Trips Wto v1

8/13/2019 Trips Wto v1

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TRADE RELATED ASPECTS OF INTELLECTUALPROPERTY RIGHTS

(TRIPS)

GROUP 6 NIKHIL GUPTA (063029) NIKHIL GURG (063030)SHASHWAT DHAMY (063047)

URVASHI MISHRA (063059)VAIBHAV BHATIA (063060)


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DISPUTE DS50INDIA PATENT PROTECTION FOR

PHARMACEUTICAL AND AGRICULTURALCHEMICAL PRODUCTS

ROLE PLAY


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TRIPS

Intellectual property rights are the rightsgiven to persons over the creations of theirminds. They usually give the creator anexclusive right over the use of his/hercreation for a certain period of time.

Main Areas of TRIPS1. Copyright and rights related to copyright2. Industrial property


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COPYRIGHT AND RIGHTS RELATED TOCOPYRIGHT

The rights of authors of literary and artistic works (suchas books and other writings, musical compositions,paintings, sculpture, computer programs and films)are protected by copyright, for a minimum period of50 years after the death of the author.

Also protected through copyright and related(sometimes referred to as neighbouring) rights arethe rights of performers (e.g. actors, singers and

musicians), producers of phonograms (soundrecordings) and broadcasting organizations. Themain social purpose of protection of copyright andrelated rights is to encourage and reward creativework.


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Industrial property can usefully be divided into two mainareas:

One area can be characterized as the protection ofdistinctive signs, in particular trademarks (which distinguishthe goods or services of one undertaking from those of otherundertakings) and geographical indications (which identify

a good as originating in a place where a givencharacteristic of the good is essentially attributable to itsgeographical origin).

The protection of such distinctive signs aims to stimulate andensure fair competition and to protect consumers, byenabling them to make informed choices between variousgoods and services. The protection may last indefinitely,provided the sign in question continues to be distinctive.

Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology.In this category fall inventions (protected by patents),industrial designs and trade secrets.

INDUSTRIAL PROPERTY


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The WTOs Agreement on Trade -Related Aspects ofIntellectual Property Rights (TRIPS), negotiated in the1986-94 Uruguay Round, introduced intellectualproperty rules into the multilateral trading system forthe first time.

The WTOs TRIPS Agreement is an attempt to narrowthe gaps in the way these rights are protected aroundthe world, and to bring them under commoninternational rules. It establishes minimum levels of

protection that each government has to give to theintellectual property of fellow WTO members.

BASIC INTRODUCTION TO TRIPS AGREEMENT


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BROAD ISSUES COVERED UNDER TRIPS

how basic principles of the trading system andother international intellectual property agreementsshould be applied

how to give adequate protection to intellectual

property rights how countries should enforce those rightsadequately in their own territories

how to settle disputes on intellectual propertybetween members of the WTO

special transitional arrangements during the periodwhen the new system is being introduced.


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STANDARDS CONCERNING THEAVAILABILITY, SCOPE

AND USE OF INTELLECTUAL PROPERTY RIGHTS


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Article 1 Nature and Scope of Obligations

GENERAL PROVISIONS AND BASICPRINCIPLES

Members shall give effect to the provisions of thisAgreement. Members may implement in their law moreextensive protection than is required by this Agreement,however there is no obligation.

For the purposes of the Agreement, the term "intellectualproperty" refers to all categories of intellectual property

that are the subject of Sections 1 through 7 of Part II i.e.Copyright and Related Rights, Trademarks, GeographicalIndications, Industrial Designs, Patents, Layout-Designs(Topographies) of Integrated Circuits and Protection ofUndisclosed Information.


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ARTICLE 2

INTELLECTUAL PROPERTY CONVENTIONS

In respect of Parts II, III and IV of this Agreement,Members shall comply with Articles 1 through 12,and Article 19, of the Paris Convention (1967).

Nothing in Parts I to IV of this Agreement shallderogate or detract from existing obligations thatMembers may have to each other under the ParisConvention, the Berne Convention, the RomeConvention and the Treaty on Intellectual Propertyin Respect of Integrated Circuits.


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Article 3

National Treatment

Each Member shall accord to the nationals of otherMembers treatment no less favorable than that itaccords to its own nationals with regard to the

protection of intellectual property, subject to theexceptions already provided in, respectively, the ParisConvention (1967), the Berne Convention (1971), theRome Convention or the Treaty on Intellectual Propertyin Respect of Integrated Circuits.

