WTO Members: Special Considerations under the TRIPS Agreement

• Pages: 192-195

Contenidos

• The Issue.
• Legal and Policy Considerations.
• Practice Examples.
• References.

Page 192

The Issue

Although patent law is a matter of national legislation, WTO member countries need to adapt national law to TRIPS requirements to avoid being challenged under WTO dispute settlement rules.

Legal and Policy Considerations

Member countries of the World Trade Organization (WTO) are bound by the requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement or TRIPS). The TRIPS Agreement contains comprehensive minimum standards in various areas of intellectual property, including patent protection.

The TRIPS Agreement requires WTO members to establish, among other things, basic criteria of patentability (novelty, inventive step, and industrial applicability) and a uniform patent term of twenty years. Developing countries were bound to fully implement their TRIPS obligations, including pharmaceutical patents, no later than January 1, 2005. Countries defined as least-developed countries (LDCs) by the United Nations had at least until January 1, 2006 to implement TRIPS obligations. For pharmaceutical patents and test data protection, the Doha Declaration (see below) extended this transition period until 2016. Therefore, LDCs do not have to grant or enforce local patents until January 1, 2016 with a possibility of further extension.

The TRIPS Agreement attempts to strike a balance between the interests of right holders and users and contains elements of flexibility to pursue public policy goals such as the protection of public health. Apart from disclosure of the invention as the fundamental obligation of a patent owner, the most important provisions are: exceptions from the requirement of patentability; research exceptions; compulsory licensing (see Topic 11.1); and freedom to provide for international exhaustion (see Topic 11.3). For compulsory licenses, Article 31 of the TRIPS Agreement establishes various conditions, aimed at protecting legitimate interests of the patent holder. However, TRIPS places no restrictions on the grounds on which such licenses may be granted.

To affirm and enhance flexibilities contained in the TRIPS Agreement, WTO Members adopted the " Declaration on the TRIPS Agreement and Public Health " at the Doha WTO Ministerial Conference in November 2001. The Doha Declaration stresses that the TRIPS Agreement "can and should be interpreted and implemented in a manner...