Decision 486 stipulates that  plants, animals and essentially biological
processes for the production of plants or animal s other than non-biological or microbiological
processes shall not be patentable.
Under the Second Transitional Provision of Decision 486, micro-organisms shall be
patentable until other measures are adopted as a result of the review provided for in Article 27.3(b) ofthe TRIPS Agreement.
11. Article 7(a) and (b) of Decision 344 exclude s from patentable subject-matter "inventions
that violate public policy, morals or proper customs" and "inventions that are obviously
contrary to the health or life of persons…".   Article 27.2 of the TRIPS Agreement authorizes
exclusion from patentability on the basis of ordre public  o nly i f i t is  nece ssa ry to  proh ibi t th e
commercialization of the invention, but not merely because exploitation is prohibited by law.Please describe in detail how Peru implements Articles 7(a) and (b) of Decision 344, including
what criteria are used to determine what is "necessary".
Article 20(a) and (b) of Decision 486 excludes from patentability inventions whose
commercial exploitation in the territory of the respective Member country must be prevented in orderto protect ordre public  or morality or human or animal life or health, or to avoid serious prejudice to
plant life or the environment.  However, those sa me provisions specify that commercial exploitation
of an invention shall not be deemed contrary to public order or morality, or harmful to human or
animal life or health or to the conservation of plant life or the environment, merely because such
exploitation is prohibited or regulated by a legal or administrative provision.
So far, INDECOPI's Office of Inventions and New Technologies has neither rejected nor
turned down an application for the reasons set forth in Decision 344 (which are reproduced in
Article 20 of Decision 486).IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 46
12. Article 7(e) of Decision 344 appears to exclude as patentable subject-matter "inventions
related to pharmaceutical products shown on th e list of essential drugs of the World Health
Organization".  Please explain how Peru has implemented this provision in a manner consistent
with the prohibition in Article 27 of the TRIPS Agreement against discrimination based uponthe area of technology.
Decision 486 does not contain the exclusion referred to in this question.
13. Article 16 of Decision 344 provides that prev iously patented products may not be the
subject of a new patent simply because of a use different from that described in the original
patent.  Please indicate whether a new use of an existing product may be patented in Peru if the
new use is novel, involves an inventive step and is industrially applicable.
Article 21 of Decision 486 (which corresponds to Article 16 of the earlier Decision 344)
stipulates that a product or process already patented and included in the state of the art may not be
re-patented on the sole ground of having been put to a use different from that contemplated by theoriginal patent.  This provision makes clear that an invention (product or process) may not be re-
patented unless it fulfils the requirement of novelty under patent law, and the principle may not be
circumvented on the ground that the product or process in question is being put to a new use.
Follow-up question:
Article 16 of Decision 344 appears not to have permitted the grant of patents for
inventions that claim a new use of a product patented previously for another use.  Article 21 of
Decision 486 appears to continue this prohibition.  Please explain if and how an invention
involving the innovative use of a product, previously patented for another use, may be patentedif the innovative use is new, involves an in ventive step, and has industrial applicability.
As interpreted by the competent Peruvian authorities, Article 21 of Decision 486 (which
corresponds to Article 16 of the earlier Decision 344) does not prohibit patenting of a use that meets
patentability requirements.  It merely prohibits the re-patenting of a product or process already
patented and included in the state of the art on the sole ground that the product or process has been put
to a use different from that contemplated by the original patent.  The product or process in questioncannot be re-patented because it does not fulfil the requirement of novelty under patent law.
It should be pointed out that the above provision has been interpreted in different ways by the
various Andean countries.  Proceedings are currently pending before the Andean Tribunal, which is to
deliver a pre-judicial interpretation of the scope of this provision.
14. The translation of Article 35 of Decision 344 states that patent owners have the right to
prevent others from "working" the patented inve ntion without authorization.  Please explain
what acts, enumerated in Article 28 of the TRIPS Agreement, can serve as the basis for an
action of infringement in Peru by the patent holders.
Article 52 of Decision 486 provides that a patent shall confer on its owner the right to prevent
third parties not having the owner's consent from carrying out any of the following acts:
(a) Where the subject-matter of a patent is a product:
(i) making the product;(ii) offering for sale, selling, or using the product, or importing it for these
purposes.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 47
(b) Where the subject-matter of a patent is a process:
(i) using the process, or
(ii) carrying out any of the acts specified under paragraph (a) above with respect
to a product obtained directly by that process.
The aforementioned acts correspond to those set forth in Article 28 of the TRIPS Agreement.
They may constitute grounds for the owner of a patent  to bring an action for infringement before the
competent national authority against any person infringing his right or against any person engaging in
acts that point to an imminent risk of infringement, within the meaning of Article 238 ofDecision 486.
15. Please describe in detail any limited exceptions to patent rights that exist under Peru's
laws and indicate what safeguards are used to ensure that such limited exceptions do not
unreasonably conflict with a normal exploitation of the patent and do not unreasonablyprejudice the legitimate interests of the pate nt owner, taking into account the legitimate
interests of third parties.
