The Ecuadorian legal system primarily provides for the following types of intellectual property rights for the protection of technical inventions:

• Patents of invention – These protect new products or processes that involve an inventive step and are industrially applicable.
• Utility model patents – These offer protection to new configurations, forms, or arrangements of elements of an apparatus, tool, instrument, mechanism, or other object, or parts thereof, that permit a better or different functioning, use, or manufacture, or that provide some new utility, advantage, or technical effect. They typically have lower inventive step requirements than patents of invention.

While industrial designs protect the particular aesthetic appearance (ornamental features) of a product, they are also considered industrial property rights and are processed similarly, though they protect aesthetics rather than technical function.

Legal Framework

These intellectual property rights are primarily based on statutory law. The main legal framework consists of:

• Andean Community Decision 486 (Common Regime on Industrial Property), which is supranational legislation directly applicable in Ecuador; and
• the Organic Code of the Social Economy of Knowledge, Creativity, and Innovation (Codigo Organico de la Economia Social de los Conocimientos, Creatividad e Innovacion or COESC/COESCCI), which is the national Ecuadorian IP law complementing Decision 486.

Prejudicial Interpretations

Although the matter primarily involves statutory law, the prejudicial interpretations issued by the Andean Court of Justice are also relevant. These interpretations are legal rulings that clarify the meaning and scope of provisions under Andean Community Law, issued at the request of national judges or administrative authorities with decision-making powers from the member countries (Ecuador, Colombia, Peru and Bolivia) when such provisions are relevant to resolving a specific case. They form part of Andean Community Law and are mandatorily applicable in the member states.

The grant procedure for patents of invention, utility models and industrial designs in Ecuador is managed by the National Service of Intellectual Rights (Servicio Nacional de Derechos Intelectuales or SENADI) and generally follows these steps.

• Filing of the application: The applicant submits the application with all the required documentation and payment of the filing fee to SENADI.
• Formal examination: SENADI examines the application for compliance with formal requirements. If deficiencies are found, the applicant is typically given a period (eg, two months, often extendable) to correct them.
• Publication: Once formal requirements are met, the application is published in SENADI’s Intellectual Property Gazette (Gaceta de la Propiedad Intelectual).
• Opposition period:

1. For patents of invention – from the publication date, third parties with a legitimate interest have 60 calendar days in which to file an opposition.
2. For utility models (UMs) and industrial designs (IDs) – from the publication date, third parties have 30 working days in which to file an opposition.

• Applicant’s response to opposition (if any): If an opposition is filed, the applicant is notified and given a period (eg, 60 calendar days for patents, extendable; similar for UMs/IDs by reference to patent procedures) to submit arguments and evidence in defence of their application.
• Substantive examination (for patents of invention and utility models only):
1. The applicant must request substantive examination within six months of publication (for patents) or as part of the process for utility models. At this stage, amendments to the claims and the descriptive section of the patent may be submitted.
2. Payment of the substantive examination fee is required.
3. SENADI conducts the examination to assess patentability (novelty, inventive step, industrial applicability). SENADI may issue office actions detailing objections, to which the applicant must respond within a set period (typically 60 days, extendable). Multiple rounds of examination are possible. For utility models, the examination focuses on novelty and industrial applicability, with a less stringent inventive step (functional improvement).
• Resolution on grant or refusal: Based on the examinations and any oppositions, SENADI issues a resolution either granting or refusing the IP right.
• Issuance of title/certificate: If granted, and upon payment of any applicable grant fees, SENADI issues the corresponding title or certificate of registration.

For industrial designs, after the opposition period (or resolution of any opposition), if the application meets requirements, SENADI proceeds to grant and issue the registration certificate without a separate substantive examination phase comparable to patents; the examination focuses on novelty and ensuring the design is not dictated by purely technical function or an illicit type.

Key aspects concerning the timeline for the grant procedure, the need for legal representation, and average official costs for obtaining technical IP rights, such as patents, utility models, and industrial designs in Ecuador are as follows.

Typical Duration of Grant Procedure

• Patents of invention: The grant procedure can be lengthy, historically averaging several years (sometimes cited as five to eight years or more, though efforts are ongoing to improve efficiency).
• Utility models: Generally faster than patents, potentially two to four years.
• Industrial designs: Usually the quickest, potentially one to two years, assuming no complex oppositions.

These are estimates and can vary significantly based on factors like examination backlogs at SENADI, the complexity of the invention, the number of office actions, and whether oppositions are filed.

Representation

• There is no express provision requiring mandatory legal representation for Ecuadorian domiciliaries. However, given the technical and legal complexities, using a qualified local IP attorney is recommended.
• Applicants or rights-holders not domiciled in Ecuador must appoint a local representative (an attorney licensed in Ecuador) with sufficient power of attorney, registered with SENADI, to act on their behalf in all proceedings.

Average Official Costs

These are subject to change by SENADI and do not include professional attorney fees.

• Patents of invention:
1. filing fee – approximately USD495 (plus additional fees for more than ten claims, eg, USD55 per extra claim);
2. official annuity fee – from USD195 to USD2,097.06; and
3. substantive examination fee – approximately USD596 (may increase for applications exceeding a certain page count).
• Utility models:
1. filing fee – approximately USD136;
2. official annuity fee – from USD12 to USD16; and
3. examination fee – approximately USD196.
• Industrial designs:
1. filing fee – approximately USD526.

Applicants should always verify the current official fee schedule with SENADI or their local counsel. Additional fees may apply for extensions, modifications, late payments, etc.

The duration of protection for patents of invention, utility models and industrial designs, counted from their respective filing dates in Ecuador, is as follows:

• patents of invention – 20 years;
• utility models – ten years; and
• industrial designs – ten years.

Owners of granted technical IP rights in Ecuador have certain exclusive rights concerning the exploitation of their protected invention or design and are also subject to specific obligations to maintain these rights.

Rights

The owner has the exclusive right to exploit the protected invention or design and to prevent third parties from doing so without authorisation. The owner’s rights include the following.

For patents of invention and utility models

• If the subject matter is a product: The right to prevent others from making, using, offering for sale, selling, or importing the protected product.
• If the subject matter is a process: The right to prevent others from using the process, and from using, offering for sale, selling, or importing a product obtained directly by that process.

For industrial designs

The right to prevent third parties from manufacturing, selling, offering for sale, or importing products that incorporate or reproduce the protected design, or a design that only presents minor differences or is confusingly similar in appearance.

To enforce these rights, the owner can:

• initiate administrative actions before SENADI (eg, for precautionary measures, declaration of infringement);
• file civil lawsuits for injunctive relief and monetary damages; or
• request border measures to prevent the importation of infringing goods.

Obligations

The primary obligations of the owner include the following.

Payment of maintenance fees (annuities)

For patents of invention and utility models, annual fees must be paid to SENADI to keep the right in force. Failure to pay leads to lapsing of the right. (Industrial designs typically involve a single registration fee for their entire term, not annual fees.)

Using the invention

For patents and utility models, the owner has an obligation to use (exploit) the patented invention in Ecuador. Failure to do so, or if exploitation does not meet the needs of the national market, can be grounds for third parties to request a compulsory licence after a certain period.

Registration of changes and licences

The owner must register any changes in ownership, name, address, as well as any licences granted, with SENADI for them to have effect against third parties.

Complying with legal and regulatory requirements

The owner must adhere to all the applicable provisions of IP laws and regulations.

Public Information on Patents

The Intellectual Property Gazette published by SENADI contains information on filed applications, granted rights and other relevant IP matters, and is publicly accessible.

However, Ecuador does not currently have a specific public database that directly links granted patents to commercial products. To determine if a specific product or process is covered by a patent, interested parties typically need to conduct specialised patent searches, which can be requested from SENADI.

In Ecuador, there is no provision for additional or supplementary protection that would extend the prescribed maximum term of protection for technical IP rights like patents or utility models.

Article 291 of COESC explicitly states that no supplementary protection of any kind, under any title or modality, will extend the statutory term of protection for patents. This means concepts like supplementary protection certificates (SPCs), available in some other jurisdictions for specific products, do not exist in Ecuador. Once the maximum term from filing (ie, 20 years for patents, ten years for utility models) has lapsed, the invention enters the public domain in Ecuador.

Third parties do have the right to participate in the grant proceedings for patents of invention, utility models, and industrial designs in Ecuador. This participation primarily occurs through the filing of an opposition after the application has been formally examined and published in SENADI’s Intellectual Property Gazette.

The procedure is as follows:

• Publication – The application is published in the Gazette.
• Opposition period –
1. For patents of invention: Third parties with a legitimate interest have 60 calendar days from the publication date to file a substantiated opposition with SENADI, outlining the reasons why the patent should not be granted (eg, lack of novelty or inventive step, etc).
2. For utility models and industrial designs: Third parties with a legitimate interest have 30 working days from the publication date to file an opposition.
• Notification to applicant – SENADI notifies the applicant of any opposition filed.
• Applicant’s response – The applicant has a period (typically 60 calendar days for patents, extendable once; similar rules apply for utility models and industrial designs by reference to the patent opposition procedure) to respond to the opposition, submitting arguments and evidence to defend their application.
• SENADI’s decision – SENADI will consider the opposition and the applicant’s response as part of the examination process before issuing a final resolution on the granting or refusal of the IP right.

