These provide the legal basis for wto members to grant special compulsory licences exclusively for the production and export of. Trips agreement and amendment of patents act in india article pdf available in economic and political weekly august 2002 with 696 reads how we measure reads. Convention and the treaty on intellectual property in respect of. A detailed anatomy abstract article 7 principles and article 8 objectives are prominent within the text of the wto trips agreement, yet have figured sparingly in the reasoning of the dispute settlement body dsb. Wto analytical index trips agreement article 31bis. Focusing on the developments from the august 2003 decision to the recently proposed article 31bis of the trips agreement, this article further illustrates the danger of. The effects of the trips agreement on international. The obligations of an exporting member under article 31f shall not apply.
Trips is one of the main agreements comprising the world trade organisation wto agreement. The obligations of an exporting member under article 31f shall not apply with respect to the grant by it of a compulsory licence to the extent necessary for the. If article 31 f is not deleted, article 30 of the trips agreement regarding exceptions to patent rights must be interpreted so as to permit making and export of pharmaceutical products and other public health related inventions to meet public health needs. Trips sets minimum standards for national laws on, patents, trademarks and other forms of intellectual property rights. In this article the authors consider the proper interpretation of the trips agreement as it applies to plain packaging regulations using. Trips was negotiated during the uruguay round of the general agreement on tariffs and trade gatt in 19861994. The objectives and principles of the trips agreement. Up and not ratifying article 31bis case western reserve. Trips compulsory licensing flexibility the key trips flexibility, as highlighted in the doha declara tion on trips and public health the doha declaration, 18 is the right of wto member states to include in their patent leg islation a provision for use without authorization of the patent holder, as provided in article 31.
See more sandra bartelt, compulsory licences pursuant to trips article 31 in the light of the doha declaration on the trips agreement and public health. The trips agreement allows the use of compulsory licences. The objectives and principles of the trips agreement peter k. Compulsory licensing enables a competent government authority to license the use of a patented invention to a third party or government agency without the consent of the patentholder. Recent amendments to the trips agreement establishment. The operation of the gatt over the years resulted in lowering of tariffs in general in international trade. Trade related aspects of intellectual property rights trips. Use of flexibilities in trips by developing countries. The precursor to the wto was the general agreement on tariffs and trade gatt which sought to address issues related to international trade in goods. Compulsory licensing means court or competent authority. The trips agreement specifically mentions that software and databases are protected by, subject to originality requirement art 10. The key operative provisions are articles 40 and 31, especially 31 k. Xiong, ping pharmaceutical patents in the trips agreement. Property rights agreement trips sets out the minimum standards for the protection of intellectual property, including patents for pharmaceuticals.
Compulsory licences pursuant to t rips article 31 in the light of the doha declaration on the t rips agreement. The world trade organization wto agreement on traderelated aspects of intellectual property rights trips 1 brought about very important changes in international standards relating to intellectual property rights. This agreement was negotiated as part of the eighth round of multilateral trade negotiations in. Where the law of a member allows for other use 7 of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government. Because of its farreaching implications, particularly with respect to developing countries, the agreement has. The amendment of the trips agreement added a new article 31 bis after article 31 and also added an annex to the trips agreement after article 73.
Using trips flexibilities to facilitate access to medicines. Ip and public health and environment policy for asian and pacific region. Solution to contentious issue of article 31 f of trips agreement. In order to describe the provisions of the trips agreement which relate to the standards of patent protection it is useful to recall some of its basic features. Specifically, article 31 b of the trips agreement allows for wto members to use the subject matter of patents without the patent holders authorization in times of national emergency. More specifically, member governments are given the authority to grant a license to a party willing to commercialize an invention protected under patent without the consent of the patent holder. Article 24 of the law based on article 31 of trips agreement provides that in the events where the patentee fails to exploit the patent or commercially. Below are official and nonofficial texts of the trips agreement. Article 31 f of the trips agreement shall be waived to the extent necessary to enable a pharmaceutical product produced or imported under a compulsory licence in that member to be exported to the markets of those other developing or leastdeveloped country parties to the regional trade agreement that share the health problem in question. Virendra s and udupa, n 2008 solution to contentious issue of article 31 f of trips agreement. Campaigns of unilateral economic encouragement under the generalized system of preferences and.