The limited exceptions to patent rights are set forth in Articles 53 to 55 of Decision 486.
Article 53 of Decision 486 provides that a patent owner may not prevent third parties not
having his consent from engaging in the following acts in relation to a patent:
(a) Acts carried out in a private circle and for non-commercial purposes;
(b) acts carried out exclusively to experiment with the subject-matter of the patented
invention;
(c) acts carried out exclusively for the purposes of teaching or scientific or academic
research;
(d) acts referred to in Article 5 ter of the Paris Convention for the Protection of Industrial
Property;
(e) where the patent protects biological material that is capable of being reproduced,
except for plants, using that material as a basis for obtaining a viable new material,
except where the patented material must be used repeatedly to obtain the newmaterial.
Article 54 of Decision 486 provides that a patent owner may not prevent a third party from
making commercial use of a product protected by the patent, once that product has been introduced
into trade in any country by the owner or another person authorized by or with economic ties to the
patent owner.
In keeping with Article 55 of Decision 486, the rights conferred by a patent may not be
asserted against a third party that, in good faith and before the priority date or the filing date of the
application on the basis of which the patent was granted, was already using or exploiting theinvention, or had already made effective and serious preparations for such use or exploitation.  In such
case, the said third party shall have the right to start or continue using or exploiting the invention, but
that right may only be assigned or transferred toge ther with the business or company in which the use
or exploitation is taking place.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 48
These limited exceptions to the exclusive rights conferred by a patent are consistent with
Article 30 of the TRIPS Agreement, as they do not unreasonably conflict with a normal exploitation
of the patent and do not unreasonably prejudice the legitimate interests of the patent owner.  They alsotake account of the legitimate interests of third parties.
16. Please describe how Peru has implemented Ar ticle 14 of Decision 344 (which states that,
if a right of priority is claimed, a patent application must be accompanied by a copy of the first
patent application filed) to ensure that the appl icant has up to three months to file the certified
copy, as provided for in Article 4(D)(3) of the Paris Convention incorporated by Article 2.1 of
the TRIPS Agreement.
Article 9 of Decision 486 stipulates that an application claiming a right of priority shall be
filed within 12 months of the date of filing of the in itial application to which the claim refers.  Article
10 of Decision 486 stipulates that a copy of that initial application, certified as correct by the issuing
authority, must be submitted within 16 months of the date of filing of the application claiming theright of priority.
This means that if the person claiming a right of priority over a patent files the claim on the
last day (i.e. at the end of the 12 months from the filing of the application to which the claim refers),
he will have four months in which to submit the certified copy.  The time frame is therefore longerthan that stipulated in Article 4(D)(3) of the Paris Convention.
17. Article 37 of Decision 344 appears to require that each patented invention must be
"worked" in a Member country of the Andean Community.  Please describe the manner in
which the Government of Peru implements this provision to ensure that its obligations underArticle 4 and Article 27.1 of the TRIPS Agreement are fulfilled.
Article 59 of Decision 486 (which corresponds to Article 37 of Decision 344) stipulates that
the owner of a patent shall be under the obligation to exploit the patented invention in any Member
country, either directly or through a person authorized by him.  Article 60 specifies that exploitation
shall be understood to mean the industrial manufacture of the patented product or the full use of the
patented process, including the distribution and marketing of the results thereof on a scale sufficient tosatisfy the demands of the market.  Exploitation shall also be understood to mean the importation of
the patented product, including its distribution and marketing, where this is done on a scale sufficient
to satisfy the demands of the market.
The obligation to exploit a patent in any Andean Community Member country does not
contravene the principle of most-favoured-nation treatment laid down in Article 4 of the TRIPS
Agreement, as the provisions of Articles 59 and 60 of Decision 486 apply equally to any patent
owner, without discrimination based on origin in one or other WTO Member country.  Accordingly,
the person owning the patent in Peru may exploit the invention in another Andean Community
Member country, and not necessarily in Peru, regardless of his nationality, domicile or place ofestablishment.  Exploitation in any of the other Andean Community Member countries shall therefore
be considered as exploitation within Peru for the purposes of the law.  Since that advantage may be
exploited by any person owning a patent in Peru, regardless of nationality, domicile or place of
establishment, the most-favoured-nation rule is not being infringed.
Article 27.1 of the TRIPS is not being infringed, as there is no discrimination based on
whether the products are imported or produced in the country.  As indicated above, importation and
industrial production are deemed to be equivalent, and the requirement of exploitation may be
fulfilled by either of those means or by a combination of the two.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 49
18. Articles 42 through 46 of Decision 344 authorize compulsory licences to remedy
insufficient working, national emergency and nati onal security interests.  Article 47 authorizes
compulsory licences for anti-competitive behaviour and Article 48 provides for compulsory
licences to permit use of a dependent patent.  Please describe in detail the manner in which Peru
ensures that each of the conditions established for compulsory licensing is met in connection
with each form of compulsory licence.