If SENADI issues a final resolution refusing to grant an IP right (eg, a patent, utility model, or industrial design), the applicant has the following remedies to challenge this decision.

Administrative Remedies

Appeal

The applicant can file an appeal against the refusal decision. This appeal is typically made to the hierarchical superior of the SENADI official or body that issued the refusal (eg, the director general of SENADI). According to the Código Orgánico Administrativo (COA), the term to file an appeal is generally ten working days from the notification of the contested act.

Extraordinary Motion for Review

Under very specific circumstances established in the COA (eg, discovery of decisive new evidence, manifest error of fact or law that influenced the decision), an extraordinary review can be requested even against firm administrative acts.

Judicial Remedy (Contentious-Administrative Action)

After administrative remedies have been exhausted (ie, a final decision has been reached within SENADI, or if the law allows direct judicial recourse from certain administrative decisions), the applicant can challenge SENADI’s final refusal by filing a subjective action (acción subjetiva o de plena jurisdicción) before a contentious-administrative court.

The general term for filing such a judicial action is 90 calendar days from the day following the notification of the final administrative act that concluded the administrative procedure, or otherwise from when it became final and unappealable through ordinary administrative routes.

In Ecuador, failure to pay the required annual maintenance fees (annuities) for patents of invention and utility models results in the automatic lapsing of the right. This means the protection afforded by the IP right ceases, and the invention falls into the public domain. (It is important to note that industrial designs typically have a single registration fee covering their full term and are generally not subject to annual maintenance fees.)

However, a remedial measure exists. The rights-holder is granted a grace period of six months to pay the outstanding annuity. This period is counted from the original due date of the annual fee. Payment made within this grace period is subject to a 50% surcharge on the overdue annuity amount.

If the overdue annuity and the corresponding surcharge are not paid even within this six-month grace period, the lapsing of the patent or utility model becomes definitive, and the rights are generally lost permanently.

In Ecuador, once a patent has been granted, the patent holder can request certain amendments. These amendments fall into the following two main categories.

Changes to Holder Information

Article 300 of COESC requires the patent holder to register any changes in their name, address, domicile, or other relevant details, including those of their representative, with SENADI. Failure to register such changes means notifications sent to the address on record will be deemed valid.

Amendments to the Patent Itself

The patent holder may also request amendments to the granted patent document. These are typically restricted to:

• Limiting the scope of one or more claims (eg, narrowing a claim, but not broadening it to cover subject matter not initially disclosed or claimed).
• Correcting material errors (eg, obvious clerical errors, mistakes in drawings, or translation errors) provided these corrections do not result in an extension of the protection conferred by the patent or alter the essence of the invention.

All such requests for amendments must be submitted to SENADI and will follow the applicable administrative procedures, which typically involve filing specific forms and potentially paying official fees. SENADI will examine the request to ensure it complies with all legal requirements before approving any amendment to the patent.

In Ecuador, the owner of a technical IP right that has been infringed upon can pursue actions through two main mechanisms: administrative proceedings or judicial proceedings. It is not necessary to resort to both administrative and judicial mechanisms.

Administrative Mechanisms (Before SENADI)

The rights-holder can file an administrative action with SENADI seeking:

• Observance actions (tutelas administrativas) to declare that an infringement has occurred and to order the cessation of infringing acts.
• Precautionary measures – SENADI can issue various precautionary measures ex officio or at the request of a party to prevent an infringement, stop an ongoing one, or secure evidence. These are not limited to a specific list and can include seizure of goods, suspension of activities, etc. These measures can be confirmed as final in SENADI’s ultimate decision.
• Border measures – SENADI can order the suspension of customs clearance for goods suspected of infringing IP rights.
• Sanctions – If infringement is declared, SENADI can impose fines on the infringer; however, these fines are payable to the state, not as compensation to the rights-holder.

Decisions from SENADI can be appealed within the administrative system (to the director general, then potentially to the collegiate body) and subsequently challenged before the contentious-administrative courts (judiciary).

Judicial Mechanisms

The rights-holder can initiate a civil lawsuit before a competent judge to:

• Claim damages – To obtain monetary compensation for the losses suffered due to the infringement. This action can be filed irrespective of whether an administrative action was previously initiated, though a prior infringement declaration by SENADI can support the judicial claim.
• Take precautionary measures – Civil judges are also empowered to order any appropriate precautionary measures to prevent or stop the infringement and secure evidence, especially if no prior action has been taken before SENADI or if SENADI’s measures need enforcement or supplementation.
• Determine whether there has been an infringement: If the infringement has not previously been declared by SENADI, the judge will also rule on whether any infringement has occurred.

Judgments from the first-instance civil court can be appealed to the provincial court. The provincial court’s decision may then be subject to an extraordinary appeal (cassation) before the National Court of Justice under specific grounds.

Third parties have several well-defined remedies available to challenge, nullify or limit the effects of technical IP rights. The main remedies are opposition actions (pre-grant), invalidation actions (post-grant), and actions for a compulsory licence.

Opposition Action (Pre-Grant)

An opposition is a pre-grant administrative procedure that allows third parties to challenge a pending patent or industrial design application before it is granted.

Purpose

To prevent the granting of an IP right that does not meet the legal requirements for protection.

Legal basis

Article 42 of Decision 486.

Grounds for opposition

The opposition must be based on the argument that the invention or design fails to meet the substantive requirements for protection. For a patent, this typically includes:

• lack of novelty;
• lack of an inventive step (non-obviousness);
• lack of industrial applicability (utility); and
• the subject matter is excluded from patentability (eg, scientific discoveries, therapeutic methods).

Admissibility and standing requirements

• Standing: The action can be filed by any person with a “legitimate interest”.
• How standing is satisfied: The concept of “legitimate interest” is interpreted broadly. It is generally satisfied by any individual or company that could potentially be affected by the granting of the exclusive right. This includes competitors operating in the same technological or commercial field, individuals or entities that believe they have prior rights to the invention, or academic or research institutions working in the relevant area. The party simply needs to state its position as a competitor or interested party in its brief.

Procedure

The opposition must be filed with SENADI within 60 business days following the publication of the application in the Intellectual Property Gazette. The applicant is notified and has 60 business days to respond. SENADI considers both arguments during the substantive examination.

Invalidation Action (Post-Grant Nullity)

An invalidation action, known as an action for nullity (acción de nulidad), is a post-grant procedure aimed at revoking a granted IP right and declaring it void ab initio (from the beginning).

Purpose

To remove an improperly granted IP right from the register. If successful, the right is considered to have never existed.

Legal basis

Articles 78–80 of Decision 486; Articles 303, 304 of COESC.

Grounds for invalidation

The grounds are largely the same as for opposition – that the right was granted despite not meeting the patentability or registration requirements (novelty, inventive step, etc). Invalidation can also be filed if the grant did not comply with other provisions – such as, it failed to disclose the origin of genetic resources used in the invention.

Admissibility and standing requirements

• Standing: The invalidation action can be initiated by “any interested person” (cualquier persona interesada) at any time during the life of the patent. SENADI can also initiate an invalidation action ex officio.
• How standing is satisfied: As with an opposition action, the “interested person” requirement has a low threshold. A commercial interest (eg, being a competitor) or a legal interest (eg, facing an infringement claim based on the patent) is sufficient. The claimant must simply explain the basis of their interest in seeing the patent invalidated.

Procedure

The action is filed as an administrative claim before the competent authority within SENADI. The decision can subsequently be challenged in the contentious-administrative courts.

Action for a Compulsory Licence

A compulsory licence does not remove the IP right itself but removes its exclusive effect by authorising a third party to exploit a patented invention without the titleholder’s consent.

Purpose

To prevent the abuse of patent rights, address public health needs, or remedy anti-competitive practices.

Legal basis

Articles 61–68 of Decision 486; Articles 310–319 of COESC.

Grounds for a compulsory licence

• Lack of use/exploitation: If the patent has not been exploited in Ecuador within three years from the date it was granted, or if exploitation has been suspended for more than one year.
• Public interest, emergency or national security: The Ecuadorian government can grant licences to address critical public needs (eg, health crises).
• Anti-competitive practices: If a judicial or administrative authority determines the patent holder has engaged in practices that distort competition.
• Dependent patents: When a second patent cannot be granted without infringing a first, prior patent.

