General Principles

Nature & Scope of Agreement

Rights and Obligations-Article 1
The TRIPS Agreement does not only impose obligations or duties on WTO Members, but also grants them an important set of rights. The TRIPS Agreement and incorporated WIPO Conventions are often drafted in general terms. Members have the right to implement the TRIPS Agreement in the manner they consider appropriate. Intellectual property (IP) law contains much inherent flexibility. Members have the right to use the flexibility inherent in the Agreement, as well the obligation to meet its minimum requirements. TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is 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.

 The TRIPS Agreement obligates WTO Members to establish a set of minimum standards that will permit parties to obtain and enforce certain rights in IP. The preamble of the TRIPS Agreement recognizes that IPRs are private rights. This means that holders of IPRs, not government authorities, are generally responsible for pursuing the enforcement of IPRs. On the other hand, governments may be (and often are) holders of IPRs, and the reference to IPRs as private rights should not be understood as a limitation on government ownership. TRIPS Agreement obligates Members to give effect to the provisions of the Agreement. It also provides that Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice. For example, copyright law typically allows the fair use of authors and artists works for certain categories of acts, such as for criticism or parody. Rights of fair use are acknowledged under the terms of the Berne Convention on Literary and Artistic Works

National Legislation Vs Direct Effect

Members may, of course, choose to give effect to the rules of the TRIPS Agreement by the adoption of national legislation or administrative rules that specifically implement its provisions. However, not all legal systems require that the rules of treaties (or international agreements) be transformed into national law by the adoption of specific legislation. In some national legal systems, the constitution provides that treaties may be given direct effect by the regulatory authorities and courts. If a Member allows the TRIPS Agreement direct effect, this generally means that private parties may directly rely on its terms before national courts. If the parliament or the executive of a Member prefers to implement the TRIPS Agreement in a particular way taking advantage of the flexibility referred to earlier it may lose some of its option in turning the task of interpreting the Agreement over to the courts.

Structure of the Agreement

The TRIPS Agreement consists of seven Parts. The first two parts are concerned with substantives rules that WTO Members are expected to implement and apply in their national (or regional) legal systems. The third Part establishes the enforcement obligations of Members. Fourth addresses the means for acquiring and maintaining intellectual property rights (IPRs). The fifth Part is directed specifically to dispute settlement The sixth Part concerns transitional arrangements The seventh concerns various institutional and other matters.

Article 2
The Relationship of the TRIPS Agreement to the WIPO Conventions and Treaties . The TRIPS Agreement is unique among the WTO agreements in that it incorporates provisions of various pre-existing Conventions into its body of rules, the most important of which are the Paris Convention on the Protection of Industrial Property and the Berne Convention on Literary and Artistic Works

National and Most Favoured Nation Treatment- Articles 3 & 4

National treatment only applies once a product, service or item of intellectual property has entered the market. Therefore, charging customs duty on an import is not a violation of national treatment even if locally-produced products are not charged an equivalent tax. :A Member should treat foreign nationals in a manner equivalent to local nationals for the purpose of obtaining and enforcing rights in IPRs, as well as in defending against allegations of abuse. Most-favoured-nation (MFN): treating other people equally A Member should treat nationals of different Members in the same manner, and should not grant special privileges to nationals of particular Members Both the national and MFN principles are subject to certain limitations and exceptions.

Article 5-Multilateral Agreements on Acquisition or Maintenance of Protection

The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

Exhaustion of IPR:Article 6
WTO Members have not agreed on uniform rules regarding whether exhaustion of IPRs should have a national or international character. Under a doctrine of international exhaustion, if a product is lawfully placed on market in one WTO nation, the holder of a parallel IP right in another nation is not able to control its importation or resale based on that parallel IPR. Under a doctrine of national exhaustion, the lawful marketing of the product in one WTO nation does not affect the rights of a parallel IP holder in another nation, and the IP holder in the other nation may use its parallel IPR to block the importation and further disposition of the product The TRIPS Agreement simply says that none of its provisions, except those dealing with non-discrimination (national treatment and most-favourednation treatment), can be used to address the issue of exhaustion of intellectual property rights in a WTO dispute. In other words, even if a country allows parallel imports in a way that another country might think violates the TRIPS Agreement, this cannot be raised as a dispute in the WTO unless fundamental principles of non-discrimination are involved. The Doha Declaration clarifies that this means that members can choose how to deal with exhaustion in a way that best fits their domestic policy objectives.

Objectives of the Agreement and principles of interpretation and application Article 7 & 8
Article 7 confirms that the IPRs are intended to reflect a balance between the interests of private stakeholders that are relying on IP protection to provide an incentive for creativity and invention (and investment in those activities), and society that is expected to benefit from access to creations and the transfer and dissemination of technology. Article 8:1 indicates that Members may adopt, inter alia, measures necessary to protect public health and nutrition, provided that those measures are consistent with the Agreement. Article 8:2 acknowledges the right of Members to take action against anticompetitive practices ( restrain trade or adversely affect the international transfer of technology) relating to IP, also with the proviso that such action must be consistent with the Agreement.

The Doha Declaration on the TRIPS Agreement and Public Health

On 14 November 2001, the WTO Ministerial Conference in Doha adopted the Ministerial Declaration on the TRIPS Agreement and Public Health. the Doha Declaration affirms the right of Members to take advantage of the flexibility inherent in the TRIPS Agreement, and affirms and clarifies the meaning of provisions relating to compulsory licensing and parallel importation. The Doha Declaration authorizes an extension to least developed Members regarding the implementation and enforcement of pharmaceutical patent protection, the scope of which may well become the subject of dispute settlement. Pursuant to paragraph 6 of the Doha Declaration, by the end of 2002 there should be a recommendation from the TRIPS Council to deal with the issue of compulsory licensing predominantly to meet export demand in the field of medicines.

Article 27 Patentable Subject Matter

Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. Members may exclude from patentability inventions, to prevent the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

 Members may also exclude from patentability: (a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties.

Article 28 Rights Conferred

1. A patent shall confer on its owner the following exclusive rights: (a) where the subject matter of a patent is a product, to prevent third parties not having the owners consent from the acts of: making, using, offering for sale, selling, or importing for these purposes that product; (b) where the subject matter of a patent is a process, to prevent third parties not having the owners consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process. 2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.

Article 29 Conditions on Patent Applicants

1. Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application. 2. Members may require an applicant for a patent to provide information concerning the applicants corresponding foreign applications and grants.