In order to ensure that the conditions set for compulsory licensing are met in connection with
each form of compulsory licence, Article 68 of Decision 486 provides that, in addition to the
conditions stipulated for each form of compulsory licence, all compulsory licences shall be subject to
the following:
- In order to be legally binding, they shall be non-assignable, except with the part of the
business or goodwill that permits their industrial use.  This shall be evidenced in
writing and registered with the competent national office.
- They shall be liable, subject to adequate protection of the legitimate interests of the
persons authorized to work them, to be terminated if the circumstances that led to
their granting cease to exist and are unlikely to recur.
- Their scope and duration shall be limited to the purposes for which they were granted.
- They shall provide for payment of adequate remuneration according to the
circumstances of each case, taking into account the economic value of the licence.
- They shall be used predominantly for the supply of the domestic market.
19. Please indicate how many compulsory licences have been granted in each of the last five
years.
Peru has granted no compulsory licences in the last five years.
G. LAYOUT -DESIGNS OF INTEGRATED CIRCUITS
20. Please describe in detail how Peru implements the obligations of Part II, Section 6, of the
TRIPS Agreement and cite the relevant provisions of law.
Decision 486 incorporates the treatment of the layout-designs of integrated circuits in Andean
and Peruvian legislation.  Title IV (Articles 86- 112) of Decision 486 covers the following areas
regarding the layout-designs of integrated circuits: definitions of an integrated circuit and a layout-design, requirements for protection, holders of the right to register a layout-design of an integrated
circuit, the procedure for registration, the rights conferred by registration, the licensing system, and
the invalidation of the registration.
H. 
PROTECTION OF UNDISCLOSED INFORMATION
21. The last paragraph of Article 72 of Decision 344 defines "industrial secrets" as including
only the nature of products, methods of production, or means of distribution.  Please describe in
detail how this definition encompasses all of the undisclosed information as defined in
Article 39.2 of the TRIPS Agreement.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 50
Decision 486 does not contain the provision mentioned in the question.  Article 260 of
Decision 486, which covers business secrets, takes up the content of Article 39.2 of the TRIPS
Agreement, as follows.
A business secret shall be considered to be any undisclosed information within the lawful
control of an individual person or legal entity that may be used for any productive, industrial or
commercial activity and that is capable of being transmitted to a third party, so long as that
information:
(a) Is secret in the sense that it is not, as a body or in the precise configuration and
assembly of its components, generally known among or readily accessible to personswithin the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret;  and(c) has been the subject of reasonable steps by the person lawfully in control of the
information to keep it secret.
22. Please describe in detail the measures that can be taken by judicial authorities in Peru to
protect the confidentiality of undisclosed information furnished by a party to the court during
legal proceedings, as required by Article 42 of the TRIPS Agreement, when the information hasbeen provided either to enforce rights in  such information, or for other purposes.
By virtue of the constitutional principle of the right of defence, all evidence and information
in proceedings must be made available to the other party and may be challenged by any lawful means.
As proceedings are public, the information furnished is not confidential, except as regards matters ofindividual privacy and honour, where confidentiality applies in general both in and beyond the
courtroom.
Article 184.6 of the Single Harmonized Text of  the Organic Law on the Judiciary stipulates
that the judges shall observe absolute secrecy in cases heard by them.
Pursuant to Article 6 of Legislative Decree N o. 807 (Law on the Functions, Regulations and
Organization of INDECOPI), any information received  by INDECOPI that constitutes an industrial or
trade secret shall be declared confidential.  In such cases, all necessary measures shall be taken to
guarantee the secrecy and confidentiality of the information, on pain of liability.
In the case of administrative litigation in respect of a decision handed down by INDECOPI,
INDECOPI (as co-defendant) shall observe the principle of secrecy regarding confidential
information and shall not furnish it to the judges.  However, where the judges request INDECOPI to
supply such information, it shall be under the obligation to comply.  Thereafter, the judges shall
assume direct liability in respect of the secrecy and confidentiality of the information.
23. In light of the exception provided in the second paragraph of Article 79 of Decision 344,
please explain in detail how Peru protects against unfair commercial use test and other data
submitted to obtain marketing approval for pharmaceuticals and agricultural chemicals and
cite to the relevant provisions of law.
Article 266 of Decision 486, which corresponds to Article 39.3 of the TRIPS Agreement and
relates to business secrets, specifies that Member countries, when requiring, as a condition for
approving the marketing of pharmaceutical or agro-chemical products that use new chemical entities,
the submission of undisclosed test or other data the origination of which involves a considerable
effort, shall protect such data against unfair commercial use.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 51
It is understood that the authorities empower ed to grant approval for the marketing of
pharmaceutical and agro-chemical products are non-profit-making, public-sector entities that perform
a function expressly entrusted to them by law.  The use made by these authorities of the data within
their own institutions and in fulfilment of their statutory duty to authorize the marketing of such
products does not constitute commercial use or unfair use.  The data is used for government, non-
commercial purposes, and the use is by definition lawf ul since it is required by the laws that govern
the terms of reference and operation of these authorities.