Admissibility and standing requirements

• Standing: Any “interested third party” can request a licence.
• How standing is satisfied: For a licence based on non-exploitation, the applicant must demonstrate to SENADI that they have the financial and technical capacity to effectively exploit the patented invention. They must also prove they first attempted to obtain a voluntary licence from the patent holder on reasonable commercial terms and were unsuccessful.
• Procedure: The request is filed with SENADI, which analyses the case, notifies the patent holder, and determines whether to grant the licence and under what conditions (including adequate remuneration for the patent holder).

It is noteworthy that Ecuador has extensive experience in handling compulsory licenses for pharmaceutical patents, which are frequently sought within the country. An expedited procedure for their issuance was established, though this was later deemed inadmissible. Furthermore, the Andean Court of Justice resolved a patent infringement case involving a medicine subject to a compulsory licence in Ecuador, establishing the criteria that must be met to grant such licences on the grounds of emergency or public interest. It is strongly recommended to seek specialised legal counsel to effectively counter these actions.

Other Remedies

Action for lawful use (declaration of non-infringement)

Article 589 of COESC establishes a specific administrative remedy. A person who fears being sued for infringement may request that the competent national authority (SENADI) declare the lawfulness of their acts, confirming that their product or process does not infringe upon a third party’s IP right. This is the most direct way to obtain a declaration of non-infringement.

Post-grant review

There is no formal “post-grant review” system analogous to that in the United States. The invalidation action (acción de nulidad) is the sole and primary mechanism for a substantive post-grant challenge by a third party.

Declaration of non-infringement

A party that fears being sued for infringement can proactively file a civil lawsuit seeking a judicial declaration of non-infringement. This is not an action to “remove the effects” of the IP right, but rather to clarify its scope and confirm that a specific product or process does not fall within the patent’s claims.

• Standing: The claimant must demonstrate a real and current interest in the declaration, typically because they are already producing/selling the product in question or have made significant preparations to do so.
• Procedure: This action is filed before a civil court judge, not SENADI. It is a less common but available judicial remedy.

Lapsing (Caducidad)

This is not a third-party action, but rather the extinction of the right by operation of law if the titleholder fails to pay the annual maintenance fees or the official fees for the patentability examination. Any third party can benefit from the invention entering the public domain for this reason.

Revocation action

This does not exist as an autonomous procedure to nullify a patent. The grounds that could lead to a “revocation” are handled through the nullity action. The term “revoke” in the regulations refers, for example, to rendering a previously granted compulsory licence ineffective.

In Ecuador, jurisdiction in IP matters is divided between contentious-administrative courts (for challenging decisions of the IP administration, SENADI) and civil courts (for infringement claims between private parties).

Actions Against Decisions of the Intellectual Property Administration (SENADI)

These fall under the contentious-administrative jurisdiction.

• First instance: The district contentious-administrative tribunals hear initial lawsuits challenging final administrative acts issued by SENADI, such as decisions on the granting, refusal, or nullity of IP rights, and also lawsuits against resolutions from administrative enforcement actions (tutelas administrativas).
• Extraordinary appeals (cassation): Decisions from the National Court of Justice’s contentious-administrative chamber may under specific and limited grounds be subject to a cassation appeal.

Civil Actions for Infringement of IP Rights

These are, for example, for damages or precautionary measures, and fall under the ordinary civil jurisdiction.

• First instance: Civil judges handle lawsuits filed by IP rights-holders against alleged infringers, seeking remedies such as monetary compensation for damages and precautionary measures.
• Second instance (Appeal): Appeals against judgments from first-instance civil judges are heard by the relevant civil chamber of the provincial court of justice.
• Extraordinary appeals (cassation): Decisions from the provincial courts of justice may, under specific and limited grounds, be subject to a cassation appeal before the National Court of Justice – civil and commercial specialised chamber.

Constitutional Court of Ecuador

In both contentious-administrative and civil IP matters, if a party believes a final judicial ruling has violated their constitutional rights, they may file an extraordinary protection action (acción extraordinaria de protección) before the Constitutional Court. This court examines the alleged constitutional violations in the judicial process or decision.

SENADI is Ecuador’s specialised administrative body for IP matters. It is responsible for the registration of IP rights and also has jurisdiction to hear and resolve certain types of IP disputes through administrative proceedings, such as:

• observance actions (administrative enforcement or tutela administrativa) for infringement;
• nullity and cancellation actions against registered IP rights through the Collegiate Body of Intellectual Rights;
• oppositions during the registration process; and
• the granting of compulsory licences.

In the judicial system, however, there are no formal specialised IP courts or judges. IP infringement cases requiring judicial intervention (eg, civil actions for damages) are heard by general civil judges at the first instance, and appeals proceed through the regular civil court structure. Although some judges in major commercial centres may develop experience in IP cases over time, this is a de facto rather than a formal specialisation.

Parties may also voluntarily agree to resolve IP disputes through alternative dispute resolution (ADR) mechanisms such as arbitration or mediation. Some arbitration and mediation centres in Ecuador have lists of arbitrators and mediators with expertise in commercial and IP law.

To initiate a lawsuit for the infringement of technical IP rights (like patents) in Ecuador, certain conditions must be met, primarily ensuring the claimant’s legal standing and the validity of the asserted right.

Valid and Registered IP Right

The primary prerequisite is that the IP right (eg, patent) must be duly registered and in force with SENADI. An expired or invalidated right cannot be enforced.

Standing of the Claimant (Legitimación en la Causa)

• Rights-holder: Legal action for infringement must generally be brought by the registered owner of the IP right.

• Licensees/assignees: A licensee, particularly an exclusive licensee, may have the right to sue, but often this right depends on the terms of the licensing agreement and whether the licence has been recorded with SENADI. An assignee must have the assignment duly recorded with SENADI to assert rights as the new owner. Recordal of such entitlements is crucial for third parties (like licensees) to have standing to sue independently or jointly with the owner.

No Mandatory Pre-Litigation Communications

Ecuadorian law does not require the claimant to send formal demand letters, cease-and-desist letters, or warning letters to the alleged infringer before filing a lawsuit. However, sending such communications is common practice and can serve to:

• notify the alleged infringer of the IP right and the infringement;
• potentially achieve an out-of-court settlement; and
• demonstrate the rights-holder’s good-faith efforts to resolve the matter before resorting to litigation, which might be viewed favourably by the court, although it does not affect the admissibility of the lawsuit itself.

No Mandatory Prior Mediation or Conciliation

There is no legal requirement to engage in mediation or conciliation before filing an IP infringement lawsuit. These alternative dispute resolution mechanisms are voluntary. However, during judicial proceedings, the judge is obliged to encourage the parties to reach a settlement through conciliation.

Although these are not prerequisites for filing, clear identification of the IP right, the alleged infringing acts, and the evidence supporting the claim are essential components of the initial complaint to ensure its admissibility and proper processing by the court.

Parties involved in most IP matters in Ecuador need to be represented by a lawyer.

Judicial Proceedings

For all lawsuits and contentious-administrative proceedings before the courts, representation by a qualified lawyer admitted to practise in Ecuador is mandatory under the General Code of Procedure (Código Orgánico General de Procesos or COGEP).

Administrative Proceedings Before SENADI

• If a party (applicant, rights-holder or opponent) is not domiciled in Ecuador, they must appoint a local legal representative (lawyer) to act on their behalf in proceedings before SENADI.
• For parties domiciled in Ecuador, while they may theoretically appear on their own behalf for certain simple administrative acts, legal representation by a lawyer is recommended and is practically necessary for effectively navigating complex procedures such as filing applications, responding to office actions, handling oppositions, or pursuing infringement actions.

Exceptions where legal representation might not be strictly required could include the very final stages of formalising an out-of-court settlement agreement or certain non-contentious interactions, but for any formal dispute resolution or rights prosecution, legal counsel is essential.

Interim injunctions, referred to in Ecuadorian law as “precautionary measures”, are available to protect IP rights. These measures can be requested before SENADI (in administrative infringement proceedings) or before a civil judge (in judicial infringement proceedings), and under specific conditions, they can be granted ex parte.

The general conditions typically required by Ecuadorian law (stemming from both COESC and COGEP) for an interim injunction to be granted are:

• Legitimate standing – The party requesting the measure must demonstrate that they are the rightful holder of the IP right or are otherwise legally entitled to act on holder’s behalf (eg, an exclusive licensee with such rights).
• Proof of a valid right – Evidence must be provided showing the existence and validity of the IP right that is allegedly being infringed (eg, a certificate of patent grant or trade mark registration).
• Evidence of infringement or imminent threat – The requesting party must present evidence that provides a reasonable basis to presume that an infringement of the right is occurring or is imminent. This involves showing a prima facie case of infringement (fumus boni iuris).
• Urgency and necessity (often for ex parte) – To prevent irreparable harm or the destruction of evidence, the measure must be necessary. For ex parte orders, a particular urgency is typically required, demonstrating that notifying the other party beforehand would render the measure ineffective or cause greater harm.

These measures can be requested either before SENADI as part of an administrative action for infringement or before a civil judge, including before filing the main infringement lawsuit. The specific nature of the injunction will be tailored to the circumstances to prevent or stop the infringement effectively.

