The Agreement on Trade related Aspects of Intellectual Property Rights of the WTO is commonly known as the TRIPS Agreement or simply TRIPS. TRIPS is one of the main agreements comprising the World Trade Organisation (WTO) Agreement. This Agreement was negotiated as part of the eighth round of multilateral trade negotiations in the period 1986-94 under General Agreement on Tariffs and Trade (GATT) commonly referred to as the Uruguay Round extending from 1986 to 1994. It appears as Annex 1 C of the Marrakesh Agreement which is the name for the main WTO Agreement. The Uruguay Round introduced intellectual property rights into the multilateral trading system for the first time through a set of comprehensive disciplines. The TRIPS Agreement is part of the “single undertaking” resulting from the Uruguay Round negotiations. This implies that the TRIPS Agreement applies to all WTO members, mandatorily. It also means that the provisions of the agreement are subject to WTO dispute settlement mechanism which is contained in the Dispute Settlement Understanding (the “Understanding on Rules and Procedures Governing the Settlement of Disputes”). The TRIPS Agreement is one of the most important agreements of the WTO.
The three important features of the Agreement are:
In respect of each of the areas of IP covered by the Agreement, each of the member nations is obliged to provide a minimum set of standards for protecting the respective IPR. Under each of the areas of IP covered by the Agreement, the main elements of protection are defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection.
Each member nation is obliged to provide domestic procedures and remedies with respect to protection of IPR. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. The Agreement also lays down certain other provisions on civil and administrative procedures and remedies, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.
- Dispute Settlement
Under the Agreement disputes between WTO member nations regarding the respect of the TRIPS obligations are subject to the WTO’s dispute settlement procedures.
STRUCTURE OF THE TRIPS AGREEMENT
The three important features of the Agreement, i.e. standards, enforcement and dispute settlement are covered in seven parts i.e. the Agreement consists of seven parts. Part I deals with the general provisions and basic principles. Part II describes the standards concerning the availability, scope and use of IPR with respect to different types of IP. Part III describes the IPR enforcement obligations of member nations, and Part IV addresses the provisions for acquiring and maintaining IPR. Part V is directed specifically to dispute settlement under the Agreement. Part VI concerns transitional arrangements, and the Part VII concerns various institutional arrangements.
TRIPS AGREEMENT AND INDIA
India became a party to the TRIPS Agreement in April 1995. The Patent Act of 1970 was in contravention with the Article 27 of the Agreement. Hence India needed to take some measures to make its IPR laws compliant with the Agreement. The Agreement provided a three stage framework for developing countries like India which did not allow product patents in the areas of pharmaceuticals and agricultural chemicals before the Agreement came into force. These three stages included:
Introduction of Mail-Box facility from 1st January, 1995 for product patent applications in the field of pharmaceuticals and agricultural chemicals. These Mail-Box applications were not examined till the end of 2004. But Exclusive Marketing Rights (EMR) could be granted for the Mail-Box applications for which a patent had been granted in at least one member nations and the application was not rejected in the member nation where IPpro Services (India) P. Ltd. 16 the patent protect was sought by the applicant for the reason of invention being not patentable.
Compliance with the other obligations of the Agreement such as, rights of patentee, term of protection, compulsory licensing, etc. from 1st January, 2000.
Full implementation of product patents in all technological domains including pharmaceuticals and agricultural chemicals with effect from 1st January, 2005. Also, all Mail-Box applications were to be taken for examination from 1st January, 2005. Thus the Agreement came into force in India from 1st January, 2005.
The Agreement changed the face of the IP regime in the world. Many developing countries, including India, which had weaker IPR systems (for example, patents) had to extensively revise their patent laws, or where there were no IPR regimes (the most important examples being plant variety protection, layout designs and geographical indications) had to put in place new IPR systems. The implications of the Agreement have their own pros and cons. On the positive side, with the revision of patent laws, a stronger patent protection system came into existence which is of international standards, because of which the foreign investors were encouraged to invest in India. It may be expected that while domestic investment may not respond to a stronger patent regime in a big way in either the short or long term, Foreign Direct Investment (FDI) might. Further, the research and development expenditures of the domestic players tremendously increased in post Agreement period as compared to the preAgreement period. The other positive implication of a technological nature is the availability of better products which might not have been available with weaker IPR protection. However, the prices of these better and patented products may not be affordable for majority of population. Domestic private sector investment and foreign investment in the seeds sector has risen. The post Agreement environment has encouraged domestic private sector IPpro Services (India) P. Ltd. 17 and foreign firms to invest in research and development for the development of better seeds. Some of the geographical indications belonging to India which are of importance for domestic industry have got protection and have encouraged investment in these sectors, for example, Dargiling Tea. On the negative side, the most immediate impact of post Agreement may be seen on prices of drugs. The new and required drugs will have product patent protection unlike the earlier scenario and so the prices might escalate.
IPRs covered under TRIPS
The IPRs covered by the TRIPS Agreement are:
• Copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations)
• Trademarks, including service marks
• Geographical indications including appellations of origin
• Industrial designs
• Patents including the protection of new varieties of plants
• Layout-designs (topographies) of integrated circuits
• Undisclosed information, including trade secrets and test data.