24. Please explain in detail how Peru protects against disclosure test and other data
submitted to obtain marketing approval for ph armaceutical and agricultural chemical products
and cite to the relevant provisions of law.
Pursuant to Article 266 of Decision 486 (which corresponds to Article 39.3 of the TRIPS
Agreement), data submitted to the competent authorities shall be protected against disclosure.  It is
understood that the use made of the data, whatever its origin, by these authorities within their
institutions and in fulfilment of their statutory duty does not imply disclosure to third parties, since the
latter may not access the information, except in the special cases specified in Article 266.
The General Directorate of Environmental Health (DIGESA) is responsible for granting
sanitary approval for agro-chemical products for public health use.  To ensure transparency in
administrative procedures, the documents, background material, studies, orders, opinions, statisticaldata and any other information that public-sector entities have in their power must be made available
to private individuals who so request, except for do cuments and information that may affect national
security and foreign relations, and information concerning private individuals which is restricted in
accordance with the legal provisions in force or which refers to trade or technological secrets.  This is
regulated under the Framework Law on the Promotion of Private Investment, approved by LegislativeDecree No. 757.
Follow-up question:
Please explain if and how the law of Peru prevents relevant Ministries from relying on
earlier submitted undisclosed data of one party to approve another party's request for
marketing approval of its agricultural chemical or pharmaceutical product which isbioequivalent to the product of the first party.
Article 39.3 of the TRIPS Agreement deals with the instance where, as a condition of sanitary
approval for a pharmaceutical or agro-chemical product, it is necessary to present undisclosed test or
other data the origination of which involves a considerable effort.  In such cases, WTO Members areunder the twofold obligation to protect such data (a ) against unfair commercial use and (b) against
disclosure.
It should be noted that the obligation to protect such data applies solely where its use is at
once commercial and unfair.  There is no obligation to protect the data against use that is notcommercial or not unfair.
In a typical situation, the parties that might "use" the data provided to the health authority by
the first applicant are (i) the health authority itself and (ii) a subsequent applicant.
A party applying for sanitary approval of a second product equivalent to a previously
approved product does not "use" the data supplied by the first applicant for the simple reason that he
does not have access to it.  Indeed, as the information is confidential, the health authority may not
communicate it to a subsequent applicant or allow the latter to have access to it.  It is thereforeIP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 52
impossible for the subsequent applicant to use the data in any way, since it will not be available to
him.  The party that "uses" the data is the health  authority in the exercise of its mandatory legal
functions, but such use is not commercial or not unfair.
It should be emphasized that Article 39.3 of th e TRIPS Agreement does not specify that the
mere fact of applying to a health authority for approval of a pharmaceutical product identical to
another product previously approved by that same authority constitutes use of the data, even where
the health authority's decision to approve the subsequent product is based upon that data.  In any
event, under Peruvian legislation the principle of administrative economy prevails, and the health
authority is required to apply that principle in fu lfilling its mandate.  Hence, if the health authority
publicly awards marketing approval for a product and another party later applies for authorization tomarket an identical product that meets the technical requirements of efficacy and safety, the health
authority shall not be entitled to deny such author ization to the second applicant, as the latter will
have complied with health legislation requirements.  If the authority were to deny marketing approval
for a product that meets the prescribed sanitary requirements, it would be guilty of unjustified
discrimination, thereby incurring possible administrative and criminal liability.
I. 
ENFORCEMENT
25. Please describe in detail what civil actions and what civil remedies are available under
Peru's laws to right holders of each kind of intellectual property covered by Part II of the
TRIPS Agreement, including plant variety protectio n, that permit effective action against any
act of infringement, to prevent infringement and deter further infringement, and cite to the
provisions of law providing for those remedies.
Decision 486 establishes that the following actions may be brought to protect industrial
property rights.
Action for claims
Article 237 of Decision 486 provides that, where a patent for, or the registration of, an
industrial design has been requested or obtained  by a party with no right to such a patent or
registration or to the detriment of another party possessing that same right, the aggrieved party may
lodge a claim with the competent national authority, requesting the transfer of the pending applicationor right granted or requesting recognition as a co-applicant or co-owner of the right in question.
Likewise, where an application for a trademark registration has been filed or a trademark has
been obtained to the detriment of another party possessing the same right, the aggrieved party may
lodge a claim with the competent national authority, requesting recognition as a co-applicant or co-owner of that right.
Action for infringement of rights
Article 238 of Decision 486 provides that the owner of a right protected under the Decision
may bring an action before the competent national authority against any party infringing upon that
right or performing acts which point to an imminent risk of infringement.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 53
Action for damages
Article 239 of Decision 486 provides that the owner of a patent may bring an action for
damages in the event of injury resulting from unauthorized use of the invention or utility model
between the time when the invention or utility model became public knowledge and thecorresponding application was opened for consultation and the date on which the patent was granted.