In Ecuador, a party anticipating that an IP owner might take action against them (a “potential opponent”), such as by seeking an interim injunction or alleging infringement, has several ways to protect its interests.

Responding to Ex Parte Measures and the Security Bond

While Ecuador does not have a formal “protective brief” system whereby a potential opponent can preemptively file a general defence against an unknown future ex parte application, it does allow swift action if the opponent becomes aware that an IP owner is seeking or has just obtained an ex parte precautionary measure.

Upon notification of an ex parte precautionary measure, the affected party has the right to immediately appear before the authority that granted it (either SENADI or a civil judge) to oppose the measure.

A key protection is that the IP owner requesting precautionary measures is typically required by the authority to post a security bond (caución or contracautela). This bond is intended to cover potential damages the opponent might suffer if the measure is later found to be unjustified. The potential opponent can:

• argue that the bond set is insufficient to cover their potential damages and request an increase; and/or
• challenge the basis on which the ex parte measure was granted.

Challenging Precautionary Measures

A potential opponent can challenge any granted precautionary measure (whether ex parte or not) by arguing that the legal requirements were not met (eg, lack of a valid IP right, no prima facie evidence of infringement, no urgency, or the measure is disproportionate).

They can request the modification, substitution (eg, for a bond from their side), or lifting/revocation of the precautionary measure.

Proactive Declaratory Actions or Nullity Claims

If the potential opponent has strong grounds to believe that the IP right itself is invalid (eg, a patent lacks novelty or an inventive step, or a trade mark is unregistrable), they can proactively file a nullity action before SENADI to seek its invalidation. A successful nullity action would remove the basis for any infringement claim.

Gathering Evidence and Preparing a Defence

Proactively collecting and preserving evidence that supports the potential opponent’s position is crucial. This can include:

• evidence of non-infringement (eg, technical analyses comparing their product/process to a patent’s claims; market studies for trade marks);
• evidence supporting the invalidity of the IP right;
• documentation of prior-use rights, if applicable; and/or
• evidence of licences or authorisations.

Legal Counsel and Negotiation

Engaging specialised IP legal counsel to understand their rights and options.

Counsel can also explore possibilities for negotiation with the IP owner to resolve potential disputes before formal actions are taken or escalated.

While a preemptive “protective brief” against a yet-to-be-filed action is not a standard defined procedure, a well-prepared potential opponent can effectively use the existing mechanisms – particularly challenging the grounds for injunctions, the adequacy of security bonds, and, where appropriate, the validity of the IP right itself – to protect their interests.

According to the Andean regulations applicable in Ecuador, the statute of limitations for patent infringement actions is governed by a dual system.

The legal basis is found in Article 244 of the Andean Community Decision 486. This provision establishes a limitation period with two distinct triggers:

• the action for infringement will prescribe two years from the date the right-holder gained knowledge of the infringement; or
• the action will prescribe five years from the date the infringement was last committed.

This framework means two concurrent deadlines are in effect:

• a subjective two-year period, which begins once the titleholder has actual knowledge of the infringing activity; and
• an objective five-year period, which acts as an absolute deadline, calculated from the last infringing act, regardless of the titleholder’s awareness.

The law does not differentiate the limitation period based on the type of relief sought (eg, injunctive relief, damages). Therefore, these time limits apply to the entire “infringement action”, which encompasses all measures and remedies the titleholder can request.

The Ecuadorian legal system provides mechanisms through which a party in an IP matter (either before or after formal proceedings have begun) can obtain relevant information and evidence from the opposing party or, in some cases, from third parties. These mechanisms are available in both administrative proceedings before SENADI and judicial proceedings before the courts. Key mechanisms include the following.

Judicial Proceedings (Contentious-Administrative and Civil Courts)

Preparatory diligences (diligencias preparatorias)

Right: Any party may, before filing suit, request preparatory diligences to:

• establish or complete the parties’ standing; and/or
• secure urgent evidence at risk of being lost or altered.

Legal basis and scope:

• COGEP Article 120 (“Application”) listing the two purposes above;
• COGEP Article 122 (“Types of preparatory diligences”), which expressly allows – among others –
1. exhibition of documents or goods;
2. inspection of premises or items that may perish; and/or
3. urgent depositions of ill or soon-departing witnesses.

Procedure:

• file a written petition stating the target, purpose and evidence sought;
• judge conducts a prima facie review and, if granted, sets date and notifies the respondent; and
• results are recorded by act and bind the same judge who will hear the main case.

In-proceeding evidence orders

Document production and inspections – after the case is under way, parties may formally request:

• the exhibition of books, records, samples or allegedly infringing goods;
• judicial inspections of premises, products, or processes;
• expert reports on technical issues; and/or
• witness and party statements under oath.

Administrative Proceedings Before SENADI

Preparatory diligences (diligencias preparatorias)

Right:

SENADI may – before initiating an administrative enforcement action – conduct its own preparatory diligences to –

• verify the applicant’s standing;
• preserve or collect evidence at risk of alteration or loss, such as:
1. information requests to alleged infringers, third parties, or public agencies;
2. exhibition of suspected infringing goods or relevant documents; and/or
3. digital verification of online infringements.

Procedure:

• submit a form specifying the target, location, object, and purpose, plus proof of fee payment;
• SENADI must qualify and schedule the diligence within or ask for clarification once;
• upon completion, an act is drawn up and added to the administrative file – if obstructed, non-compliance is noted as an adverse inference.

In-process evidence and inspections

Once administrative proceedings are under way, SENADI can:

• order tangible inspections of factories or storage facilities;
• impose border measures (suspension of customs clearance);
• require technical reports or market analyses; and
• conduct online monitoring of e-commerce and digital platforms.

General Requirements and Use

Relevance and pertinence

Any request to obtain evidence must demonstrate the relevance and pertinence of the information or evidence sought to the subject matter of the dispute.

Specificity

Requests should be as specific as possible regarding the information or items sought. Fishing expeditions are not generally permitted.

Timing

Precautionary measures to secure evidence can often be requested before initiating the main lawsuit or administrative action, or during the proceedings. Other evidence-gathering requests (like exhibitions or statements) typically occur after proceedings have commenced, often during the evidence phase.

Use of information

Evidence obtained through these mechanisms is intended for use in the specific IP proceeding for which it was gathered. Confidential information obtained may be subject to protective orders or confidentiality undertakings to prevent its misuse.

These mechanisms, while not identical to broad “discovery” in common law systems, provide significant avenues for parties to gather necessary evidence.       

In Ecuador, the initial pleading standards for a complaint or other documents initiating a lawsuit, including those in IP proceedings, are primarily governed by COGEP, particularly Article 142.

Required Elements and Level of Detail

The complaint must contain, at a minimum:

• Designation of the judge – the judge or court deemed competent to hear the case.
• Claimant’s information – full identification of the claimant (plaintiff), including name, ID number, domicile, and contact details for notifications.
• Defendant’s information – full identification of the defendant(s), including their name and precise domicile for service of process.
• Narration of facts – a clear, detailed and itemised narration of the essential facts upon which the claim is based. This section requires specificity to allow the defendant to understand the allegations and prepare a defence.
• Legal grounds – a clear exposition of the legal provisions and principles supporting the claim, linking the narrated facts to the alleged violation of rights. For IP cases, this would involve citing relevant articles from COESC, Andean Community Decision 486, and other applicable laws.
• Specific claims – a clear and precise statement of what the claimant is seeking from the court (eg, a declaration of infringement, cessation of infringing acts, damages, publication of the judgment, etc). If damages are claimed, the amount or basis for their calculation must be specified.
• Announcement of evidence – the claimant must announce all means of proof they intend to use to support their claims –
1. Documentary evidence: all supporting documents must be attached to the complaint. If not available, their content, location, and the reason for unavailability must be indicated, requesting the judge to order their production if necessary.
2. Other evidence (testimony, expert reports, inspections): for other types of evidence, the complaint must specify the facts intended to be proved by each, and in the case of witnesses or experts, their names and domiciles.
• Procedure requested – indication of the type of judicial procedure being sought (eg, ordinary procedure, which is common for complex IP cases). In applications for provisional measures prior to the adoption of enforcement actions, a favourable report issued by the competent authority, in this case SENADI, is required to certify the ownership and validity of the IP right.
• Signatures – the complaint must be signed by the claimant (or their legal representative) and their sponsoring lawyer.

Special Provisions for IP Lawsuits

While COGEP sets the general pleading standards, IP lawsuits require specific details pertinent to the nature of the right and the alleged infringement:

• Identification of the IP right – precise details of the registered IP right being enforced (eg, patent number, date of grant, specific claims infringed; trade mark registration number, classes covered; copyright registration details, if applicable).
• Description of the infringement – a specific description of the alleged infringing acts or products, clearly linking them to the scope of the protected IP right. For patents, this often involves an analysis of how the defendant’s product or process meets the elements of the asserted claims.

