The republic of Kyrgyzstan was a Soviet republic until August, 1991, at which time it became independent. It is a country of 4.4 million people within 76,000 square miles. Kyrgyzstan has experienced some degree of economic stagnation since its break from the Soviet Union. A republic in its political infancy, such as Kyrgyzstan, may be thought to be drawing its intellectual property policy on a virtually blank slate. The timing of its independence may even appear fortunate, as the republic may tailor its policies with a more modern cyber-consciousness, thus avoiding the pitfalls encountered in first world countries which are forced to apply 18th century policies to 20th century problems. While Kyrgyzstan is eager to integrate its intellectual property policies with those of the United States and the world at large, thus furthering its economic development, it needs to do so in a way that adequately addresses its needs first, but without endangering new and fragile economic alliances. The following is a glimpse into how one emerging nation is attempting to reach that balance. . . . --Editor

The process of working to accomplish conformity between the young Kyrgyz intellectual property legislation and the long-established American system has been continuing for years. "We are glad to have something to learn from," remarks Dr. Roman Omorov, director of the Kyrgyz Agency of Intellectual Property. In general, American and Kyrgyz standards each comply with international agreements and treaties such as the Universal Copyright Convention, the Paris Convention on Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the Trade Related Intellectual Property Aspects (TRIPS). However, Kyrgyz standards differ from American standards in three general areas of intellectual property rights: the "national treatment" doctrine, personal non-property (moral) rights of authors, and temporary patents.

The Kyrgyz standard for "national treatment" is the same in principle as the American standard, which gives foreign patent holders the same protection as it gives American citizens. In other words, an American inventor will receive the same protection in Kyrgyzstan as a Kyrgyz inventor, and conversely, a Kyrgyz inventor would have the same rights in United States as an American inventor.

Despite this factual similarity, national treatment differs in practice in Kyrgyzstan. In the application for a Kyrgyz patent, Kyrgyz practice deprives the foreign patent seeker of some of the balance sought by the equal treatment theory. Under a Temporary Provision on Industrial Property (an administrative decree of the Kyrgyz Agency of Intellectual Property), patent application fees are differentiated based on nationality. In other words, to register an invention, a Kyrgyz applicant must pay a fee of about $20, whereas a foreign applicant must pay about $200.

Judy Goens, an American attorney, after completing an analysis of Kyrgyz statutes in intellectual property, recently presented her findings to Kyrgyz specialists from the Kyrgyz Agency of Intellectual Property. Ms. Goens' main argument was that the application of the national treatment doctrine under the Temporary Provision on Industrial Property contradicts the ideal of national treatment found in the Kyrgyz Patent Law as related to the disparate fees.

Kyrgyz Intellectual Property Agency specialists countered that the fee discrepancy is justified by the difference between the income of typical Kyrgyz applicants and the income of typical foreign applicants. The monthly average salary in Kyrgyzstan is about 175 som (the Kyrgyz currency), or roughly $10, whereas the American monthly average salary is about $2000. The second reason offered by the Agency is that Kyrgyzstan's difficult economic situation and budget deficit force the Intellectual Property Agency to seek independent ways to earn money in order to equip itself with modern technology and appropriate facilities.

Specialists in the Intellectual Property Agency nonetheless believe that the enforcement of the national treatment principle is compulsory. Thus, despite the present discriminatory fee scructure, Kyrgyz Intellectual Property Agency director Roman Omorov has agreed that the non-equal classification of fees rates will be a temporary measure. Omorov hopes that they will eliminate the disparity in fees as soon as possible in order to match the theory of national treatment with practice.

The second general area in which Kyrgyz intellectual property law differs from American intellectual property law is in the moral rights accorded to authors. American standards make no distinction between property rights of authors and non-property (moral) rights of authors, whereas Kyrgyz standards do. In general, "moral rights" refer to inherent rights including (1) the right to be identified as the author of the work, (2) the right to recapture or suppress publication or circulation of one's intellectual property, and (3) the right to name the work. Moreover, moral rights give authors the right to object to a use or distortion of their works which would harm their reputation and honor.

American intellectual property law does not recognize moral rights specifically or separately. Instead, American law regulates this area of the law in a variety of ways, including laws against unfair competition, fake trademarks, and defamation. In contrast to the United States, Kyrgyzstan does make a distinction between property rights and moral rights. Specifically, there are direct articles referring to moral rights in the Kyrgyzstan Civil Code (Part 3), in its intellectual property laws (Copyright Law, Patent Law, etc.) and in the Anti-Monopolistic Activities Law. The distinction between these two kinds of rights guarantees that authors will retain their inherent rights and decreases the risk of the infringement of those rights. The Berne Convention also makes such a distinction.

The final general area of difference between Kyrgyz intellectual property law and American intellectual property law is in the area of temporary patents. American law does not provide for temporary patents, whereas the Kyrgyz law does. A system of temporary patents exists only in the former Soviet-bloc countries of the Commonwealth of Independent States. There, such patents were created out of necessity. The centralized Soviet patent system, under which patent applications were processed only in Moscow, fell apart when the Soviet Union collapsed. Therefore, newly independent states like Kyrgyzstan suddenly had to create their own patent systems. However, these new facilities lacked the necessary resources for the thorough process of examining new inventions and industrial designs. As a consequence the Kyrgyz Intellectual Property Agency, in cooperation with other C.I.S. countries' intellectual property agencies, created a system for granting temporary patents lasting five years for inventions and industrial designs, in contrast with the generally accepted patent term of twenty years.

In order to get a temporary patent, an invention undergoes a "surface" examination by local specialists. However, if a temporary patent owner is willing to pay for a full examination in Moscow in order to get a bona fide patent, he must wait several months for the results. For a young and developing country like Kyrgyzstan, the system of temporary patents is a suitable interim measure as it slowly breaks its "patent" relations with Russia and becomes an independent state in all respects.

In short, in spite of the differences, the Kyrgyz patent system is striving to reach the American level of intellectual property protection. As Kyrgyz Intellectual Property Agency director Omorov has concluded, "We have to achieve the American standards of legal protection of intellectual property rights."

[ a ] Jasmine D. Cameron is a Kyrgyz native who worked in Kyrgyzstan as an attorney for Booze, Allen and Hamilton under the United States Agency on International Development's Trade and Investment Project, concerned with Kyrgyzstan's accession to the World Trade Organization.