Similarly, in line with Peru's reply to Question 5 of the Checklist of Issues on Enforcement,
once the administrative channels have been exhauste d, the owner of an intellectual property right may
bring an action for claims or damages before the civil courts.
Civil proceedings may be used to seek indemnification for damages caused by the
infringement of intellectual property rights, duly established at the administrative level.  Such
indemnification shall compensate for losses sustained and loss of profits resulting from the violation.
The payment of court costs and litigation expenses may also be ordered.  Pursuant to Article 246 of
Legislative Decree No. 823 (Industrial Property Law), the amount of lost profits shall be determined
on the basis of criteria such as:
(1) The profits that the owner would have realized through use or exploitation of the right
had the infringement not occurred;
(2) the profits actually realized by the infringer as a result of the infringement;(3) the price that the infringer would have had to pay the holder for the grant of the
licence that would have enabled him to engage in rightful use.
In cases of administrative litigation (Article 540 of the Code of Civil Procedure), the civil
courts may overturn decisions taken at the administrative level.
26. Please state whether decisions on the merit in court proceedings are provided in writing
and if those written opinions are available to the public so that people can become familiar with
the law .
Only the parties involved and interested third parties are allowed access to intellectual
property judgments handed down by the civil courts.  The records of administrative proceedings are
public, and any interested person may have access to them at any stage of the proceedings, unless the
material under discussion has been declared to be restricted.
Administrative decisions are issued in writing and are available to any interested person,
whether or not a party to the proceedings.  Anyone who so wishes may also request copies. Decisions
that establish a precedent of mandatory enforcement are published in the Official Journal El Peruano .
27. Please describe what civil provisional measures are available to right holders under
Peru's laws, describe the procedures that must be followed and cite the relevant provisions oflaw.
As indicated in Peru's reply to Question 10 of the Checklist of Issues on Enforcement,
Article 608 of the Code of Civil Procedure provides that any judge may, at the request of a party,
order precautionary measures (provisional measures) such as sequestration, seizure, temporarymeasures on the merits, injunctions to proceed or to refrain from proceeding, before or during an
action for infringement, in order to ensure enforcement of the final ruling.  The measures requested
may include immediate cessation of the acts constituting the alleged infringement; withdrawal from
commercial channels of the products resulting fr om the alleged infringement, including packaging,IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 54
wrappings, labels, and printed or advertising materials; suspension of the importation or exportation
of the allegedly infringing goods or materials; provision by the alleged infringer of an adequate
guarantee; and temporary closure of the business belonging to the defendant.
Decision 486 (Articles 245 to 249) also provides that any party bringing or intending to bring
an action for infringement may request the competent national authority to order precautionary
measures.
Likewise, Article 198 of Legislative Decree N o. 822 (Copyright Law) specifies that, at the
request of the right holder, his representatives or the relevant management society, a judge shall order
the immediate execution of such precautionary measures as may be necessary to avoid perpetration ofan infringement or the continuation or repetition of an infringement that has already been committed,
in particular seizure of the income realized through the unlawful activity, or, where appropriate, of the
amounts owed by way of remuneration; immedi ate suspension of the unlawful manufacture,
reproduction, distribution, communication or importation, as the case may be; and sequestration of the
copies produced or used and of the material or equipment employed for the infringing activity.
It is also possible to request and obtain the application of a precautionary measure that has not
been provided for but is deemed most appropriate for ensuring the enforcement of the final ruling.
In accordance with the provisions of Article 27 of Legislative Decree No. 807 and Article 240
of Legislative Decree No. 823 (Industrial Propert y Law), precautionary measures may also be
requested in administrative proceedings for infringement of industrial property rights, at any stage in
the procedure, up to the time when the corresponding ruling is to be delivered.  Article 27 of
Legislative Decree No. 807 provides for the following precautionary measures:
(a) The cessation of the acts that are the subject of the complaint;
(b) the seizure, deposit or arrestment of the products, labels, packaging and advertising
material that are the subject of the complaint;
(c) the preventive cessation of advertising that is the subject of the complaint;
(d) the adoption of such measures as may be necessary for the customs authorities to
prevent the entry into Peru of the product s that are the subject of the complaint;
(e) the temporary closure of the establishment of the defendant;
(f) any other measure required to prevent any prejudice from arising as a result of the
alleged infringement or to ensure cessation of the infringing act.
28. Please state whether judicial authorities have authority to adopt provisional measures
inaudita altera parte , as required under Article 50.2 of the TRIPS Agreement and under what
circumstances that authority will be invoked.