Plausibility and specificity

The complainant must present a plausible case. The facts must be alleged with sufficient specificity to inform the defendant and the court of the precise nature of the dispute. Vague or overly general allegations may lead to the complaint being deemed inadmissible or unclear.

Supplementary Pleadings

Modification of the complaint (reforma a la demanda)

The claimant may modify (reform) the complaint once before the defendant files their answer, provided the core claims or parties are not substantially altered in a way that changes the nature of the action entirely (COGEP Article 148). However, it is important to note that the modification of the complaint is not admissible in lawsuits processed under the summary procedure (procedimiento sumario). Lawsuits for infringement of IP rights are often processed under this summary procedure, which restricts the possibility of amending the initial complaint.

New facts or evidence after initial pleadings

Introducing new facts or evidence after the initial complaint (and answer) is generally restricted. It is typically allowed only for:

• Hechos nuevos (new facts) – Facts that occurred after the filing of the complaint or answer, or facts that were unknown to the party, despite due diligence, and are relevant to the case. These must be alleged as soon as they are known.
• Evidence related to new facts, or to challenge evidence presented by the opposing party. The system emphasises presenting the entire case and evidence upfront.

The Ecuadorian legal system permits specific forms of representative and collective actions in IP matters, although these differ substantially from the “class action” model known in other jurisdictions. The mechanisms are designed so that right-holders can manage and enforce their rights as a group through legally recognised entities. The primary mechanisms are as follows.

Actions by Collective Management Organisations (CMOs)

This is the most direct and common form of representative action, specifically for copyright and related rights.

Description

CMOs (sociedades de gestión colectiva) are non-profit entities legally authorised to administer the economic rights of multiple authors, artists, performers and producers.

Circumstances and permitted actions

These organisations are granted legal standing to act on behalf of the collective of their members (and are often presumed to represent entire repertoires). Their functions include:

• negotiating and granting licences for the use of their members’ works;
• collecting royalties on behalf of their members; and
• initiating administrative and judicial infringement actions against third parties for the unauthorised use of the rights they manage.

Actions by Associations Holding Collective Industrial Property Rights

This model allows a legally constituted group to be the direct titleholder of an industrial property right, which it enforces on behalf of all its members.

Description

An association of producers or service providers can own and manage a specific IP right collectively. The association, as the titleholder, is the entity with standing to sue.

Circumstances and permitted actions

• Collective marks: An association can register a collective mark to distinguish the products or services of its members. The association is then responsible for enforcing the mark against unauthorised use, thereby protecting the commercial interests of all its members who use the sign.
• Denominations of origin (DO): Associations of producers are granted legal standing to request the official declaration of protection for a DO. They play a key role in the management, control and defence of the geographical indication.

Key Differences from a “Class Action”

The Ecuadorian mechanisms differ from a “class action” in that they are not designed to group together individual claims for damages from a diffuse set of consumers or unrelated parties. Instead, they are structured for the collective management and enforcement of the IP right itself by a pre-existing, legally organised entity representing the right-holders.

The Ecuadorian and Andean legal frameworks establish significant restrictions on an IP owner’s ability to assert their rights. These limitations are designed to prevent monopolistic abuse, protect free competition, and safeguard the public interest. The main restrictions are as follows.

Restrictions Based on Competition Law and Abuse of Rights

The assertion of an IP right is explicitly limited by competition law.

Abuse of a dominant position

If a patent holder’s actions are deemed to be an abuse of their dominant market position by the competent national authority on competition, this can trigger a compulsory licence (Decision 486, Article 66; COESC Article 315). This forces the owner to license their invention to a third party, thereby breaking the exclusivity of the right.

Anti-competitive licensing agreements

An owner cannot use licensing agreements to impose anti-competitive conditions. The IP authority will not register licensing agreements that violate national or Andean community rules on restrictive commercial practices (Decision 486, Article 58; COESC Article 299).

General abuse of right

The law provides a general principle against the abusive exercise of IP rights. The national authority is empowered to monitor and sanction any “abusive exercise” (ejercicio abusivo) of IP rights, which serves as a broad basis to challenge enforcement actions that are not made in good faith (COESC Article 590).

Compulsory Licensing for Lack of Exploitation

A patent owner has an obligation to “use” or exploit the patented invention in Ecuador. Failure to do so restricts their right to exclude others.

Grounds

If a patented invention has not been exploited in Ecuador within three years of its grant (or four years from its application date), or if its exploitation has been suspended for more than a year, any interested third party may request a compulsory licence (Decision 486, Article 61; COESC Article 310).

Effect

This “use it or lose it” provision prevents a patent from being used merely to block the market without providing the public with the benefit of the invention.

Exhaustion of Rights

The legal system adopts the principle of international exhaustion of rights, which significantly limits the owner’s ability to control the distribution of their products after the first sale.

Description

An IP owner cannot use their right to prevent commercial acts (eg, importation, resale) related to a product that has already been lawfully introduced onto the commercial market of any country by the owner or with their consent (Decision 486, Article 54; COESC Article 295).

Effect

This restriction effectively prevents the right-holder from using their patent or trade mark to block “parallel imports” of genuine goods that were sold legally in another market.

Statutory Exceptions to Enforcement

The law explicitly lists several acts that do not constitute infringement, even if they fall within the scope of a patent’s claims. The owner cannot assert their right against a party performing the following acts:

• Private and non-commercial use – acts done in a private setting and for non-commercial purposes (Decision 486, Article 53(a); COESC Article 294(1)).
• Experimental use – acts performed exclusively for the purpose of experimentation with the subject matter of the patented invention (Decision 486, Article 53(b); COESC Article 294).
• Academic and research use – acts performed exclusively for the purposes of teaching or scientific and academic research (Decision 486, Article 53; COESC Article 294).
• Regulatory submission (bolar exception) – acts related to testing, using or manufacturing a patented invention for the sole purpose of generating the information required to obtain marketing approval for a product, such as a generic medicine (COESC Article 294).

The necessary party to initiate an action for infringement of an IP right is the titleholder (titular). However, the law also recognises that “other legitimised persons” may have legal standing, which primarily includes certain exclusive licensees under specific conditions.

The Titleholder (Titular)

The owner of the IP right is the principal party entitled to file an infringement action. The law explicitly grants this standing to:

• The registered owner of a patent, utility model, industrial design or trade mark.
• The author, artist, producer or other holder of a copyright or related right.
• Any co-owner (cotitular) of an IP right, who may file an action independently without needing the consent of the other co-owners, unless they have a specific agreement to the contrary.

The titleholder may seek all available remedies, including injunctive relief (cessation of infringing acts), damages and the seizure of infringing goods.

Third Parties (Licensees)

The ability of a licensee to sue depends on whether the right is a copyright or an industrial property right, and on the nature of the licence.

Exclusive licensees

• Copyright and related rights: The law explicitly grants independent legal standing to an exclusive licensee (cesionario exclusivo) to pursue infringement actions for the rights covered in their agreement. This right is granted directly by law and does not need to be specified in the contract. For example, an exclusive editor or a licensee of a phonogram producer can sue to protect their licensed rights.
• Industrial property (patents and trade marks): In contrast, the legal framework for patents and trade marks does not explicitly grant independent standing to licensees. Therefore, an exclusive licensee’s right to sue for infringement typically depends on the terms of the licensing agreement. The contract must grant this power, or the licensee may need to act jointly with the titleholder.

Non-exclusive licensees

A non-exclusive licensee does not have legal standing to file an infringement action. Their right is a mere permission from the owner to use the IP, not a right to enforce it against third parties. They must rely on the titleholder to take action.

Important Prerequisite: Licence Recordation

For any type of licence to be effective against third parties – a necessary condition for a licensee to even consider enforcement – it must be recorded with SENADI.

There is no formal distinction between direct and indirect infringement. Under both Andean Decision 486 and Ecuador’s Código Ingenios (Organic Code on the Social Economy of Knowledge, Creativity and Innovation, or the “Ingenuity Code”), there is no separate category of “indirect” infringement analogous to contributory or vicarious liability in some jurisdictions. Instead, the law defines a unified regime of prohibited acts, and any party committing any of those acts is equally liable.

Statutory Framework

Enumerated acts

Andean Decision 486, Article 238 grants the right-holder an action “against any person who infringes his or her right. Also against anyone who commits acts manifesting the imminence of infringement.”

There is no separate provision for secondary liability or indirect infringement; every prohibited act – whether manufacturing, importing, selling, using, or offering for sale – falls under the same infringement regime.

Ingenuity Code alignment

The Ingenuity Code similarly defines infringement in broad terms without carving out “indirect” liability.

Remedies for any infringing act are uniform and can be sought administratively (before SENADI) or judicially. These include injunctive relief, damages, destruction of infringing goods, and corrective publication.

