TRIPS

The WTO’s TRIPS Agreement (Trade related intellectual Property Rights) is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. In doing so, it strikes a balance between the long term benefits and possible short term costs to society. Society benefits in the long term when intellectual property protection encourages creation and invention, especially when the period of protection expires and the creations and inventions enter the public domain. Governments are allowed to reduce any short term costs through various exceptions, for example to tackle public health problems. And, when there are trade disputes over intellectual property rights, the WTO’s dispute settlement system is now available.

The agreement covers five broad issues:

How basic principles of the trading system and other international intellectual property agreements should be applied

How to give adequate protection to intellectual property rights

How countries should enforce those rights adequately in their own territories

How to settle disputes on intellectual property between members of the WTO

Special transitional arrangements during the period when the new system is being introduced.

· Entailed significant changes for the protection of pharmaceutical products and processes

· Made product patent protection binding on all member countries

· Strengthened process patents.

· Narrowly defined the conditions for establishing exceptions to patent rights

· Limited the possibility of applying special modalities of compulsory licences to pharmaceuticals

India and IPRs

· India has enacted several laws to protect IPR as:

o Copyright Act

o Trademark Act

o Designs Act

o Patent Act, 1970

o Geographical Indications Act

India and TRIPS

· India has met its entire TRIPS obligations in various stages starting from providing mailbox applications in 1999 with retrospective effect

· Amendment to the Patent Act in 2003

Ø This amendment brought the Indian Patent Act more or less on a par with the developed countries by providing a 20 year patent term

Ø Safeguarded national interest by remodelling compulsory licence provisions by introducing Bolar and Import Provisions

· 3rd amendment to Patents act in 2005 provided product patenting in pharmaceuticals, food, and chemicals, rationalising and reducing timelines for processing of patent applications and doing away with Exclusive Marketing Rights

Issues & Resolutions

· Effect on India’s pharmaceutical industry

Ø Resolution: the industry is taking steps to cope with the challenge. It is increasing its investment in R&D. Moving from imitative research to innovative research

· Effect on other knowledge based industries in India, such as the IT industry, biotechnology, and microelectronics

· Effect on limiting monopolies

Ø Resolution: there is voluntary licensing and compulsory licensing. For important drugs the government can resort to compulsory licensing.

· The grant of patents on non-original innovations (particularly those linked to traditional medicines) which are based on what is already a part of the traditional knowledge of the developing world is a cause of concern

Ø CSIR successfully challenged the US Patent on the wound healing properties of turmeric. Similarly patent on Neem was quashed.

Ø These issues need to be addressed jointly by the developing and the developed worlds

Ø CSIR has created a Traditional Knowledge Digital Library (TKDL)

Way Forward

· India should nurture a strong innovation base through a  balanced system of recognition and rewards

· India will have to invest liberally to enhance the skills and knowledge base of scientists and on understanding, interpreting and analysing the techno-legal business information contained in  IP documents and in drafting of IP documents.

We must properly protect our inventions

TRIMS

This Agreement, negotiated during the Uruguay Round, applies only to measures that affect trade in goods. Recognizing that certain investment measures can have trade-restrictive and distorting effects, it states that no Member shall apply a measure that is prohibited by the provisions of GATT Article III (national treatment) or Article XI (quantitative restrictions). Examples of inconsistent measures, as spelled out in the Annex's Illustrative List, include local content or trade balancing requirements. The Agreement contains transitional arrangements allowing Members to maintain notified TRIMs for a limited time following the entry into force of the WTO (two years in the case of developed country Members, five years for developing country Members, and seven years for least-developed country Members). The Agreement also establishes a Committee on TRIMs to monitor the operation and implementation of these commitments.

The Agreement requires all WTO Members to notify the TRIMs that are inconsistent with the provisions of the Agreement, and to eliminate them after the expiry of the transition period provided in the Agreement. Transition periods of two years in the case of developed countries, five years in the case of developing countries and seven years in the case of LDCs, from the date of entry into force of the Agreement (i.e. 1stJanuary 1995) are provided in the Agreement.

The Agreement allows developing countries to deviate temporarily from its provisions on balance of payments (BOP) grounds

TRIMS has been in force from 1995. Due to pressure from Developing countries investment was dropped from the Doha negotiations.