Members may avail themselves of the exceptionspermitted under paragraph 1 in relation to judicial andadministrative procedures.


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With regard to the protection of intellectual property,any advantage, favour, privilege or immunity grantedby a Member to the nationals of any other countryshall be accorded immediately and unconditionally tothe nationals of all other Members

Exempted from this obligation are any advantage,privilege or immunity accorded by a Member: 1.deriving from international agreements on lawenforcement of a general nature and not particularly

confined to the protection of intellectual property, 2.granted in accordance with the provisions of the BerneConvention (1971) or the Rome Convention 3. therights of performers, producers of phonograms andbroadcasting organizations not provided under this

Agreement;

ARTICLE 4MOST-FAVOURED-NATION TREATMENT


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ARTICLE 5MULTILATERAL AGREEMENTS ON ACQUISITION OR

MAINTENANCE OF PROTECTION

The obligations under Articles 3 and 4 i.e. Nationaltreatment and Most Favored Nation Treatment donot apply to procedures provided in multilateralagreements concluded under the auspices of WIPOrelating to the acquisition or maintenance ofintellectual property rights.


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ARTICLE 6EXHAUSTION

Under this article for the purposes of disputesettlement under this Agreement, subject to the

provisions of Articles 3 and 4 i.e. NationalTreatment and MFN Treatment nothing in thisAgreement shall be used to address the issue ofthe exhaustion of intellectual property rights.


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ARTICLE 7OBJECTIVES

The protection and enforcement of intellectualproperty rights should contribute to thepromotion of technological innovation and tothe transfer and dissemination of technology,to the mutual advantage of producers andusers of technological knowledge and in amanner conducive to social and economicwelfare, and to a balance of rights andobligations.


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ARTICLE 8PRINCIPLES

Members may, in formulating or amending theirlaws and regulations, adopt measures necessaryto protect public health and nutrition, and topromote the public interest in sectors of vitalimportance to their socio-economic andtechnological development.

Appropriate measures may be needed toprevent the abuse of intellectual property rightsby right holders or the resort to practices whichunreasonably restrain trade or adversely affectthe international transfer of technology.


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STANDARDS CONCERNING THEAVAILABILITY, SCOPE

AND USE OF INTELLECTUAL PROPERTY RIGHTS


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SECTION 1: COPYRIGHT AND RELATED RIGHTS

Article 10Computer Programs and Compilations of Data1. Computer programs, whether in source or object code, shallbe protected as literary works under the Berne Convention(1971)

Article 11Rental RightsIn respect of at least computer programs and cinematographic

works, a Member shall provide authors and their successors in titlethe right to authorize or to prohibit the commercial rental to thepublic of originals or copies of their copyright works .


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SECTION 2: TRADEMARKS

ARTICLE 15 Protectable Subject Matter 1. Any sign, or any combination of signs, capable of

distinguishing the goods or services of one undertakingfrom those of other undertakings, shall be capable ofconstituting a trademark. Such signs, in particular wordsincluding personal names, letters, numerals, figurativeelements and combinations of colours as well as anycombination of such signs, shall be eligible forregistration as trademarks.Members may make registrability depend on use. However,actual use of a trademark shall not be a condition for filing anapplication for registration. An application shall not be refusedsolely on the ground that intended use has not taken placebefore the expiry of a period of three years from the date ofapplication.


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Article 22Protection of Geographical Indications 1. Geographical indications are, for the purposes of this

Agreement, indications which identify a good as originating inthe territory of a Member, or a region or locality in that territory,where a given quality, reputation or other characteristic of thegood is essentially attributable to its geographical origin.

2. In respect of geographical indications, Members shallprovide the legal means for interested parties to prevent:

(a) the use of any means in the designation or presentation ofa good that indicates or suggests that the good in questionoriginates in a geographical area other than the true place oforigin in a manner which misleads the public as to thegeographical origin of the good;

(b) any use which constitutes an act of unfair competitionwithin the meaning of Article 10 bis of the Paris Convention(1967).