Practical Implications

• Any infringing act is actionable – whether it is a direct act (eg, making a patented product) or preparatory. The law does not label these differently.
• Remedies do not vary by “type” of infringer. A party who, for instance, supplies parts used in an infringing device is subject to the same actions as one who assembles or sells the final product.
• Burden of proof for process patents – in process-patent cases, the defendant must prove a non-infringing process when an identical product is found on the market (Decision 486, Article 240), but this remains part of the single infringement framework, not a separate “indirect” category.

Reverse Burden Under Article 240

When a patent protects a process for making a product, Andean Decision 486 (Article 240) imposes a reverse burden of proof:

“In cases alleging infringement of a process patent, the defendant must prove that the method actually used to obtain the product is different from the patented method. It is presumed, unless proven otherwise, that any identical product made without the patentee’s consent was produced by the patented process if:

a) the patented-process product is novel; or

b) there is a substantial likelihood that the identical product was made by that process and the patentee, despite reasonable efforts, cannot determine the actual method used.”

Defendants may introduce contrary evidence, including to protect legitimate trade‐secret interests. 

In practice, the provision in paragraph b) is applied, since it is enough for the patent holder to request an inspection at the counterpart’s factory to verify the process, for the judge to reject it and the counterpart to oppose it, which will serve as grounds to apply the reversal of the burden of proof.

Territorial Scope and Evidence Gathering

Territoriality

Ecuadorian courts apply this presumption only to products made, used, sold or imported into Ecuador. Steps of the process carried out entirely abroad do not trigger Ecuadorian patent rights or Article 240.

Extraterritorial inspections

It is extremely unusual for judges to conduct inspections abroad. Usually, to examine foreign premises or processes, they must issue letters rogatory (judicial requests) to foreign courts, asking them to perform inspections or evidence‐gathering on Ecuador’s behalf.

Practical rarity

In practice, such judicial requests for process verification are extremely rare, due to the complexity, cost and the unpredictability of foreign co-operation.

Practical Impact

• A patentee alleging process‐patent infringement will typically focus on domestic evidence – eg, examining products seized at Ecuadorian ports or in local markets – and rely on Article 240’s presumption.
• If essential steps occurred abroad and this cannot be proven differently in Ecuador, the claim may be untenable, unless the product itself is imported.
• Parties often seek voluntary expert declarations rather than endure protracted judicial request proceedings.

In summary, Ecuadorian law firmly presumes infringement for identical products under Article 240, but this remains territorial in that foreign process steps lie outside its direct reach, and while judicial requests can bridge that gap, they are seldom used in practice.

Pursuant to Article 51 of Decision 486 of the Andean Community, the scope of protection of a patent is determined by the granted claims. Accordingly, protection is limited exclusively to what is expressly described and defined in those claims. In addition, to better identify the scope of the patent, the International Nonproprietary Name (INN) is also used, as it provides a standardised and accurate reference for the substance in question.

With respect to the applicable principles, the authorities rely on the provisions set forth in Decision 486 of the Cartagena Agreement and COESCCI. The analysis focuses on whether an infringement has occurred, and based on that assessment, it is determined whether the conduct described falls within the scope of the patent and, if so, whether it warrants legal sanction.

The potential defendant may request that a bond be posted in order to avoid the enforcement of precautionary measures; file a counterclaim asserting that no infringement has occurred; request the invalidation of the patent; or seek a settlement to avoid litigation.

In addition to the actions described above, it is also possible to file a cancellation action for non-use, if it can be demonstrated that the patent holder is not making use of the patent while nonetheless preventing others from using it.

It is also possible for the defendant to argue that their conduct constitutes one of the acts permitted by Article 53 of Decision 486 of the Cartagena Agreement. That is to say, the following acts were carried out:

“a) acts performed in a private setting and for non-commercial purposes;

b) acts performed exclusively for experimental purposes concerning the subject matter of the patented invention;

c) acts performed exclusively for teaching or for scientific or academic research purposes;

d) acts referred to in Article 5ter of the Paris Convention for the Protection of Industrial Property;

e) when the patent protects biological material (excluding plants) capable of self-replication, using it as an initial basis to obtain viable new material, except where to do so requires repeated use of the patented entity.”

In cases involving technical rights such as patents, experts play a central role in helping the court understand complex factual and technical matters. The appointment and use of experts is governed by COGEP and supplemented by IP-specific provisions in COESCCI.

Role of Experts in IP Litigation

Experts assist in:

• explaining technical aspects of the invention or design;
• determining whether an infringement has occurred (eg, claim interpretation and comparison);
• calculating damages (eg, lost profits or reasonable royalties); and
• assessing prior art and novelty or inventiveness (in cancellation or nullity actions).

Their findings are especially critical in patent disputes, where judges may lack specialised scientific or engineering knowledge.

Appointment of Experts

Court-appointed experts

The judge may appoint experts directly from the official registry maintained by the judiciary. This is the most common form of expert involvement. Parties may suggest the subject matter for evaluation but not the individual expert. The expert must submit a written technical report (informe pericial), which is later discussed during the hearings.

Party-appointed experts

Each party may also present their own private expert opinions as part of the evidence. These are not considered “judicial expert reports” but may influence the court, especially if supported by clear reasoning. These reports often serve to contradict or challenge the court-appointed experts’ conclusions.

Joint experts

In some cases, the parties may agree to nominate a single expert together, subject to court approval.

In Ecuador, there is no standalone or separate procedure exclusively dedicated to the interpretation of patent claims. However, during the examination process, the examiner in charge must identify the claims and assess whether they meet the legal requirements. Similarly, during an opposition proceeding or in the context of a patent infringement case, the authority may also interpret the terms of the patent claims as part of its analysis.

There is no formal amicus curiae in Ecuadorian patent litigation, but both the judicial and administrative systems allow third-party participation where a party can show direct legal interest. For example, a third party may file an opposition during the patent application process, setting out the grounds on which the granting of the patent could cause harm or conflict with existing rights. Additionally, if the patent is granted, an interested third party may file an administrative or judicial challenge against the resolution that conferred the IP right.

Invalidation Action (Acción de Nulidad)

This action can be used to challenge the validity of a patent.

Revocation Action (Acción de Cancelación)

This action is also available against IP rights.

Action for a Compulsory Licence

This remedy allows third parties to obtain a licence to use a patented invention under specific circumstances, including:

• when the patent is not being sufficiently used;
• for reasons of public interest;
• due to anti-competitive practices;
• for dependent patents; or
• for plant breeders.

Standing to Sue

Anyone that has “legal or commercial interest” can initiate an action. For example, any interested person can request the inscription of a transfer of a patent.

Partial revocation or cancellation of IP rights is possible in Ecuador, particularly in the context of industrial property (such as trade marks and patents). The legal basis is primarily found in the Ingenuity Code and in relevant Andean Community regulations, especially Decision 486.

Trade Marks

Partial cancellation may apply under the following conditions:

Non-use

If a registered trade mark has not been used in Ecuador for three consecutive years, it may be subject to cancellation for non-use.

• Partial cancellation is allowed only for the goods or services not being used, not necessarily the entire registration.
• The burden of proof lies with the trade mark owner once a cancellation action is filed.

Genericity

If a trade mark has become generic for part of the goods/services, it may be partially cancelled.

Misleading or unlawful use

If a trade mark becomes misleading or violates public order, part of the registration may be cancelled.

Patents

Partial revocation of a patent is possible through:

Administrative nullity

If a part of the claims does not meet patentability criteria (eg, novelty, inventive step), a partial nullity may be declared, leaving only the remaining compliant claims valid.

Voluntary amendment

The patent holder may request a limitation or amendment of the patent, which can lead to partial revocation of certain claims.

Amendments are permitted in revocation or cancellation proceedings, primarily in the context of patents, and to a limited extent in trade mark proceedings. These provisions are governed by COESCCI and Andean Community Decision 486, which together form the foundational legal framework for IP rights in the country.

Patents

Amendment is explicitly allowed in patent revocation or nullity proceedings. The objective of such amendments is generally to preserve the validity of a patent by limiting or refining its claims.

According to Article 75 of Andean Community Decision 486, the owner of a patent may request a limitation of the scope of protection, either by modifying one or more claims or by cancelling one or more of them. This may occur voluntarily or in response to an administrative or judicial nullity action initiated by a third party or by the competent authority.

Amendments in this context must satisfy specific legal conditions:

• They must not introduce new subject matter beyond what was originally disclosed in the patent application.
• The amendment must serve to restrict the scope of the claims, rather than broaden them.
• The proposed changes are subject to review and approval by SENADI, the national IP authority.

This mechanism serves both to protect legitimate patent rights and to eliminate unjustified monopolies over unpatentable subject matter.

Trade Marks

Amendments during trade mark cancellation proceedings are considerably more limited. However, the trade mark-holder may engage in the following:

• Voluntary reduction of goods or services listed under the trade mark registration, particularly when defending against a cancellation action based on non-use. In such cases, the owner may attempt to preserve the trade mark by eliminating unused classes or terms.
• Minor rectifications, such as typographical corrections or clarifications in the representation of the mark, may be permitted as long as they do not alter the distinctive character of the mark.

