TRIPS AGREEMENT: - AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS:
The TRIPS agreement is the outcome of discussions in the Uruguay Round of the General Agreement On Tariff and Trade – GATT, is administered by the World Trade Organisation –WTO which sets minimum standards for multiple forms of IPR applicable to nationals of all WTO members.
TRIPS agreement was instrumental in initiating intellectual property law into the global mercantile regime. TRIPS remains the most wide ranging and complete legal instrument on IPR till date.
Another round of discussion in Doha further clarified the reach and scope of TRIPS especially in the light of developing countries who had to undertake transition in their national law to meet the requisites of TRIPS agreement in order to come on par with the harmonized global IPR system.
Aspects of the TRIPS Agreement:
TRIPS features the requirements to be met by nations with respect to:
• Geographical indications
• Appellations of origin
• Industrial designs
• Integrated circuit layouts
• Plant varieties
• Trademarks, Trade dress and Trade secrets
Protection and Enforcement of all these Intellectual Property Rights shall focus on contributing to the promotion of technological innovation and technology transfers that mutually benefit and advance social and economic welfare along with striking an effective balance between rights and duties amongst the signatory member countries.
Scope of TRIPS regarding IPR:
• Defines the types of signs eligible for protection
• Provides for the protection of service marks
• Establishes the minimum rights of trademark owners
• Confers additional protection for marks that are well known in a particular country
• Defines the standards concerning the availability, scope, and use of intellectual property rights, including copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, protection of undisclosed information and control of anti-competitive practices in contractual licenses
• Specifies enforcement procedures
The most practical advantage of TRIPS is that it is versatile enough for member countries to mould TRIPS so as to integrate the features of the agreement along with their existing national law on IPR.
Objectives of TRIPS concerning Patents and Industrial Designs owners:
TRIPS Agreement mandates Member countries to recognize and ensure grant of patents for Inventions irrespective of the place of invention and as to whether products are locally produced or imported . These inventions could be either:
- Products based Inventions or
- Processes based Inventions.
These inventions are applicable to all fields of technology without discrimination or bias after subjecting them to the tests of
- Inventiveness and
- Industrial applicability
However, there are three permissible exceptions to the basic rule on patentability.
1. The first exception is for inventions contrary to public order or morality which is inclusive of inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment. The use of this exception is subject to the condition that the commercial exploitation of the invention must also be prevented and this prevention must be necessary for the protection of public order or morality (Article 27.2).
2. The second exception is that Members may exclude from patentability diagnostic, therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a)).
3. The third exception is that Members may exclude plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, any country excluding plant varieties from patent protection must provide an effective sui generis system meaning an independent category of protection. Article 27.3(b)).
Along with the exclusive rights that must be conferred by a Product Patent of making, using, offering for sale, selling, and importing for these purposes and Process Patent protection of not only over the use of the process but also over products obtained directly by the process, Patent owners have to be given the rights to Assign, Transfer the Patent by Succession and conclude Licensing Contracts. (Article 28).
Member States have to ensure that limited exception provided to the exclusive rights as conferred by a patent, do not unreasonably:
. conflict with the normal exploitation of the patent
. prejudice the legitimate interests of the patent owner and
. takes into account of the legitimate interests of third parties (Article 30).
The term of protection given to a patent is until the expiry of a period of 20 years calculated from the filing date (Article 33).
Members can mandate an Applicant to:
. Disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and
. Indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application (Article 29.1).
. If the subject-matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process, where certain conditions indicating a likelihood that the protected process was used are met (Article 34).
The legitimate rights of the patent owners are to be protected at all times while granting compulsory licenses and governmental use without the authorization of the patent owner. These rights are inclusive of appropriate valuation of the patent and adequate payment in lieu of compulsory licenses. Grants of compulsory licences are to be subjected to objective opinions of higher governmental authorities. Patent owners have to enjoy the assurance that their patent rights are excercised and enjoyed without discrimination regarding the field of technology and whether the patented products are imported or produced locally
Article 25.1 : Signatory States are obligate to protect industrial designs that are:
- Independently created
- New and / or Original
- Significantly different from known designs or combinations of designs features
- Not dictated by and wholly dependent on the technical and / or functional aspects that make designs work
Taking into account the vast number and the short life span of new designs in the textile industry, adequate provisions for protecting such designs must be provided for by Signatory States. Procedural and Formality requirements regarding Costs, Examination, Publication etc., must not hinder opportunities to seek and obtain such protection. This obligation may be met by the members either through industrial design law or through copyright law as deemed necessary. Article 25.2.
It is the Contracting States’ obligation to ensure that third parties not having the design rights’ owners’ consent and authorization are prevented from undertaking for commercial purposes and unlawful gain by way of making, selling, importing articles bearing or embodying a design which is a copy or substantially a copy of the protected design. Article 26.1
Article 26.2 Contracting States retain the power to issue limited exceptions to the protection of industrial designs by ensuring that the exceptions do not:
- Unreasonably hinder the normal exploitation of protected industrial designs
- Unreasonably prejudice the legitimate interests of the owner of the protected design,
- Unreasonably prejudice the legitimate rights and interests of third parties
Article 26.3 The duration of protection accorded to industrial designs shall amount to at least 10 years. The wording “amount to” allows the term to be divided into, for example, two periods of five years.
TRIPS strives to achieve the following:
- The provision of effective and appropriate means for the enforcement of trade related intellectual property rights, taking into account differences in national legal systems;
- Recognizing the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;