Trips: Ms. Deepika
Trips: Ms. Deepika
Trips: Ms. Deepika
Ms. Deepika
WTO TRIPS Agreement
• New/novel
• Inventive step/non-obviousness
(not obvious to someone skilled in
the art)
• Industrial Applicability
• Patentable subject matter
Patent requirements
• New/novel
• Inventive step/non-obviousness
(not obvious to someone skilled in
the art)
• Industrial Applicability
• Patentable subject matter
How to obtain a patent?
• Domestic patent/IP office: filing, obtain priority
date
• European patents: a bundle of patent rights at the
European patent office
• International level: WIPO
Application requirements:
• Description as how the invention works
• Claim covering the scope of the legal monopoly
claimed by the patentee
• Examination and publication
Exclusions from patentability
• Discoveries are not patentable:
Einstein could not patent his celebrated law that E = mc^2;
nor could Newton have patented the law of gravity. Such
discoveries are “manifestations of . . . nature, free to all men
and reserved exclusively to none”
• Literary, dramatic, musical or artistic works
• Schemes, rules, games, computer programs as such
• Methods of medical treatment
• Contrary to public policy and morality: Those which by
publication or exploitation might result in offensive, immoral
or anti-social behavior. Current debate life patents/GM Food
• Plant and animal varieties (in EU not in US)
Copyright
• Copyrights protects the rights of authors of literary and
artistic works
• Copyright is in essential a negative right which prevents
others from making copies of the work of an author
• No copyright in a pure idea/news/simple
works/information itself
• Expression/idea dichotomy
• If sufficient ‘selection, judgment and experience’ or
‘labour/skill and capital’ copyright can be granted, even in
a database (so not the content in the data base but the
compilation itself), in EU separate database right, not in
the US.
• Moral rights versus economic rights
Rationale behind IPRs
Patents
To stimulate innovation/encourage investment the
inventor receives an exclusive right to his invention
in exchange for disclosure of the invention in such a
way that it allows replication, the inventor receives
a limited amount of time to recoup his investment
Trademarks
Protection of goodwill and reputation
Copyright
Protection of creativity
Innovation: Methods and Factors
“Innovation is the development and implementation of an improved
(incremental) or new (landmark) product or process with success in a
business activity / society”
• Methods:
Formal innovation
Scientific method (evidence of efficacy and/or efficiency)
Marketing strategies (new utility, design, process)
Informal or Traditional
Experience/belief
intergenerational
individual or collective
Functional
• Factors:
Culture, education, inventiveness/creativity, capital, enabling
environment, linkages, supplychain management, marketability,
etc.
Why are IPRs important?
• IPRs allow control over technology, signs
and creations
• Original Purpose: to stimulate innovation
and creativity by compensating the
creator/innovator for their intellectual
efforts
• Lately: incentive to investment / change in
market players
--big multinationals
The TRIPS Agreement
IPRs
• … create semi-monopolies also covering goods that
might be essential to society (e.g. pharmaceuticals and
environmentally sound technologies) /raises prices
(higher than production costs)
• …limit access to textbooks, educational material,
information
• …impacts on reverse engineering and imitation
• …exceptions are pushed to the limit/scope is widened:
– extension of subject matter - - patentability of life / software;
– extension of term of protection -- 70 years of copyright protection;
– creation of new rights -- non original databases;
– over relaxation of granting of patents -- lack of adequate description;
– inclusion of IP in trade, investment and stand alone agreements;
– primacy of private rights of public rights
Development IPR Solutions
• WTO Doha (Development) Round
Doha Round Declaration 14 November 2001
Doha Declaration on TRIPS and Public Health
• “we agree that the TRIPS does not and should not prevent
members from taking measures to protect public health,
TRIPS should be interpreted and implemented in a manner
supportive of public health and promote access to
medicines” (par 4)
• “Each member has the right to grant compulsory licences
and the freedom to determine the grounds upon which
such licences are granted” (par 5b)
(Art. 31 TRIPS)
Compulsory Licensing
Article 31 TRIPS
--anti-diversion measures to
prevent parallel import of medicines to
other countries rather than the intended
beneficiary
• Waiver Decision: 30/8/2003
• Article 31bis TRIPS Agreement : 6/12/2005
(first TRIPS amendment)