Substantive modifications to the trade mark itself (eg, its graphical elements, word components, or ownership) are not permitted within the scope of cancellation proceedings.

Limitations

Amendments are strictly regulated to prevent abuse of procedural mechanisms:

• For patents, the introduction of new technical content or the expansion of claims is expressly prohibited.
• For trade marks, any change that affects the distinctive character, ownership or the essential elements of the mark is inadmissible once a cancellation proceeding has commenced.

In Ecuador, nullity or cancellation proceedings (to revoke an IP right) are administrative actions before SENADI (and, on appeal, before contentious-administrative courts), whereas infringement is pursued either via:

• administrative enforcement (tutela administrativa) before SENADI; or
• judicial litigation in the civil courts.

These tracks run in parallel but separate.

When two proceedings involve the same parties, the same subject matter, and the same rights, the Ingenuity Code expressly prevents contradictory decisions by suspending the later-filed case until the first is resolved.

In practice, nullity/cancellation before SENADI can often be faster (total process under one year) than a full judicial infringement trial, but slower than an administrative infringement trial (which focuses on urgent enforcement).

There are no special procedural rules exclusively applicable to IP rights proceedings in Ecuador. These cases are governed by the general rules set forth in COGEP. However, certain procedural dynamics arise in practice due to the technical nature of IP disputes.

Typical Timeline

Proceedings usually take between 12 and 24 months in the first instance, depending on the complexity of the case, the court workload, and whether precautionary measures or expert opinions are involved. If appeals are filed, the proceedings may take twice as long.

Hearings

Depending on the type of proceeding, there may be one or two hearings. In infringement actions, the case is resolved in a single hearing. However, if the action challenges a decision issued by the administrative authority, two hearings will be held

Fact Witnesses and Experts

Experts play a central role in IP cases, particularly in patent litigation, since civil judges are not specialised in the subject matter. Expert reports are typically submitted after the initial hearing, and experts may be summoned to provide oral clarifications during the trial hearing. Fact witnesses may also be called, although they are less common in technical disputes.

Cross-Examination

While cross-examination as understood in common law systems does not exist in Ecuador, parties have the opportunity to question witnesses and experts during the trial hearing, subject to the control of the judge. This process is more limited and judge-led in Ecuador.

Timing of Remedies

Remedies are not always decided together. While the finding of infringement and injunctive relief may be determined in the final judgment, the calculation of damages is often deferred to the enforcement stage. The court may declare the right to compensation and order that damages be quantified in a separate liquidation phase.

SENADI and Civil Judges

As of current practice, Ecuador does not have a separate, specialised IP court or a body of judges exclusively assigned to IP matters.

• IP disputes are generally assigned to civil judges of ordinary jurisdiction.
• Certain administrative IP matters – such as oppositions, cancellations, and administrative infringement proceedings – are initially handled by SENADI, whose resolutions can be appealed to the contentious-administrative court.

Some judicial districts (especially in major cities such as Quito and Guayaquil) may have judges with more experience in commercial or IP-related matters, but specialisation is not institutionalised.

Party Influence on the Selection of Judges and Arbitrators

In civil litigation in Ecuador, the parties do not have discretion to choose the judge. Cases are:

• randomly assigned by the judiciary’s electronic case management system; and
• heard according to the court’s territorial and subject-matter jurisdiction.

In arbitration (contractual IP disputes), parties may have greater control over:

• the selection of arbitrators, including those with technical or legal IP expertise; and
• the procedural rules under which the dispute is resolved.

However, in standard judicial proceedings, the judge is assigned ex officio, and party influence is limited to challenging the judge’s impartiality under exceptional circumstances (which does not include their lack of subject-matter expertise).

In Ecuador, defendants in IP cases have multiple avenues to seek settlement, both informally and through formal procedural mechanisms. The legal framework, primarily set out in COGEP, facilitates negotiated resolutions at various stages of the proceedings.

Voluntary Settlement Prior to or During Proceedings

A defendant may initiate or respond to a settlement offer at any stage – before, during or even after litigation – through direct negotiation or with legal counsel. If a settlement is reached, the parties can formalise it as:

• a private agreement, enforceable through ordinary contractual means; or
• a judicially homologated agreement, whereby the court approves the terms and gives them enforceability as a judicial decision.

Such settlements can include terms like “ceasing the infringing activity”, “compensating the plaintiff”, “licensing the disputed IP”, or other mutually agreed remedies.

Judicial Conciliation Hearing

Under COGEP, one of the main formal mechanisms for settlement is the pre-trial preliminary hearing, which includes a conciliation phase. This is not strictly mandatory in IP cases, but the judge must provide the opportunity for the parties to engage in settlement discussions.

This hearing occurs after the initial written submissions (complaint and answer). The judge will encourage and facilitate dialogue between the parties. If settlement is reached, the court will issue a conciliation acta (settlement order), which has the same legal force as a judgment.

If no agreement is reached, the case proceeds to the evidentiary stage.

Mediation

Mediation is available as a voluntary alternative dispute resolution (ADR) mechanism.

It must be conducted at a certified mediation centre (eg, those authorised by the judicial council or private institutions like the chamber of commerce).

A mediation agreement signed and formalised in this context is enforceable in court.

Mediation is particularly suited for disputes involving:

• licensing agreements;
• technology transfer;
• royalty or contractual obligations; and
• trade mark co-existence agreements.

Mediation is less common in infringement cases, especially where urgent injunctive relief is sought, but it remains legally available.

Arbitration (Contractual IP Disputes)

In cases involving contractual IP matters (eg, breach of licence or technology transfer agreements), arbitration may be available if an arbitration clause exists. The arbitral tribunal may also promote settlement, and Ecuadorian arbitration law permits conciliation within arbitration.

Post-Judgment Settlements

Even after a judgment is issued, parties may settle in the context of enforcement proceedings. The defendant may offer to comply voluntarily or negotiate modified terms of compliance, including payment plans or the cessation of infringing conduct under monitored conditions.

In Ecuador, revocation (nullity or cancellation) and infringement proceedings are kept strictly separate: the former is an administrative action before SENADI (with appeals heard in the contentious-administrative courts), while the latter may be pursued either administratively or in civil court. To avoid conflicting outcomes, the Ingenuity Code requires that whenever two cases involve the same right, parties and facts, the case started second must suspend its process until the first case is finally decided. Thus, if a person files a nullity petition before bringing (or defending) an infringement claim, that infringement action will remain on hold until the nullity petition is decided – and vice versa – often for many months. Ecuadorian courts do not recognise or enforce foreign anti-suit injunctions; domestic IP proceedings proceed under local rules regardless of any parallel orders issued abroad.

Remedies

Injunctive relief (provisional and final)

Patentees may request:

• preliminary (provisional) injunctions, aimed at immediately halting infringing acts before the final resolution of the case; or
• permanent injunctions, issued after a finding of infringement, ordering the defendant to cease the infringing activity.

Conditions for injunctions include:

• evidence of ownership and validity of the patent;
• plausible evidence of infringement; and
• risk of irreparable harm.

Damages

The patentee is entitled to compensatory damages for losses caused by the infringement. Damages may include:

• actual losses suffered by the patentee (eg, lost profits);
• unjust enrichment obtained by the infringer; and
• hypothetical license fees (reasonable royalty) when actual damages are difficult to prove.

There is no express provision for enhanced or punitive damages for wilful infringement under Ecuadorian law.

Legal costs and attorneys’ fees

The prevailing party may recover costs and legal fees, but only if this is explicitly requested and supported by evidence.

The amount is subject to judicial discretion and often limited by statutory guidelines or judicial practice.

Destruction or recall of infringing products

The court may order the seizure, destruction, or removal from the market of infringing goods, packaging, labels, and related materials.

Publication of the judgment

In some cases, the court may order the publication of the decision in a newspaper or other media, at the infringer’s expense, as a corrective or deterrent measure.

Judicial Discretion

Ecuadorian judges have broad discretion in:

• granting or denying injunctions;
• determining the method of calculating damages;
• setting the amount of attorneys’ fees; and
• tailoring the scope and enforcement of remedies.

Discretion is guided by the principles of proportionality, necessity, and good faith, and judges must justify their decisions based on the evidence presented.

Right to Recover Procedural Costs

Under Article 130 of COGEP, the prevailing party in a civil proceeding (including IP cases) may be awarded reimbursement of procedural costs (costas procesales), which can include:

• court filing fees;
• notification and publication costs;
• costs associated with expert witnesses; and
• miscellaneous judicial expenses.

The judge must declare in the final judgment which party is liable for procedural costs.