SECTION 3: GEOGRAPHICALINDICATIONS


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Article 25 Requirements for Protection

1. Members shall provide for the protection of independently createdindustrial designs that are new or original. Members may provide thatdesigns are not new or original if they do not significantly differ fromknown designs or combinations of known design features. Membersmay provide that such protection shall not extend to designs dictatedessentially by technical or functional considerations.

2. Each Member shall ensure that requirements for securing protectionfor textile designs, in particular in regard to any cost, examination orpublication, do not unreasonably impair the opportunity to seek andobtain such protection. Members shall be free to meet this obligationthrough industrial design law or through copyright law.

SECTION 4: INDUSTRIAL DESIGNS


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SECTION 5: PATENTS

Article 27Patentable Subject Matter

patents shall be available for any inventions, whether productsor processes, in all fields of technology, provided that they are

new, involve an inventive step and are capable of industrialapplication.

patents shall be available and patent rights enjoyable without

discrimination as to the place of invention, the field of

technology and whether products are imported or locallyproduced.


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SECTION 6: LAYOUT-DESIGNS(TOPOGRAPHIES) OF INTEGRATED CIRCUITS

Article 35 - Relation to the IPIC Treaty Members agree to provide protection to the layout-designs

(topographies) of integrated circuits (referred to in thisAgreement as "layout-designs") in accordance with Articles 2through 7 (other than paragraph 3 of Article 6), Article 12 andparagraph 3 of Article 16 of the Treaty on Intellectual Propertyin Respect of Integrated Circuits

Article 36

Scope of the Protection

Subject to the provisions of paragraph 1 of Article 37,Members shall consider unlawful the following acts if

performed without the authorization of the right holder:9importing, selling, or otherwise distributing for commercialpurposes a protected layout-design, an integrated circuit inwhich a protected layout-design is incorporated, or an articleincorporating such an integrated circuit only in so far as itcontinues to contain an unlawfully reproduced layout-design.


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SECTION 7: PROTECTION OF UNDISCLOSEDINFORMATION

1. In the course of ensuring effective protection against unfair competition asprovided in

Article 10 bis of the Paris Convention (1967), Members shall protect undisclosedinformation in accordance with paragraph 2 and data submitted togovernments or governmental agencies in accordance with paragraph 3.

2. Natural and legal persons shall have the possibility of preventing information

lawfully within their control from being disclosed to, acquired by, or used by others without

their consent in a manner contrary to honest commercial practices10 so longas such information:

(a) is secret in the sense that it is not, as a body or in the precise configurationand assembly of its components, generally known among or readily accessible

to persons within the circles that normally deal with the kind of information inquestion;

(b) has commercial value because it is secret; and

(c) has been subject to reasonable steps under the circumstances, by theperson lawfully in control of the information, to keep it secret .


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SECTION 8: CONTROL OF ANTI-COMPETITIVEPRACTICES IN CONTRACTUAL LICENCES

Article 401. Members agree that some licensing practices or conditions

pertaining to intellectual property rights which restraincompetition may have adverse effects on trade and mayimpede the transfer and dissemination of technology.

2. Nothing in this Agreement shall prevent Members from specifyingin their legislation licensing practices or conditions that may inparticular cases constitute an abuse of intellectual property rightshaving an adverse effect on competition in the relevant market.As provided above, a Member may adopt, consistently with theother provisions of this Agreement, appropriate measures toprevent or control such practices, which may include forexample exclusive grant back conditions, conditions

preventing challenges to validity and coercive packagelicensing, in the light of the relevant laws and regulations of thatMember.


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INDIA AND TRIPS AGREEMENT


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INDIA AND TRIPS AGREEMENT

As per the Uruguay Round, Government of India iscommitted to implement final act of GATTNegotiations from 1 st January 2005.

But India preferred to keep Intellectual Property Rightout of purview of WTO because of its concern that itmay be harmful for its domestic industries likechemicals, pharmaceuticals etc

Though India had to agree and implement them inform of TRIPS at the end of negotiations.

C A G S Q


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CHANGES REQUIRED ININDIAN PATENT ACT

The right of importation and the prohibition ofdiscrimination between local production andimportation,

Broadening patentable subject-matter to includemicro-organisms,

Limiting compulsory licensing to comply with theconditions set forth in Article 31,

Increasing the term of protection to twenty yearsuniformly for all subject matters,

Allowing product patents, Shifting the burden of proof in matters of process -

patent infringement proceedings.

