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Challenges in Implementing TRIPS Obligations: Legal, Technical, and Political Perspectives

This presentation highlights difficulties faced by WTO Members in implementing TRIPS obligations post the transitional period, including legal ambiguities, technical challenges in modifying laws, and political disputes over provisions. It discusses inconsistencies in national provisions related to patents, designs, and test data protection. For more information or questions, contact nuno.carvalho@wipo.int.

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Challenges in Implementing TRIPS Obligations: Legal, Technical, and Political Perspectives

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  1. WIPO NATIONAL SEMINAR ON INDUSTRIAL PROPERTY AND ON THE IMPLEMENTATION OF TRIPS OBLIGATIONS IN THE PURSUANCE OF NATIONAL PUBLIC POLICIES AND GOALSDamascus, May 28 and 29, 2008 Hindsight on the Implementation of the TRIPS Agreement WIPO Secretariat

  2. 1. Difficulties in the implementation of TRIPS obligations

  3. One might expect that, once the transitional periods had expired, WTO Members would have implemented all their obligations under the TRIPS Agreement. But that did not happen, because of: Legal difficulties Technical difficulties Political difficulties 3

  4. Legal difficulties: some new legal concepts introduced by the TRIPS Agreement were not known by a number of WTO Members (for example, geographical indications, layout-designs, test data, plant variety protection, and many concepts concerning enforcement, such as the reversal of the burden of proof, provisional measures, border measures in the field of IP)

  5. Legal difficulties: Other legal difficulties arose from the ambiguities of TRIPS language (for example, grounds of revocation of patents are open-ended; uncertainty about the meaning of the expression “unfair commercial use” has been misunderstood as a permission not to protect test data other than against disclosure) 5

  6. Technical difficulties: the TRIPS Agreement imposed changes on a vast array of laws (civil laws, commercial laws, administrative laws, tax laws, criminal laws, sanitary laws, procedure laws) and many countries had problems in modifying all them in time

  7. Technical difficulties: The notifications of amended laws to the TRIPS Council reveal that a large number of developing countries missed by large the general deadline of 2000; today, 8 years later, a number of them have not yet implemented all or some of TRIPS obligations 7

  8. Political difficulties: the TRIPS Agreement contains a number of provisions that some WTO Members refuse to accept; for example: - trademark owners should be allowed to assign them in gross; - the nature of goods and services should not form an obstacle to the registration [and protection] of trademarks; - additional protection to be accorded to geographical indications for wines and spirits

  9. Political difficulties: - foreign patent owners should be allowed to exploit their inventions through importation; - exclusions from patentability on ordre public or moral grounds should be established with the single objective of preventing the commercial exploitation of some inventions 9

  10. 2. Some examples of national provisions the TRIPS-consistency of which may be challenged

  11. In the area of patents: The most common TRIPS-inconsistency – discrimination as to the field of technology: (i) Second uses only cover pharmaceutical products (ii) Extensions of patent terms are available mostly for pharmaceutical and agro-chemical inventions (iii) Unreasonable delays in granting patents in a form that curtails the rights of inventors

  12. Many countries maintain a local exploitation requirement In some countries compulsory licenses may be granted without prior consultation to the owner (ex officio licenses) in circumstances that are not extremely urgent or are not for the purpose of public non-commercial use Another very frequent inconsistency: the patentability of inventions is excluded simply because they offend the ordre public or are inmoral

  13. In the area of designs: Most countries fail to provide for a special procedure for registering industrial designs for textiles.

  14. In the area of test data: This is an area where generalized inconsistency can be found. Many WTO Members have failed to understand the real meaning of the expression “protection against unfair commercial use.” It is widely believed that if a government does not disclose the data to a pioneer’s competitor, test data are being protected, even if the government uses them (or rely on them) to register an equivalent generic product (that is, without requesting the competitor to bring legitimately obtained data).

  15. Thank you! If you have questions concerning this presentations do not hesitate to send them to nuno.carvalho@wipo.int

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