Attorneys’ Fees

In addition to procedural costs, the prevailing party may also claim attorneys’ fees. Key points include:

• the request for attorneys’ fees must be made explicitly by the party before the judgment is issued;
• the amount awarded is typically based on a judicial tariff or percentage of the value of the claim, but subject to judicial discretion; and
• in some cases, especially where the court finds the claim or defence to be frivolous or abusive, the court may increase or reduce the amount accordingly.

However, full reimbursement of attorneys’ fees is not automatic, and the judge assesses:

• the complexity of the case;
• the reasonableness of the defence; and
• the conduct of the parties during litigation.

Counterclaims and Reputational Remedies

If the prevailing defendant successfully disproves a claim that was manifestly unfounded or malicious, they may:

• file a counterclaim for damages (civil liability), such as for reputational harm or business disruption; and
• seek corrective publication, particularly if the plaintiff initiated public allegations during litigation.

Such remedies are exceptional and require a separate proceeding or specific request within the same case.

Enforcement of Cost Awards

If the prevailing defendant is awarded costs and/or attorneys’ fees:

• the decision is enforceable as a judgment; and
• if the plaintiff does not pay voluntarily, enforcement may proceed through judicial execution (asset seizure, garnishment, etc).

Patents

Available remedies:

• injunctive relief (preliminary and permanent);
• compensatory damages, including lost profits or reasonable royalties;
• destruction or withdrawal of infringing products;
• publication of the judgment; and
• seizure of infringing goods and implements used in infringement.

Utility Models

The available remedies are the same as for patents, but with potential limitations due to the narrower scope and shorter duration of protection. The courts may also be more conservative in awarding high damages due to the simpler or less innovative nature of utility models.

Industrial Designs

Available remedies:

• injunctions to prevent the continued use or manufacture of infringing designs;
• damages, though usually more limited and often based on lost licensing opportunities or market confusion;
• destruction or recall of infringing items; and
• corrective publications.

Trade Secrets (If Considered Under Technical IP)

Although trade secrets are governed under unfair competition and contractual doctrines, when misappropriation involves technical know-how, remedies can include:

• immediate cessation of unauthorised use;
• return or destruction of confidential materials;
• compensatory damages, possibly including disgorgement of profits; and
• criminal sanctions, in serious cases.

If, once the civil proceeding has concluded, the court declares that a valid patent has been infringed, the defendant may file an appeal. This appeal will be decided by the provincial court of justice. Pursuant to Article 261 of COGEP, the appeal has suspensive effect, meaning that further proceedings are halted until the judge issues a decision on the appeal.

Ecuador has no special appellate rules for IP cases. Appeals from any first-instance decision – whether it arose in an IP infringement suit, a nullity action, or an administrative proceeding before SENADI – follow the general COGEP framework. An appeal must be lodged orally at a hearing or in writing within ten days of notification; the opposing party then has ten days to respond. Only “new facts” unavailable at first instance (despite due diligence) may be introduced, and any request for such evidence must be announced in the notice of appeal or its reply. Once admitted – by default with suspensive effect – the appellate court will schedule an oral hearing within 15 days, after which it will issue its decision. Everything else – deadlines, admissibility criteria, and effects – is governed by the same rules that apply to non-IP litigation.

In Ecuador, an appeal is a legal remedy that allows a party to request that a second-instance court reviews a judgment issued by a first-instance court. This review is not limited solely to legal issues but may also encompass the assessment of facts and evidence presented during the proceedings. Under COGEP, the appellate court has the authority to confirm, reverse or modify the challenged decision, thereby conducting a comprehensive review of the case when such a review is requested by the appellant.

In Ecuador there are no mandatory pre-suit “warning” or “protective‐brief” requirements and no filing fee to bring a civil or administrative IP action. The only unavoidable costs before filing are:

• Attorneys’ fees, which are freely negotiated and payable in advance or on retainer.
• The cost of technical or expert reports, often recommended (especially in patent cases) to establish infringement or invalidity. These typically run between USD700 and USD3,500 per report.
• Document‐collection costs (eg, certified copies, sworn translations), which in practice rarely exceed USD300.
• Courier and postage costs for sending cease-and-desist letters or pre-litigation correspondence.

All other procedural steps – sending letters, gathering voluntary evidence, drafting pleadings – incur only the counsel’s time. There is no additional “protective‐brief” fee, nor any requirement to post security or bonds before initiating a suit.

There are no court‐filing fees for initiating either civil or contentious–administrative IP proceedings in Ecuador – access to justice is free regardless of the number of patents or defendants involved. Any sums paid relate solely to administrative fees to SENADI (fixed by ministerial resolution) or to private costs such as expert reports and attorneys’ fees.

In Ecuador, since court proceedings in IP matters do not involve court fees, the main litigation costs consist of attorneys’ fees and evidentiary expenses (such as expert reports or certified documents). Each party is generally responsible for its own legal costs during the proceedings. However, if the prevailing party requests it, the court may order the losing party to reimburse reasonable attorneys’ fees and costs. This is not automatic and is subject to judicial discretion.

Although ADR is more commonly used in contractual contexts or as part of settlement negotiations during ongoing litigation, the following actions are available:

Mediation

This is conducted at an authorised mediation centre, such as those accredited by the judiciary council or private chambers (eg, chambers of commerce). It is voluntary and confidential. A settlement agreement reached through mediation can be enforced as a judicial decision if properly formalised.

Arbitration

This requires a prior arbitration clause in the relevant agreement. It is conducted through institutional or ad hoc tribunals (eg, the arbitration centres of local chambers of commerce). An arbitration award is binding and enforceable under Ecuadorian arbitration law.

The assignment of IP rights – such as patents, trade marks, designs and copyrights – is governed primarily by COESCCI. The transfer of IP rights is permitted under Ecuadorian law, but this is subject to specific formalities and procedural requirements to be valid and enforceable, particularly against third parties.

Form of the Assignment: Written Agreement Required

An assignment of IP rights must be made in writing. This applies to all major categories of IP, including patents, trade marks, industrial designs, utility models, and copyrights.

• The written instrument must clearly identify the subject of the transfer (eg, registration number and type of right).
• It must include the names of the assignor and assignee, as well as the scope of the assignment (total or partial) and any financial terms if applicable.
• Oral agreements are not legally valid for purposes of assignment.

Registration With SENADI

To be legally effective against third parties, the assignment must be recorded with SENADI. Without such registration, the assignee does not have standing to enforce the right in legal or administrative proceedings.

The assignment becomes opposable to third parties only from the date of registration.

For industrial property rights (eg, patents, trade marks, designs), the registration is essential to update ownership in the official registry.

Documents required typically include:

• a copy of the signed assignment agreement or a notarised deed;
• a formal request for recordal, including identification of the parties and IP right; and
• proof of payment of the applicable government fees.

Approval or Examination by SENADI

There is no substantive approval or examination by SENADI of the content of the assignment. The agency’s role is administrative – to verify compliance with formal requirements and to update the registry accordingly.

However, SENADI may reject or suspend recordal if:

• the documentation is incomplete or inconsistent;
• the right in question is subject to unresolved opposition, cancellation or litigation; or
• there is ambiguity about the scope of the transfer.

Restrictions on Assignment

While Ecuadorian law generally permits the free assignment of IP rights, there are a few limitations:

• Moral rights (in copyright) are non-transferable and remain with the author, although some aspects may be waived or licensed.
• In the context of licences, exclusive licensees may not reassign their interest unless this is expressly permitted in the contract.
• For government-funded or employment-based inventions, specific rules apply regarding ownership and transferability, especially in public institutions.

Tax and Compliance Considerations

Assignments may be subject to tax implications, such as value-added tax (VAT) or income tax on royalties, depending on the structure of the agreement. Parties are encouraged to consult with legal and tax advisers, especially in cross-border assignments.

An assignment document between the parties must be signed (and, if originating from abroad, must be duly notarised and bear an apostille).

In accordance with Article 99 of COESCCI, any transfer, authorisation of use, or licensing of any IP right or application in process must be registered with SENADI and will only take effect upon registration. The corresponding fee must be paid and supporting documents submitted to SENADI.

The licence must be in writing (and, if originating from abroad, must be duly notarised and bear an apostille), and must be registered with SENADI. The licence only takes effect from the date of its registration. There is no administrative approval procedure; the authority simply updates its records and verifies compliance with formal requirements.

Pursuant to Article 299, the main restriction on the registration of licensing agreements is the prohibition on registering those through which the transfer or licensing of patents would contravene the provisions of the Common Regime on the Treatment of Foreign Capital and on Trade Marks, Patents, Licences and Royalties, or would breach national or community rules on restrictive business practices, unfair competition, or competition law.

A licensing agreement must be drawn up between the parties (if originating from abroad, the agreement must be duly notarised and bear an apostille).

Pursuant to Article 99 of COESCCI, any transfer, authorisation of use, or licence regarding any IP right or pending application must be registered with SENADI, and will only take effect from the date of such registration. The corresponding fee must be paid to SENADI, and the documents supporting the licence must be submitted.