This article is written by Shyam Gupta of IPEM Group of Institute.
TRIPS
Trade Related Aspects of Intellectual Property Rights (TRIPS)
The 8th round of General Agreement on Trade in Service (GATS) which was commonly called Uruguay round is highly controversial, because there are some traditional issue which oppose the traditional issue that’s why the decision to support was unable to constitute.
In this modern world the percentage of innovative of technologies or Parma sector increasing vastly, the formation of vaccine are result of research and development, more the research and development will increase the innovations, but the huge amount was investment in R&D will form the right to earn from the same.
Intellectual Property Right
Intellectual property is an intangible form of property. The ‘Patent’ is a subset of intellectual property. By patenting a product there arises a statutory right by the state to the inventor of the invention to exclude others from making, using, or selling their invention for a limited period. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the most comprehensive multilateral agreement on intellectual property (IP). After the Amendment of the Patent Act, 2005 patents came to be granted not only for methods or processes but also for products.
The Role of the World Intellectual Property Organization (WIPO), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and The World Trade Organization (WTO) leading to shared value, a profound transformation, and new systems approach.
Types of intellectual properties
Copyrights and related rights
The Agreement states that copyright applicable to phrases, ideas, techniques, operating methods, or mathematical concepts. Literary, musical, dramatic, photographic, sculptural, architectural, choreography, graphic, motion picture, sound recording, multimedia work, computer programs, and other works are all given copyright. The owner of a copyright has the right to prevent others from, distributing, making derivative works, performing, exhibiting, or utilising the work covered by the copyright.
Trademarks
Article 15 states that any sign, or set of signs, able to distinguish one undertaking’s products and services from other undertakings’, shall be eligible for trademark registration, provided that it is clearly detectable. It helps to identify goods of one business and distinguish them from other goods sold which protect the public to confusion and duplicity by identifying the origin of particular product as distinguished from other particular products.
Geographical indications
As per Article 22, geographical indications designate a good as coming from a member’s territory, or an area or place within that territory, where the good’s quality, reputation, or other attribute is largely due to its geographical origin. Traditionally, some commercial items have been manufactured in a geographically defined territory. In commercial relations, the geographical indicator becomes the dependable “carrier” of qualifying product features when these items are accredited to certain criteria fundamentally due to their geographical provenance. The purpose and value of geographical indications are subsequently given to trademarks, and they are entitled to legal protection.
Industrial designs
Articles 25 and 26 of the agreement says members must ensure that fresh or unique industrial designs generated independently are protected. The Agreement, which is based on the Paris Convention but goes much beyond it, promises to preserve industrial designs for a minimum of 10 years. When such activities are conducted for commercial objectives, the right holder can ban third parties who do not have the holder’s agreement from producing, importing or selling items that incorporate the protected design.
Patents
According to Article 27 of the agreement, a patent is an intellectual property right (IPR) awarded to inventors. The inventor, as the patent owner, has the right to prevent anybody else from creating, using, selling, or importing the patent-protected invention in a specified region for a set length of time.
Layout-Designs (Topographies) of Integrated Circuits
Semiconductor integrated circuit is integrated part of computer chip that is used in computer to perform. A semiconductor is any physical substance in nature that is responsible of flow current in circuits. The responsibility of semiconductor is to maintain healthy connectivity among circuit points i.e., neither free flow of current nor repel. Semiconductors are commonly used in electronic devices such as cameras, cellular devices, etc.
TRIPS Agreement
- TRIPs provide minimum standards in the form of common set of rules for the protection of intellectual property globally under WTO system.
- The TRIPs agreement gives set of regulation deals with country procedure and remedy for the applicability of intellectual property rights.
- Member countries have to prepare necessary national laws to implement the TRIPs provisions.
- TRIPs cover eight areas for IPRs legislation including patent, copyright and geographical indications.
Regulatory landscape changed in 1995 with the founding of WTO and TRIPS becoming its integral part. India as member of WTO agreed for recognizing both process and product patents. It was thought that this challenge would push firms to engage more in R&D and bring out innovative drugs.
All the new insurance products are merely a new form of known products. The new products are merely concoctions of existing products. For that sake any financial products are obvious combination of existing products. Section-3(d) of Patent Act, 1970 prevents by obtaining secondary patent by introducing minor changes in existing technology.
So also the financial products cannot be copyrighted. No new invention to benefit the society as a whole has taken place. And it is difficult too. Many of us are aware of the case by the music director Ilayaraja against Late SPB preventing the latter to sing his songs.
At the best the name of a new insurance policy can be copyrighted, similar to branding. Another insurer can come up with same concoction with a different brand name.
In the famous case of NOVARTIS AG Vs Union of India, the HC of Madras has turndown the application by the pharmaceutical company on the ground that the drug failed to satisfy the novelty and non-obviousness. In April 2013, the two judge bench of Supreme Court of India rejected the appeal filed by Novartis and upheld that the beta crystalline form of Imatinib Mesylate, a cancer drug is a new form of the known substance. It is not a new invention.
In the case of Lg Electronics India Pvt. Ltd. v. Bharat Bhogilal Patel the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement of 1994 mandates the member countries to make such measures. In pursuance to the…mandated under the TRIPS Agreement. Thus, the ambiguity in the interpretation of the rules along with the circular continues to remain as circular in one sentence seems to clarify the same but in another…Border Regime relating to patents under TRIPS Agreement.
The Court referred in the case yonex kabushiki kaisha v. the registrar of trademarks
That the Article 6 bis of Paris Convention, 1967 and also Article 16 of TRIPS Agreement 1994. The Court observed that…as per Article 16 of TRIPS Agreement 1994, in determining whether the trademark is well known, the members shall take account of the knowledge of the trademark in relevant sectors of the public…, including knowledge in the member concerned which has been obtained as a result of the promotion of the trademark. India became a signatory of the TRIPS Agreement in the year 1994.
Advantages of the TRIPS Agreement
- Equality in IP rules was establish to the world’s attention.
- WIPO’s existing international legal system, which was designed and controlled by them, was greatly enhanced by this agreement.
- Trade conflicts over intellectual property concerns were reduced by establishing a clear, rules-based framework for resolving disputes.
- It has aided in the acquisition and exercise of intellectual property rights, as well as providing a solid platform for the trade in knowledge products.
- In developing countries, the number of patent applications is increased
Disadvantages of the TRIPS Agreement
- TRIPS mandates high levels of patent protection.
- Fertilisers, insecticides, pharmaceutical items, and procedures were not protected by patents, resulting in low-cost food and drugs.
- Education and technology transfer were fostered by the lack of copyright protection for informational products.
- Jobs in the local imitative industries were lost.
- In general, increased prices resulted in significant deadweight losses, with minimal stimulation of local innovation.
- Traditional knowledge is not protected in any way.
References
- NOVARTIS AG Vs. Union of India
- Waiver v. Flexibilities
- Article 22,25,26 and 27 of the TRIPs Agreement
- Lg Electronics India Pvt. Ltd. v. Bharat Bhogilal Patel
- yonex kabushiki kaisha v. the registrar of trademarks
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