TIMELINE OF INDIAS


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TIMELINE OF INDIASACCEPTANCE TO TRIPS

2nd July 1996 - US calls for a consultation with India under article4 on settlement of Intellectual property dispute.

20 th Nov 1996 Panel setup considering the violation of TRIPSobligation by India.

Sept 1997 Panel rules out that India has failed to comply withTRIPS obligations by stating that article 70 is read incorrectly byIndia and comply immediately to the article.

Appellate Body recommended that DSB should request India tochange Indian Patent Act by April 1999.

23 rd Dec 2003 Amendment Patent Bill Fully complied to TRIPSwas passed and became effective on 1 st Jan 2005


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STAKEHOLDERSOPINIONPharmaceutical substances and specially the drug chemicalentity should be specifically mentioned in the articles

Inventions which are not patentable should be clearly providedin an exhaustive list.

Patentability of all life forms and microorganism should beavoided whereas a specific technical terms must be defined tomaximum extent to avoid ambiguity.

With considerable development in exploitation of Indias richbiodiversity and continuous applications of patents, it will bebeneficial for the country to align it with the TRIPS agreement at

international level.Influence of big powers on WTO and its agreements can havea serious effect on many developing economies and theirprinciples specifically in TRIPS.

FEATURES OF


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FEATURES OFPATENT (AMENDED) BILL 2003

Extension of product patents to all sectors of Indian economy.

Provisions to safeguard Exclusive Marketing Rights(EMR) for theones already granted.

Provisions of granting compulsory license exclusively for thepurpose of exporting drugs to countries without the capacity orwith insufficient capacity to manufacture them themselves.

Provisions to change the procedure of processing of patentapplication to be more user friendly.

Introduction of a tiered mechanism for representation againstpatent applications and also for oppositions and revocations ofPatents.


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DISPUTE SETTLEMENT CASE

FOR TRIPS IN WTO


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DISPUTE SETTLEMENT CASE

Measure at Issue

Measure at issue: EC Regulation related to theprotection of geographical indications andtrademarks

Product at issue: Agricultural products andfoodstuffs affected by the EC Regulation.

Complainant: United States

Respondent: European Communities Third Parties: Argentina; Australia; Brazil; Canada;

China; Chinese Taipei; Colombia; Guatemala;India; Mexico; New Zealand; Turkey


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CONTINUED

Agreements cited:(as cited in request for consultations) GATT1994: Art. I, III:4Intellectual Property (TRIPS): Art. 1.1, 2, 2.1, 3,3.1, 4, 16, 16.1, 20, 22, 22.1, 22.2, 24, 24.5, 41.1,41.2, 41.4, 42, 44.1, 63, 63.1, 63.3, 65, 65.1

Request for Consultations received:1 June 19991 June 1999

Panel Report circulated: 15 March 2005


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SUMMARY

Complaint by the United States

1. Lack of protection of trademarks andgeographical indications (GIs) foragricultural products and foodstuffs in theEC.

2. EC Regulation 2081/92, as amended, doesnot provide national treatment with respectto geographical indications .It limits the GIs

that the EC will protect and limits the accessof nationals of other Members to the EC GIprocedures and protections provided underthe Regulation


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PANEL AND APPELLATE BODY


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PANEL AND APPELLATE BODYFINDINGS

Violated the national treatment obligations underTRIPS Art. 3.1 and GATT Art.III:4 by according lessfavorable treatment to non-EC nationals andproducts, than to EC nationals and products.

Application and objection procedures: The Panelfound that the Regulation's procedures requiringnon-EC nationals, or persons resident orestablished in non-EC countries, to file anapplication or objection in the EuropeanCommunities through their own government (butnot directly with EC member states)

Providing an "extra hurdle" to applicants for GIs inthird Countries and their products, and that theGATT violation was not justified by Art. XX(d)

IMPLEMENTATION OF


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IMPLEMENTATION OFADOPTED REPORTS

The European Communities stated its intentionto implement the DSBs recommendationsand indicated that it would need areasonable period of time to do so.

The reasonable period of time forimplementation shall be 11 months and 2weeks

The EC fully implemented the DSBsrecommendations and rulings by adopting anew regulation which entered into force on 31March 2006.


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