The need for revision revision ann marie effingham 0 0 j. Convention, a treaty is to be interpreted in good faith in. Article 31 of the agreement sets forth a number of conditions for the granting of compulsory licences. The preamble of the trips agreement was heavily negotiated during the uruguay round, and forms an important part of the context of its interpretation. Pdf solution to contentious issue of article 31f of. The traderelated aspects of intellectual property agreement trips is a multilateral 1 agreement administered by the world trade organisation wto that came into effect on 1 january 1995 2 the introduction of trips was a result of intense lobbying by the united states, supported by developed nations like the european union and japan. Pdf trips agreement and amendment of patents act in india. According to the wto, the amendment is composed of three parts. Trips agreement and access to drugs in developing countries. The new article 31 bis 1 states that the obligations of an exporting member under article 31 f shall not apply with respect to the grant by it of a compulsory licence to the extent. This commentary on the wto agreement on traderelated aspects of intellectual property rights trips provides a detailed textual analysis of trips a pivotal international agreement on intellectual property rights. It is an integral part of the agreement establishing the world trade organization, and therefore subject to the wto dispute settlement system. Berne convention for the protection of literary and artistic works paris act of july 24, 1971, as amended on september 28, 1979 berne convention for the protection of literary and artistic works of september 9, 1886, completed at paris on may 4, 1896, revised at berlin on november, 1908, completed at berne on march 20, 1914, revised at rome.
Solution to contentious issue of article 31f of trips. The objectives and principles of the wto trips agreement. Under article 31 of the trips agreement, the rights of patent holders can be circumvented in certain situations. Implementation gaps between theory and practice by.
Wto analytical index trips agreement article 31 practice. Trips further states that the conditions under which a compulsory license is granted should be regulated in accordance with the trips agreement article 31. Pdf on aug 1, 2008, m d janodia and others published solution to contentious issue of article 31 f of trips agreement find, read and cite all the research you need on researchgate. Compulsory licensing provisions under the trips agreement. Wto trips agreement and its implications for access to. While trips does offer safeguards to remedy negative effects of patent protection or patent abuse, in practice it is unclear whether and how countries can. This discrepancy is accentuated when considered in light of three key. The trips agreement was amended through the protocol of 6 december 2005 that entered into force on 23 january 2017. To remedy this problem, the trips agreement should be amended to delete article 31 f. The obligations of an exporting member under article 31f shall not apply with respect to the grant by it of a compulsory. Yu introduction the agreement on traderelated aspects of intellectual property rights trips agreement is one of the more controversial international intellectual property agreements that have entered into force. Berne convention for the protection of literary and.
Pdf on aug 1, 2008, m d janodia and others published solution to contentious issue of article 31f of trips agreement find, read and cite all the research. Emerging international rules on the commercialization of genetic resources. Its inclusion was the culmination of a program of intense lobbying by the united states, supported by the european union, japan and other developed nations. Email us to submit additional unofficial language translations. In addition, part i examines the recent trade dispute between south africa and the united states by. This waiver decision implements paragraph 6 of the doha decla ration on the trips agreement and public health wtmin01dec2. Subject to paragraph 4 of article 65, paragraph 8 of article 70 and paragraph 3 of this article, patents shall. It was adopted by the general council in the light of. Pdf solution to contentious issue of article 31f of trips agreement. Although article 31 of the trips agreement sets out the conditions govern. Trips, pharmaceutical patents and access to essential. Compulsory licences pursuant to trips article 31 in the.
The trips agreement does not strive for such an optimum. Trips agreement is one of the most important agreements of the wto. Candidate, 2016, seton hall university school of law. Trips agreement and doha declaration world health organization.
The development of appropriate national legislation is therefore crucial. Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology. The chapter offers a more comprehensive overview of the use of trips flexibilities than has previously been reported in. Trips agreement the agreement on trade related aspects of intellectual property rights of the wto is commonly known as the trips agreement or simply trips. Computer programs, whether in source or object code, shall be protected as literary works under the berne convention 1971.