Precautionary measures (provisional measures) may be taken inaudita altera parte  for the
purpose of ensuring enforcement of the final ruling.  Under Article 611 of the Code of Civil
Procedure, if a judge considers, in the light of the explanations and the evidence furnished, that theright claimed is justified and that a preventive decision is necessary because any delay in the
proceedings would be dangerous or for any other justifiable reason, he shall order a precautionary
measure in the form requested or as he deems appropriate in view of the nature of the principal claim.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 55
Articles 245 and 248 of Decision 486 also allow for the adoption of precautionary measures
inaudita altera parte .  They provide that precautionary measures may be requested before or during
an action on the merits of an infringement case, in order to prevent an infringement from being
committed, to avoid the consequences of infringement, to obtain or preserve evidence, or to ensure the
effectiveness of the action or compensation for damages.
Where a provisional measure has been applied inaudita altera parte , the party concerned shall
be notified thereof without delay once the measure has been executed.  The defendant may request the
competent national authority to conduct a review of the measure.
29. Please describe in detail the procedures under Peru's laws, at least with respect to
counterfeit trademarked goods and pirated copyrighted goods, that allow right holders torequest customs authorities not to release goods into free circulation and cite to the relevant
provisions of law.  Please indicate if the cust oms authorities have ex officio authority to take
such action.
Pursuant to Article 240 of Legislative Decree No. 823, without prejudice to any civil and
criminal actions that may be available, an ow ner of industrial property rights may institute
infringement proceedings before INDECOPI against any person who infringes those rights.
Infringement proceedings may also be instituted where there is an immediate risk of the rights of that
owner being violated.  Likewise, in accordance with Article 27 of Legislative Decree No. 807, the
suspension of customs clearance of goods infringing an intellectual property right may be requested asa precautionary measure.  Once the measure has been applied for, INDECOPI sends an official
communication to the customs authorities asking for customs clearance of the infringing products to
be suspended.
Articles 250 to 256 of Decision 486 regulate the border measures that may be taken to
suspend the import of counterfeit trademark goods.
The Customs Taxation Department halts containers with allegedly infringing products at
customs posts before clearance.  INDECOPI is info rmed accordingly and its participation is sought in
order to determine whether they are in fact infringing products.
INDECOPI has signed an agreement for the exchange of information with the customs
authorities.  This is used to obtain information on goods which arrive in ports and which might breach
copyright legislation.
INDECOPI's Copyright Office has often taken action,  either ex officio or at the request of a
party, inside customs terminals and has confiscated illegal copies.
The customs authorities, pursuant to the procedures and manuals governing their operations,
may halt only those containers on which they have information that they might contain infringing
goods.  This being the case, INDECOPI is duly informed so that it can take action pursuant to its
mandate.
30. Please indicate whether border enforcemen t is available with regard to other forms of
intellectual property rights and cite to the relevant provisions of law.
Chapter III of Title XV "On actions for infringement of rights" of Decision 486 (Articles 250-
256) deals with border measures and expressly provides that the owner of a registered trademark who
has valid grounds for suspecting that counterfeit trademark goods are about to be imported or
exported may request that the customs operation be suspended.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 56
As regards the other objects of industrial property, Legislative Decree No. 823 refers to
Article 27 of Legislative Decree No. 807, which provides that at any stage of the proceedings, either
ex officio or at the request of a party, INDECOPI may order one or more of the precautionary
measures described as follows:
"The adoption of such measures as may be necessary for the customs authorities to prevent
the entry into Peru of the products th at are the subject of the complaint."
With regard to copyright, Article 40 of Legislative Decree No. 822 provides that the
Copyright Office may apply to the customs authorities for confiscation at the border of pirated
merchandise that violates copyright, with a view to suspending the free circulation of the saidmerchandise where attempts are made to import it into Peruvian territory.
31. Please describe in detail how Peru implements the remaining provisions of Section 4 of
Part III of the TRIPS Agreement, citing to the relevant provisions of law.
See the replies to Questions 29 and 30.
32. Please describe in detail the criminal actions and remedies that are available with
respect to counterfeit trademarked goods and pi rated copyright goods and cite to the relevant
provisions of law.
The public authority responsible for instituting criminal proceedings is the Public Prosecutor's
Office, which is an autonomous State body whose principal functions are to uphold the law and
citizen's rights and to defend the public interest.   In the case of intellectual property rights, the
Nineteenth Criminal Provincial Prosecutor's Office in Lima and Ad Hoc Office for IntellectualOffences is the competent authority.  INDECOPI, acting through the Public Prosecutor's Office, is
also empowered to initiate criminal proceedings.
The Public Prosecutor's Office may institute proceedings ex officio (on its own initiative)
when there are reasonable grounds to believe that an offence has been committed, or at the request of
the aggrieved party (on the basis of a complaint).
Private individuals are not authorized to bring criminal action directly for offences against
intellectual property rights and must do so through the competent Public Prosecutor's Office.
33. Please indicate the authorities responsible for criminal actions involving intellectual
property rights and indicate whether their authority extends to other forms of intellectualproperty rights.
The Judge of the First Instance in the criminal courts is empowered to hear cases concerning
intellectual property rights.  At second instance, the Criminal Chamber of the High Court has
jurisdiction.
