Economy

Trade embargo hasn't stopped Cuba from getting U.S. patents

It was a brief item in a newsletter that tracks U.S. government activities: U.S. Patent No. 7,556,726 was awarded on July 7 to the National Center for Scientific Investigations in Havana.

Yes, Havana, Cuba.

Indeed, throughout 50 years of hostility across the Florida Straits, Havana has been obtaining U.S. patents — regularly, quietly and with little of the acrimony that has laced battles over trademarks such as Havana Club and Cohiba.

Records of the U.S. Patent and Trademark Office show that since 1975 when PTO records went digital and could be searched by country of origin, Cubans have been awarded 74 patents, covering everything from harvest combines to pharmaceuticals and medical procedures.

That number is low compared to other countries — "just short of North Korea,'' joked Werner Stemer, senior patent attorney with the Hollywood firm of Lerner Greenberg Stemer. But Cuba's filings have been on a "steep curve'' up since 2000 as its biotech industry blossomed.

Stemer said Cuba files for patents in Washington for a simple reason: Patents only protect inventors in the country where they are filed. So Cuba is wisely trying to protect its inventions — and its potential profits — in the world's single largest market.

There's no way to figure out whether any of the patents have, in fact, produced profits, several patent experts said.

Currently, however, clinical trials are underway for nimotuzumab, a Cuban-developed drug designed to target cancer cells. In the past other U.S. companies have received permission to test Cuban drugs, but this is the first time since the Cuban revolution that a trial has actually gone forward in the United States.

PATENT RIGHTS

While the Cuban patents credit the individual inventors who worked on the developments, the rights to the patents are virtually always assigned to government entities. Patent 7,556,726 was assigned to the National Center for Scientific Investigations, an agency of the Ministry of Higher Education.

Havana has retained the right to file for U.S. patents and trademarks because President John F. Kennedy exempted intellectual property when he tightened the trade embargo on Cuba in 1962.

That was likely because such property rights are protected by international treaties, said Marvin Feldman, a patent specialist and partner in the Lackenbach Siegel law firm in Scarsdale, N.Y. It has handled several Cuban cases.

The exemption also allows Cuba to pay the U.S. law firms that handle the often-complicated applications -- about $4,000 to $5,000 for simple products, $8,000 to $12,000 for more complex scientific products or procedures, according to four patent lawyers contacted by El Nuevo Herald.

PTO records show the firm of Hoffmann & Baron in Syosset, N.Y., handled a large number of the Cuban cases. A telephone call to the firm seeking comment was not returned.

Cuba's patents cover a broad range of products and procedures, from rotary engine improvements to a new process for the rotation of fetal heads during birth, a sugar cane harvester, surgical orthopedics and various vaccine and biotech developments.

Many of its patents from the '70s and '80s covered agricultural advancements, but the majority of the later patents are for pharmaceuticals, medical procedures and biotechnology advances. Patent 7,556,726 covered ``equipment used in electrophoresis'' -- defined as ``the motion of dispersed particles relative to a fluid under the influence of a spatially uniform electric field.''

PTO records from 1790 to 1975 are available online as digital images searchable only by issue date, patent number and classification -- not by country of origin.

TRADEMARK FIGHTS

U.S. and Cuban interests have clashed bitterly and often over some trademarks, especially for well-known products such as Havana Club rum and Cohiba cigars -- produced by both Cuba and rivals that sell in the U.S. market.

U.S. companies have registered some 7,000 brands with the Cuban Office of Industrial Property in Havana, said Washington lawyer Robert Muse, an expert on Cuba embargo laws. A list of the registries runs from Dockers to Aunt Jemima, Velveeta and Goya, the Hispanic food products firm, and dates as far back as 1918. Cuba is believed to have registered far fewer brands with the PTO in Washington.

But the issue of patents has been free of controversy with one glaring exception -- Fidel Castro's very public boast in 2001 that Cuba had joined Brazil in producing its own versions of HIV/AIDS drugs already patented in the United States.

DRUG COMPANIES

In reply, two patent attorneys consulted by El Nuevo said, some U.S. pharmaceutical companies have been trying to register some of their U.S.-patented drugs in Havana so that they can at least claim that they tried to protect their intellectual property. President Clinton amended the embargo in 1995 to permit U.S. companies for the first time since 1962 to pay the costs of registering patents and trademarks in Cuba.

A check of the Cuban Office for Industrial Property's website showed several mentions of ``applications for patent certificates'' by U.S. companies such as Pfizer and Wyeth. Several El Nuevo Herald telephone calls to COIP for details went unanswered.

In his 2001 statement, Castro accused U.S. manufacturers of trying to make too much profit from their drugs while thousands died from AIDS in poor countries such as South Africa, and added that Cuba's use of the U.S. drugs was a response to American companies' alleged violations of Cuban trademarks.

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