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3. Basic Principles
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13
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27
References
28
basic
principles
of
the
trading
system
and
other
3. Basic principles
Non-discrimination
features
prominently:
national
to
provide
the
framework
for
implementation,
basic
principles
of
the
trading
system
and
other
The Agreement is the first agreement under WTO under which the
member nations are required to establish relatively detailed norms
within their national legal systems, as well as to establish enforcement
measures and procedures meeting minimum standards. The three
important features of the Agreement are:
Standards
Enforcem
ent
Dispute
Settlemen
t
First, in respect of each of the areas of IP covered by the Agreement,
each of the member nations is obliged to provide a minimum set of
standards for protecting the respective IPR. Under each of the areas of
IP covered by the Agreement, the main elements of protection are
defined, namely the subject-matter to be protected, the rights to be
conferred and permissible exceptions to those rights, and the minimum
duration of protection. Second, each member nation is obliged to
provide domestic procedures and remedies with respect to protection
of IPR. The Agreement lays down certain general principles applicable
to all IPR enforcement procedures. The Agreement also lays down
The TRIPS Agreement
10
and
the
Part
arrangements.
VII
concerns
various
institutional
recording,
reproduction
and
broadcast
of
live
7.2 Trademark
The agreement defines what types of signs must be eligible for
protection as trademarks, and what the minimum rights conferred on
their owners must be. It says that service marks must be protected in
the same way as trademarks used for goods. Marks that have become
well-known in a particular country enjoy additional protection.
7.4 Patents
The agreement says patent protection must be available for inventions
for at least 20 years. Patent protection must be available for both
products and processes, in almost all fields of technology. Governments
can refuse to issue a patent for an invention if its commercial
exploitation is prohibited for reasons of public order or morality. They
can also exclude diagnostic, therapeutic and surgical methods, plants
and animals (other than microorganisms), and biological processes for
the production of plants or animals (other than microbiological
processes).
8. Enforcement of IPR
The Agreement was not only aimed at providing minimum standards for
protecting IPR but it was also aimed at providing the enforcement of
the same. The Agreement provides minimum standards for the
enforcement of IPR that allows right holders to protect their legitimate
interests through civil court or administrative proceedings. It is not
required for a WTO member nation to establish special or separate
courts for IPR, or specially allocate resources, like man power, special
enforcement offices, etc. for IPR enforcement. Part III of the
Agreement on Enforcement of IPR sets out the obligations of member
nations to establish administrative and judicial mechanisms through
which IPR holders can seek effective protection of their interests. The
general obligation of member nations to provide enforcement
mechanisms requires that enforcement procedures should be available
under their national law so as to permit effective action against any
act of infringement of IPR covered by the Agreement, including
expeditious remedies to prevent infringements and remedies which
constitute a deterrent to further infringements. Member nations are
obligated to ensure that enforcement procedures are fair and
equitable, and not unnecessarily complicated or costly, or entail
unreasonable time limits or unwarranted delays. Regarding the civil
administrative procedures and remedies, the Agreement provides for
equal rights for both the defendant and complaining parties. The rules
of the Agreement provide that both parties should have the
opportunity to present and contest evidence, and that adequate
remedial measures should be available.
The TRIPS Agreement
18
and
formalities
in
connection
with
the
grant
or
Article 64 deals with the dispute settlements. The Articles XXII and
XXIII of GATT 1994 as described and applied by the Dispute Settlement
Understanding (WTOs procedure for resolving the trade quarrels) also
apply to consultations and the settlement of disputes under the
Agreement except as otherwise specifically provided. Article XXIII of
the GATT 1994 provides for three types of cause of action (a set of
India became a party to the TRIPS Agreement in April 1995. The Patent
Act of 1970 was in contravention with the Article 27 of the Agreement.
Hence India needed to take some measures to make its IPR laws
compliant with the Agreement. The Agreement provided a three stage
framework for developing countries like India which did not allow
product patents in the areas of pharmaceuticals and agricultural
chemicals before the Agreement came into force. These three stages
included:
Introduction of Mail-Box facility from 1st January, 1995 for
product patent applications in the field of pharmaceuticals and
agricultural chemicals. These Mail-Box applications were not
examined till the end of 2004. But Exclusive Marketing Rights
(EMR) could be granted for the Mail-Box applications for which a
patent had been granted in at least one member nations and the
application was not rejected in the member nation where the
patent protect was sought by the applicant for the reason of
invention being not patentable.
Compliance with the other obligations of the Agreement such as,
rights of patentee, term of protection, compulsory licensing, etc.
from 1st January, 2000.
Full implementation of product patents in all technological
domains including pharmaceuticals and agricultural chemicals
with effect from 1st January, 2005. Also, all Mail-Box applications
were to be taken for examination from 1st January, 2005.
Thus the Agreement came into force in India from 1 st January, 2005.
The Agreement changed the face of the IP regime in the world. Many
developing countries, including India, which had weaker IPR systems
(for example, patents) had to extensively revise their patent laws, or
where there were no IPR regimes (the most important examples being
plant variety protection, layout designs and geographical indications)
had to put in place new IPR systems. The implications of the
Agreement have their own pros and cons.
period.
The
other
positive
implication
of
List of Acronyms
FDI
IP
: Intellectual Property
IPR
WB
: World Bank
References
The TRIPS Agreement
27
http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
http://www.unctad.org/en/docs/edmmisc232add18_en.pdf
http://www.wto.org/english/docs_e/legal_e/27-trips.pdf
http://www.worldtradelaw.net/uragreements/tripsagreement.pdf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1305585
http://www.unescap.org/tid/publication/techpub2188.pdf