ECUADOR Trends and Developments Contributed by: Byron Robayo, Mario Cedeño and Lorena Sandoval Campaña, Estudio Spingarn & Marks S.A.
What Ecuador needs to compete: the pending agenda An honest assessment of Ecuador’s IP system identi- fies gaps that cannot be closed with more rules, but with better implementation of those that already exist. The three most urgent fronts are: • judicial specialisation – without dedicated IP courts or chambers with expertise in valuing intangible assets, the judicial system will remain a forum of last resort, unable to grant timely or adequate relief; • administrative coherence – provisions such as Article 509 of the Ingenios Code require regulatory authorities to act in alignment with the country’s international obligations — not with interpretations that contradict them and distort competition; and • technology transfer infrastructure – universities with operational IP offices, companies with advis- ers who understand both technology and law, and a venture capital ecosystem whose IP due diligence standards demand and reward well-con- structed portfolios. Where IP strategy meets innovation intelligence While the public system continues to develop, spe- cialised private practice has a critical role to play by: • building the legal and strategic positions that pro- tect innovators; • designing the contractual architecture that makes confidentiality enforceable; • identifying patent opportunities that the market has not mapped; and • accompanying entrepreneurs, established compa- nies and investors in constructing IP assets that withstand the scrutiny of rigorous due diligence. The sophistication that Ecuador’s market is beginning to demand requires advisers who understand that IP does not end at the registration certificate – it begins there. The companies that build real IP positions today will not simply be better protected tomorrow: they will have built the assets that underpin enterprise value, attract capital and create durable competitive advan- tage in markets where imitation is becoming harder, and innovation is becoming unavoidable.
– on the basis of a concept of novelty that no other actor in the global IP system would consider plausi- ble. The Agreement on Trade-Related Aspects of Intel- lectual Property Rights (the “TRIPS Agreement”), the international foundation of test data protection rules, does not define novelty in territorial terms. The rel- evant novelty is that of the chemical entity itself – its non-disclosure in any market – not the novelty of its arrival in the Ecuadorian market. Correcting this inter- pretation does not require new legislation: it requires regulatory authorities and courts to apply the concept of novelty with the scope that international law and the Ingenios Code itself demand. Artificial intelligence (AI) and IP: the gap that is already here AI is generating legal questions that traditional IP frameworks do not answer well, and Ecuador’s sys- tem is no exception. The Ingenios Code was draft- ed before the era of generative AI; its provisions on authorship, inventive step and trade secrets require interpretations that Ecuadorian jurisprudence has not yet established. The questions are urgent and com- mercially significant: • for the creative industries – what protection authors have against AI models trained on their work with- out consent; • for technology companies – how proprietary algo- rithms can be protected as trade secrets when AI transparency obligations threaten to force their disclosure; and • for innovators – what level of human contribution is required for an AI-assisted creation to be protect- able under Ecuadorian law. Operators facing these situations need advisory sup- port that constructs defensible positions from exist- ing principles, before the legislature or courts define them. In IP, the first movers who build well-reasoned legal positions establish the precedent. Those who wait for certainty find that certainty has been defined by someone else’s argument.
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