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Trade-Related Aspects of Intellectual Property Rights

Trade-Related Aspects of Intellectual Property Rights (TRIPS) is arguably the most important and comprehensive international agreement on intellectual property rights. Member countries of the WTO are automatically bound by the agreement. The Agreement covers most forms of intellectual property including patents, copyright, trademarks, geographical indications, industrial designs, trade secrets, and exclusionary rights over new plant varieties.

Obligations under the TRIPS Agreement

The TRIPS agreement outlines several important trade related aspects of intellectual property. More specifically, it requires signatory countries to adhere to its criteria for intellectual property monopoly grants of limited duration, along with requiring adherence to the Paris Convention, Berne Convention and other WTO Conventions. The criteria are minimum standards for granting a monopoly over any type of IP, as well as duration limits, enforcement provisions and methods of IP dispute settlements.

When the TRIPS Agreement took effect on January 1, 1995, all developed countries were given twelve months from the date of signing the agreement to implement its provisions. Developing countries and transition economies (under certain conditions) were given five years, until 2000. Least developed countries (LDCs) were given 11 years, until 2006, to comply.  Some countries have indicated that a longer period should obtain.  For pharmaceutical patents in these LDCs, the term for compliance has been extended to 2016. There are currently 30 LDCs within the WTO organization bound by TRIPS and another 10 LDCs are waiting accession.

Some of the most important (and controversial) provisions in the TRIPS agreement concern patent protection. TRIPS signatories are obliged to make patents available for all inventions, whether products or processes, in all fields of technology without discrimination (Article 27.1). Interestingly, TRIPS does not define the term “invention”. The agreement states three exceptions that countries may rely on to exclude otherwise patentable subject matter. These include:

  • 1. inventions which are contrary to ordre public or morality, i.e. inventions which are dangerous to human, animal or plant life or health or seriously prejudicial to the environment. (Article 27.2)
  • 2. diagnostic, therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a)).
  • 3. plants and animals other than microorganisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. Any country excluding plant varieties from patent protection must provide an effective sui generis system of protection (Article 27.3 (b)).

The interpretation of this last clause has been extremely contentious. The term sui generis (Latin for ‘of its own gender/genus’) is not defined in the agreement, but it is generally believed that it enables member countries to fashion their own protection scheme for plants. Possible protection mechanisms include the Plant Breeder’s Rights system offered by UPOV Convention, plant patents or a licensing regime. More than one form of plant protection can be implemented in a given member country.

Controversy surrounding Article 27.3

One of the controversies of Article 27.3 focuses on the meaning of ‘sui generis‘ and exactly what is considered an ‘effective’ form of plant variety monopoly right. In part because of the difficulties with this provision, Article 27.3 was to be reviewed in 1999, four years after the entry into force of the agreement. The review has never been completed, and this Article remains a hot issue. To date, some 30 countries are calling for further discussion on Article 27.3, and some have proposed:

  1. rewriting the Article to exclude patents for any organisms or genetic material (although ostensibly countries could achieve this by defining these subject matters as “discoveries” and not “inventions”);
  2. defining in detail what an effective plant variety development right system is;
  3. extending exclusionary rights of some sort to traditional or indigenous knowledge; and
  4. making explicit linkages with obligations for the conservation and use of biodiversity, including mandatory disclosure of the source of genetic materials used in a patented invention, and creating obligations to record arrangements for access to genetic resources as evidence of prior informed consent.

It remains to be seen whether any of these proposals will be adopted.

Patentee Rights, Term of Protection and Enforcement Rights

The rights obtainable by patentees are clearly outlined in Article 28. The Article also provides that rights are conferred for products which are directly obtained by a patented process or method.

EXAMPLE: If a patent is issued for a novel method of manufacturing snow skis, the skis produced will also be protected by the patent.

The TRIPS agreement provides that inventions must be disclosed by publication (Article 29) and sets out a minimum term of 20 years for patent protection. The 20 year term is calculated from the filing date (Article 33). Although a patent term begins at filing, enforcement rights only ensue from the date of patent grant.

TRIPS also provides rules regarding domestic procedures and remedies for the enforcement of intellectual property rights. The rules are general principles applicable to all enforcement procedures, i.e. they contain provisions on civil and administrative procedures and appropriate remedies so that right holders, be they patentees, copyright owners or other intellectual property owners, can effectively enforce their rights.

Effects of TRIPS and the Resulting Controversies

One of the effects of the TRIPS agreement has been to tie trade and intellectual property together. Traditionally, developing countries have opposed the range of nontariff barriers, such as the protection of inventions, which they see as preventing them from trading competitively throughout the rest of the world. Controversy has arisen over perceptions of inconsistency between the TRIPS Agreement and other international agreements, such as the Convention on Biological Diversity. There have also been suggestions, for example, that patenting restricts the availability of the latest chemicals, pharmaceuticals and fertilizers, thereby necessitating the use of older, less-safe and more toxic products. There have been reports that intellectual property rights on plant varieties erode biological diversity, especially in agriculture. Some countries are also demanding that the existing intellectual property system should accommodate concepts traditionally outside of the scope of intellectual property, for example indigenous and traditional knowledge.

The examples above highlight some of the issues surrounding the TRIPS agreement which are the subject of much international debate.
For further discussion of the political implications surrounding these issues, see Genetically Engineered Food Alert Campaign’s website.

Some nine years after TRIPS was first implemented, its provisions are still in a state of review and alteration. For individual country positions on TRIPS see Grain’s TRIPS Review pages. Grain is an international non-governmental organisation which promotes the sustainable management and use of agricultural biodiversity based on people’s control over genetic resources and local knowledge.

Article 27 Patentable Subject Matter

3. Members may also exclude from patentability:

(b) plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

Article 28 Rights Conferred

1. A patent shall confer on its owner the following exclusive rights:

(a) where the subject matter of a patent is a product, to prevent third parties not having the owner’s consent from the acts of: making, using, offering for sale, selling, or importing for these purposes that product;
(b) where the subject matter of a patent is a process, to prevent third parties not having the owner’s consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.

2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.

 The information contained in this page was believed to be correct at the time it was collated. New patents and patent applications, altered status of patents, and case law may have resulted in changes in the landscape. Lens makes no warranty that it is correct or up to date at this time and accepts no liability for any use that might be made of it.

Updated on November 11, 2020
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