Property Rights (Trips) By B. Raj. Bhandari, Former Principal Adviser, ITC , Unctad / WTO

1. ARGEEMENT ON TRADE RELATED INTELLECTUAL Property Rights (Trips)By B. Raj. Bhandari, Former Principal Adviser, ITC, Unctad/ WTO

2. 1. What Constitutes Intellectual Property? A: Copy –Rights – Artistic, Literary work, Computer software Etc. B: Related Rights – Performers, Phonogram Producers, Broadcasters etc. C: Industrial Properly – Trade marks • Geographical; Indicators • Industrial Designs • Patents • Plant varieties • Trade Secrets Etc

3. 2. Main Features of Trips Agreement. • Basic Principle – National Treatment and MFN. • Enforcement • Dispute settlement • Transitional Arrangements • Review and Implementation

4. 3. National Treatment. A.) WTO Members to Provide Nationals of other Members no less favorable Treatment for Protection. B.) Most Favored Treatment Protection of intellectual Property, any Advantage, Favour, Privilege or immunity Granted by a member to the nationals of any other country shall be accorded immediately and unconditionally to nationals of other members. • 4. Patents - Shall be available for any invention , weather Product or Process, in any field of technology, provided these conform to the patentable criteria and subject to certain exclusivs

5. National Treatment – Article 3 • Each Member shall accord to the nationals of other member’s treatment no less favorable then that it accords to its own nationals with regard to the Protection of intellectual Property ( 1) For the purposes of Articles 3 & 4 “protection” shall include matters affecting the availability. Acquisition, scope maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in this agreement.

6. Most- favoured –nation treatment- Article -4 • With regard to the protection of intellectual property, any advantage, favor, privilege or immunity granted by a member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other members – subject to certain exceptions. TRIPS OBLIGATIONS ON PATENTS • Patents shall be available for any invention, whether product or process, in all fields of technology, provided that they meet the criteria for patentability and subject to certain exclusions. • What are these criteria?

7. Patentability There are three criteria to qualify for a patent ( Article 27.1): • an invention has to be new (“novelty”) • it must be an “inventive step” ( it must not be obvious) • it must have “ industrial applicability “ (i.e. it must be useful) A complete and sufficient disclosure of the invention is required.

8. Exclusions from patent protection • Governments can refuse to grant a patent for an eligible invention for three reasons. • If prevention of commercial of commercial exploitation is necessary to protect public order or morality, • Including to protect human animal or plant life or health, • Or to avoid serious prejudice to the environment • diagnostic, therapeutic and surgical methods • Plants and animals(other then micro-organisms), or essentially biological processes for the production of plants and animals.

9. PROVISIONS OF ARTICLE 27.3 (B) • Members may exclude from patentability : -Plants and animals -Essentially biological processes for their production • Members shall not exclude: -Micro organisms -Non biological and microbiological processes • Members shall protect plant varieties -By patents -By an effective sui generis system -By any combination there of

10. Patent rights and limited exceptions • What are the patent owner’s rights? • To prevent others from making using offering for sale, selling or importing the patented product. • To prevent others from using the patented process or doing any of the above acts with respect to the product directly obtained by that process • Exceptions to patent rights may be provided (such as prior use private non-commercial use, research, education) if these are : • Limited • Do not unreasonably conflict with a normal exploitation • Do not unreasonably prejudice the legitimate interests of patent owner, taking into account the legitimate interests of third parties “ Regulatory exemption”( or the so called “ Bolar exemption) (WTO panel EU vs. Canada)

11. TERM OF PROTECTION • At least 20 year from the date the patent application was filed ( Article 33) • Maintenance fees may be charged • Does not equal period of market exclusivity • Extension of term of protection not required, for e.g. in case of regulatory delays in grant of marketing approval. • Revocation of patents ( Article 32 and Article 5A of Paris convention)

12. COMPULSORY LICENCES AND GOMERNMENT USE • Article 31(under the patents section) covers both compulsory licenses and use by government see also art.44.2 • No restriction on grounds(except in the case of semi-conductor technology :31-c) but subject to conditions-reiterated in Doha • Special exceptions for public non-commercial use(Article31-b) and for use as remedy for anti-competitive practices( Article 31-b,f,g,h,k.)

13. Exhaustion of IPRs • First sale doctrine • National vs. International exhaustion • Regional exhaustion • TRIPS Article 6 • Special case of pharmaceutical products and Doha clarification.

14. UNDISCLOSED INFORMATION-TEST DATA • When requiring submission of undisclosed test or other data for marketing approval of Parma of agro chemical products which utilize new chemical entities • Where origination of data involves a considerable effort. • Shall protect such data against unfair commercial use. • In addition to protecting against disclosure.