In respect of offences against copyright and related rights and industrial property rights,
Articles 216 to 221 of the Criminal Code state with regard to copyright that penalties may be applied
for unlawful use of intellectual property, plagiarism, exceeding the authorized number of copies or
circulation, and for the sale or distribution of illegally produced copies.
Articles 222 to 225 of the Criminal Code deal with industrial property rights and lay down
penalties for unauthorized use of a patent, unauthorized use or sale of an industrial design, improper
use of an expression accrediting a person as the owne r of an industrial design, and unlawful use of a
trademark.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 57
34. Please explain whether and under what circumstances seizure, forfeiture and
destruction of infringing goods and any materials and implements are available as remedies in
wilful trademark counterfeiting or copyright piracy cases and describe the conditions under
which such penalties would be imposed.
In accordance with Article 241(c) and (f) of Decision 486, the plaintiff or complainant may
request an order to withdraw from commercial chan nels the products resulting from an infringement,
including packaging, wrappings, labels, and printe d, advertising or other materials, along with the
materials and implements predominantly used to commit the infringement, and the adoption of such
measures as may be necessary to avoid continuation or repetition of the infringement, including the
destruction of the products, materials or implements concerned.
Article 27 of Legislative Decree No. 807 provides that, at any stage of the proceedings, either
ex officio or at the request of a party, INDECOPI may order one or more of the following
precautionary measures:
(a) The cessation of the acts that are the subject of the complaint;
(b) the seizure, deposit or arrestment of the products, labels, packaging and advertising
material that are the subject of the complaint;
(c) the preventive cessation of advertising that is the subject of the complaint;
(d) the adoption of such measures as may be necessary for the customs authorities to
prevent the entry into Peru of the product s that are the subject of the complaint;
(e) the temporary closure of the establishment of the defendant;
(f) any other measure required to prevent any prejudice from occurring.
Article 177 of the Copyright Law likewise indicates some of the provisional measures that
may be requested by copyright holders, namely:
(a) Suspension or immediate cessation of the unlawful activity;
(b) attachment or seizure and withdrawal from commercial channels of any copies
produced or used and of the material or equipment employed for the infringing
activity;
(c) inspection, attachment or seizure without prior notice.
The Copyright Office, the Inventions and New Technologies Office and the Distinctive Signs
Office may apply administrative penalties, jointly or separately, such as a warning or a fine of up to
approximately US$152,250.00.
As regards seized goods, the Copyright Office may, where appropriate, order the delivery to
the injured party or a suitable institution of the infringing merchandise and any of the materials and
equipment used for the perpetration of the infringement, or it may order the destruction thereof,
pursuant to Article 178 of Legislative Decree No. 822.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 58
35. Please provide statistical information relating to civil copyright, trademark,
geographical indication, industrial design, patent s, integrated circuit layout-design, and trade
secret enforcement for each of the years 1998 and 1999, including the number of cases filed;
injunctions issued; infringing products seized; infringing equipment seized; cases resolved(including settlement); and the amount of damages awarded.
In Peru, intellectual property rights are protected at the administrative, civil and criminal
levels.  Most cases are settled through administrative channels.  The statistics included in the Annex
hence refer to administrative proceedings.
36. Please provide statistical information relat ing to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1998 and 1999, including the
number of raids, prosecutions, convictions, and th e amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)
and any other information establishing that the criminal system operates effectively to deter
copyright piracy and trademark counterfeiting.
The table below provides statistics for the technical reports issued by the Copyright Office for
the Judicial Authorities and the Public Prosecutor's Office during 1998 and 1999.  It should be noted
that before the Public Prosecutor's Office brings charges or makes a report, depending on
circumstances, it must request a technical report from INDECOPI.
Reports Issued in Judicial Proceedings in 1998
Technical Reports 328
To the Judicial Authorities 62
To the Public Prosecutor'sOffice 266
Reports Issued in Judicial Proceedings in 1999
Technical Reports 377
To the Judicial Authorities 42
To the Public Prosecutor'sOffice 335
37. Please describe any new initiatives that are planned to improve enforcement ofintellectual property rights in Peru, particularly initiatives related to criminal enforcement.
The Multisectoral Commission on Piracy, Counterfeiting and Forgery has been established to
coordinate activities and strategies aimed at furthering the progress already achieved in upholding
intellectual property rights in Peru and at strengthening the defence of those rights.  It is made up of
INDECOPI and business associations linked to right holders (Business Software Alliance – BSA,
Motion Picture Association – MPA, National Associat ion of Manufacturers – SNI, etc.) and relevant
public organizations (INDECOPI, National Police, etc.).
In the criminal field, although the existing Copyright Law of 1996 provides for custodial
sentences of up to eight years and includes new categories of offences, there is now a draft law before
the Congress of the Republic, which, if passed, would introduce more severe penalties for infringers.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 59
In addition, the processes and procedures for obtaining the registration of trademarks have
been automated so that the state of progress of files can be monitored through the Internet.
