Trade Related Intellectual Property (TRIPS) Agreement

Reading Assignment E74 - 104, especially E74, Section 5

E85, Section 8

E91, Part III

E92

Preamble: Members of TRIPs desiring:

- to reduce distortions and impediments to international trade

- to promote effective and adequate protection of intellectual property rights

- to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade,

recognizing

- the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;

- that intellectual property rights are private rights;

- the underlying public policy objectives of national systems for the protection of intellectual property, including development and technological objectives;

- the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;

and desiring

- to establish a mutually supportive relationship between the WTO and the World Intellectual Property Organization (WIPO)…….

 

W. Arnold, "International and Comparative Patent Law", FPLC, Concord N.H. USA 5/17 P1

The "Agreement Establishing the World Trade Organization" (WTO)

- was concluded at Marrakesh on April 15, 1994,

- entered into force on January 1, 1995.

- under the auspices of the General Agreement on Tariffs and Trade (GATT)

TRIPS binds all members of the WTO (Art. 11(2) of the WTO) containing far-reaching provision for intellectual property

TRIPS requires member nations to establish a minimum level of intellectual property rights in their national laws.

Failure to comply will expose member nations to the enforcement provision of WTO.

Trips is divided into seven parts and contains 73 articles.

Part I sets forth the general principles and objectives (e.g. compliance with the major international conventions (Art.2), national treatment (Art.3), most favored-nation treatment (Art.4).

Part II provides the minimum standards each country must provide for various forms of intellectual property.

Section 1: Copyright, Section 2: Trademarks, Section 3:Geographical Indications, Section 4: Industrial Designs, Section 5: Patents

Member countries must make patent protection available for any inventions, in all fields of technology, if they are new, involve an inventive step, and are capable of industrial application.

Member countries may exclude particular inventions from patentability only in a few narrowly defined cases.

W. Arnold, "International and Comparative Patent Law", FPLC, Concord N.H. USA 5/17 P2

Patents must include the right to exclude others from making, using, offering for sale, selling, or importing infringing products.

Use without authorization is allowed in certain limited circumstances.

The patent term must be at least 20 years from the filing of the application.

Section 8: Control of Anticompetitive Practices in Contractual Licenses.

Member countries may prohibit certain licensing practices that adversely affect competition (Art.40)

Part III establishes extensive procedures to ensure that intellectual property rights are enforced.

Part IV sets forth the requirements of the acquisition and maintenance of intellectual property rights and related inter partes procedures.

Part V integrates TRIPS into the dispute prevention and settlement mechanism of the WTO.

Part VI incorporates transitional arrangements regarding to entry into force of the WTO Agreement.

Developing and least-developed countries are given additional time to implement the Agreement.

Part VII covers the institutional arrangements regarding the monitoring of compliance with the Agreement.

January 1, 1996 112 countries had accepted the Marrakesh Agreement and were members of the World Trade Organization.

W. Arnold, "International and Comparative Patent Law", FPLC, Concord N.H. USA 5/17