Posted On: June 25, 2022

SIGNIFICANCE OF TRIPS & IMPORTANT PROVISIONS RELATED TO PATENTS

SIGNIFICANCE OF TRIPS & IMPORTANT PROVISIONS RELATED TO PATENTS

INTRODUCTION
The TRIPS agreement, officially referred to as the Agreement on Trade-Related Aspects of Intellectual Property Rights, also known as the Marrakesh Agreement is an agreement that sets a baseline for its members to provide a certain level of protection to the intellectual property within their jurisdiction. This agreement covers provisions relating to patents, trademarks, copyrights, industrial designs, geographical indications, semiconductor designs, and trade secrets. This agreement sets out the standards for minimum level of protection that must be given to the Intellectual Property Assets among the contracting parties. The TRIPS agreement also directs the parties to adhere to some general principles for strengthening of the enforcement of intellectual property rights. The Agreement also clarifies that the disputes between WTO Members is subject to the WTO’s dispute settlement procedures. Knowledgentia Consultants which is an award winning corporate and intellectual property rights law firm provides all services relating to global IPR protection, so in case of filing and enforcement of IP rights in any jurisdiction, we can be your one stop solution.

PROVISIONS RELATING TO PATENTS
Section 5 of the TRIPS Agreement specifies provisions relating to the protection of patents.  Article 27 discloses the patentable subject matter and provides the invention should be new, involve an inventive step and should be capable of industrial application in case it needs to be patented.  Articles 27(2) and 27(3) are exceptions to the patentable subject matter. Article 28 which is another important provision of the agreement governs the rights conferred to patentee/owner of patent. Article 29 places conditions on the applicant to disclose the invention to the inventor and also requires the applicant to disclose the details regarding the filing/grant of same application in foreign jurisdictions.

The agreement also provides for the exception to rights conferred to the patent owner.  Article 30 provides limited exceptions to the exclusive rights conferred by a patent and  Article 31 discloses the provisions for respecting the rights of the patentee that should be taken into account where the law of a contracting state allows for other use of the subject matter of a patent without the authorization of the right holder.  Article 31b is related to the compulsory licensing in relation to the production and exporting of a pharmaceutical product(s). It also specifies about the availability of judicial review against any decision for revocation or forfeiture of a patent, and mandates that the term of patent should be 20 years from the filing date of patent. Further, it directs that the burden of proof, where the patent is a process patent, is on the defendant i.e., to prove that the process used by him to obtain an identical product is different than the patented process.

In India the Patents Act, 1970 was enacted in conformity with provisions of the agreement via a series of amendments. The conformity between the Indian Patents Act, 1970 and the TRIPS agreement can be viewed by comparing some of the provisions as under:

  1. relating to the exclusion of subject matter (under Article 27(2), 27(3)(a) & 27(3)(b) of TRIPS agreement and under Section 3(b), 3(i) & 3(j) of The Patents Act, 1970);
  2. relating to the rights of a patent owner (under Article 28 of TRIPS, and under Section 48 of The Patents Act, 1970);
  3. relating to the disclosure of ‘Best Mode’ of invention known to the inventor (under Article 29(1) of TRIPS, and under Section 10(4) of The Patents Act, 1970);
  4. relating to the statement and understanding regarding the corresponding foreign filing of the application (under Article 29(2) of TRIPS, and under Section 8 of The Patents Act, 1970);
  5. relating to the compulsory licensing for export of pharmaceutical product (under Article 31bis of TRIPS, and under Section 92A of The Patents Act, 1970);

The signing of TRIPS agreement has brought about uniformity and harmonization of intellectual property regulations among the contracting states, so as to enable clear and systemized understanding of the laws regarding the protection, enforcement, and dispute settlements relating to the intellectual property.

The provisions under the TRIPS agreement are more of a directive nature that mandates a contracting state be obliged to maintain a minimum standard of protection . States  are however free to use any appropriate method for implementation of the provisions of the agreement within their own legal framework.

Since the introduction of the agreement in 1995, the inclusion of inventors, Research & Development units, and other organizations have increased drastically in knowledge economy of the nations by bringing transparency in their IP policy. It has led to the rise of all types of IP application including patents, trademarks, plant variety protection filings, and others, and a point to note is that post agreement, most of the filing done by the developing countries have surpassed the number of filings by the developed ones.

CONCLUSION
The TRIPS agreement has been one of the most progressive and comprehensive global agreement with aim to foster the globalized intellectual capital among  multiple countries. It has led to the better understanding of process relating to the transfer of technology in the form of IP from one country to another, such as the one seen during the patenting of coronavirus vaccines. However, in developing countries the enforcement of IP needs to be strengthened further at par with the developed countries, in order to reap more benefits of the globalized IP trade and bring in more confidence in the minds of individual inventors, Research & Development units, and various other organizations. At Knowledgentia Consultants, we have one of the best patent consultants in India, who offer advice regarding filing and procedure with respect to patent applications. We are your one-stop solution for all kinds of legal, compliance and supplemental matters concerning patents. In case of any query regarding this matter you may email us at info@knowledgentia.com or visit our website –https://knowledgentia.com/.

PUBLISHED BY MS. HARINDER NARVAN, MS. APARNA JAIN & MS. AASHRIKA AHUJA

Inderpreet singh
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