Automation will shortly be extended to co ver the procedures for obtaining patents.IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 60
ANNEX
Inventions and New Technologies Office
INFRINGEMENTS 1998 1999
ADMITTED 3 14
Actions for infringement of
patents 0 5
Actions for infringement ofindustrial designs 3 7
Actions for infringement ofutility models 0 2
INSPECTIONS CARRIEDOUT 4 34
Patents 0 10
Industrial designs 4 22
Utility models 0 2
PRECAUTIONARY
MEASURES EXECUTED
(Seizures, arrestments,
cessations, etc.) 0 36
Patents 0 22
Industrial designs 0 8
Utility models 0 6
RESOLVED IN 1999 66
Patents 1 Withdrawn
Industrial designs 4 Unfounded
1 Inadmissible3 Unfounded
1 Withdrawn
Utility models 1 Inadmissible Founded, punished with a fine
equivalent to 0.14 UIT (tax
units)
Infringements:  Distinctive Signs Office
1998 1999
Cases brought 304 295
Inspections carried out 312 283
Precautionary measuresexecuted 123 113
Cases settled by conciliation 61 58
Cases resolved 206 143IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 61
Copyright Office
APPLICATIONS 1998 1999
Registrations in dispute 8 5
Objections 0 0
Ex officio proceedings 0 0
Proceedings by a party 0 0
Cancellations 8 5
Ex officio proceedings 2 0
Proceedings by a party 6 5
Services for the settlement of
disputes (complaints)106 132
Ex officio proceedings 13 9
Proceedings by a party 93 123
Peruvian applicants 51 74
Foreign applicants 40 47
Peruvian and foreign (joint)
applicants22
Visits of inspection 88 123
Ex officio proceedings 15 4
Proceedings by a party 73 119
Peruvian applicants 14 67
Foreign applicants 58 44
Peruvian and foreign (joint)
applicants18
Preventive (precautionary)
measures56 30
Ex officio proceedings 0 0
Seizures 0 0
Arrestments 0 0
Cessations 0 0
Other 0 0
Proceedings by a party 56 30
Seizures 0 0
Arrestments 0 0
Cessations 54 30
Other 2 0
Precautionary measures within
proceedings25 80
Ex officio proceedings 3 11
Seizures 1 6
Arrestments 1 0
Cessations 0 0
Inspections 1 5
Other 0 0
Proceedings by a party 22 69
Seizures 7 29
Arrestments 3 8
Cessations 0 0
Inspections 12 32
Other 0 0IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 62
COMPLETED 1998 1999
REGISTRATIONS IN DISPUTE 5 7
Objections 0 0
Founded 0 0
Unfounded 0 0
Inadmissible 0 0
Withdrawn 0 0
Settled by conciliation 0 0
Abandoned 0 0
Expired 0 0
Definitively dismissed 0 0
Cancellations 5 7
Founded 4 2
Unfounded 1 4
Inadmissible 0 1
Withdrawn 0 0
Settled by conciliation 0 0
Abandoned 0 0
Expired 0 0
Definitively dismissed 0 0
REGISTRATIONS IN DISPUTE
(INFRINGEMENTS )78 130
Ex officio proceedings 3 12
Founded 3 9
Unfounded 0 2
Inadmissible 0 0
Withdrawn 0 0
Settled by conciliation 0 1
Abandoned 0 0
Expired 0 0
Definitely dismissed 0 0
Proceedings by a party 75 118
Founded 26 33
Unfounded 4 12
Inadmissible 4 0
Withdrawn 11 27
Settled by conciliation 22 42
Abandoned 8 4
Expired 0 0
Definitely dismissed 0 0IP/Q/PER/1, IP/Q2/PER/1,
IP/Q3/PER/1, IP/Q4/PER/1
Page 63
PENALTIES 68 119
Fines imposed 20 40
Amount expressed in UITs (tax units) 85 200
Temporary closure 1 0
Definitive closure 0 0
Confiscation 5 13
Warning 10 6
Repair of omissions 1 1
Other 31 59
VISITS OF INSPECTION 98 125
Ex officio proceedings 15 4
Proceedings by a party 83 121
Peruvian applicants 13 68
Foreign applicants 69 45
Peruvian and foreign (joint) applicants 1 8
PRECAUTIONARY (PREVENTIVE ) MEASURES 56 30
Ex officio proceedings 0 0
Seizures 0 0
Arrestments 0 0
Cessations 0 0
Other 0 0
Proceedings by a party 56 30
Seizures 0 0
Arrestments 0 0
Cessations 54 30
Other 2 0
PRECAUTIONARY MEASURES IN
PROCEEDINGS 31 44
Ex officio proceedings 4 1
Seizures 1 0
Arrestments 1 0
Cessations 0 0
Inspections 2 1
Other 0 0
Proceedings by a party 27 43
Seizures 7 13
Arrestments 2 4
Cessations 0 0
Inspections 18 26
Other 0 0
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