TRIPS AND ITS

BY Ankit PuriNIPER(S.A.S.

Nagar)

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members

Location: Geneva, SwitzerlandEstablished: 1 January 1995Created by: Uruguay Round negotiations (1986-94)   Membership: 149 countries (11.12.2005)Budget: 169m Swiss francs, 2005Secretariat staff: ~600Head: Director-General Roberto Azevêdo

It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.

General principles

Freedom to determine the appropriate method of implementing the Agreement (Art. 1.1)

National treatment (Art. 3)

Most-favoured nation treatment (MFN) (Art. 4, 5)

Exhaustion of rights (Art. 6); see (WT/MIN(01)/DEC/2)

Functions

• Administering WTO trade agreements

• Forum for trade negotiations

• Handling trade disputes

• Monitoring national trade policies

• Technical assistance and training for developing countries

• Cooperation with other international organizations

The requirements of TRIPS

Copyright must be granted automatically, and not based upon any "formality," such as registrations, as specified in theBerne Convention (Art. 9)

Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection

Patents must be granted for "inventions" in all "fields of technology" provided they meet all other patentability requirements (although exceptions for certain public interests are allowed (Art. 27.2 and 27.3)[5]

 and must be enforceable for at least 20 years (Art 33)

Trade secrets a trade secret is information that you do not want the competition to know about

For example, secrecy allowed a region of China to profit for centuries from clever harvesting of the silkworm’s thread, and it gave a family from Armenia a 400-year lead in producing the best orchestral cymbals

Trade secrecy is a legal regime that protects relationships of trust

Trade secret law, like other forms of IP, is governed by national legal systems. However, international standards for protecting secrets (called “undisclosed information”) were established as part of the TRIPS Agreement in 1995

 Article 39 of the agreement provides that member states shall protect “undisclosed information” against unauthorized use “in a manner contrary to honest commercial practices” (this includes breach of contract, breach of confidence and unfair competition)

Controversial Cases Involving Herbal drugs Turmeric patent In 1995, two researchers at the University of Mississippi Medical Centre4 were granted a US patent on the ‘use of turmeric in wound healing

The Indian Council of Scientific and Industrial Research (‘CSIR’) requested the US Patent and Trademark Office (‘USPTO’) to re-examine the patent

The argument made by CSIR was that turmeric has been used in India for thousands of years for healing wounds and rashes and, therefore, its medicinal use was not novel

CSIR’s claim was supported by documentary evidence that included an ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association

The patent was finally revoked by the USPTO on 14 August 1997 on grounds of established prior art

Neem patent In 1994, the European Patent Office (‘EPO’) granted a process patent8 to the US Corporation WR Grace and the US Department of Agriculture (‘USDA’) over a method for controlling fungi on plants by the aid of ‘a hydrophobic extract of Neem oil

This patent was challenged by a group of non-governmental organisations (‘NGOs’) in India and the European Union in 1995

They submitted evidence to the effect that the fungicidal effects of Neem seed extracts were known to and used by Indian agriculturists for centuries and the claimed invention was, therefore, void of novelty or inventive step

After reviewing the evidence submitted by the NGOs, the EPO panel accepted that Neem had been used in India for many years and the patented process for use of Neem extracts in fungicidal treatment did not represent an inventive step and the patent was revoked by the EPO in 2000, six years after its grant

Ayahuasca patent

For generations, shamans of the indigenous tribes living in the Amazon Basin have processed the bark of the Ayahuasca tree (‘Banisteriopsis caapi or B.caapi’) to produce a ceremonial drink known as ‘ayahuasca

The shamans use ayahuasca (which means ‘vine of the soul’) in religious and healing ceremonies to diagnose and treat illnesses and divine the future

An American, Loren Miller, obtained a patent from the USPTO in June 1986, which granted him monopoly rights over an alleged variety of B.caapi that he called ‘Da Vine The Co-ordinating Body of Indigenous Organisations of the Amazon Basin and the Centre for International Environment Law (‘CIEL’) subsequently filed a re-examination request on the Da Vine patent

Extensive and relatively recent ‘prior art’ was presented by CIEL, and in November 1999, the USPTO rejected the patent agreeing that the patent should never have been issued

Hoodia cactus patent

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