Day 55 – Q 5.What do you understand by Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement? What are its implications for India? Explain with the help of suitable examples.
5. What do you understand by Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement? What are its implications for India? Explain with the help of suitable examples.
बौद्धिक संपदा अधिकार (TRIP) समझौते के व्यापार–संबंधित पहलुओं से आप क्या समझते हैं? भारत के लिए इसके मायने क्या हैं? उपयुक्त उदाहरणों की सहायता से समझाएँ।
The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property. The areas of intellectual property that it covers are: copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications, including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.
- The TRIPs (Trade Related Intellectual Property) regime has emerged as the basic framework for ensuring intellectual property rights across the world. It is not the universal Intellectual property law. But it provides a basic framework. Every member of WTO should include TRIPs provisions in their domestic intellectual property legislations.
- The three main features of the Agreement are:
- Standards- In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member.
- Enforcement. The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures.
- Dispute settlement. The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO’s dispute settlement procedures.
- The intellectual property rights regime of the country has been modified by a number of legislation since 1995. For India, the WTO’s TRIPs agreement became binding from 2005 onwards as the country has got a ten-year transition period (1995-2005) to make the domestic legislation compatible with TRIPs.
- Here, India has got additional five-year transition period because of not having product patent regime in critical sector like pharmaceuticals. Hence, existing laws were amended and fresh legislations were introduced during this period.
- Different amendments to the various existing Acts- Patent Amendment Act (2005), the Copyright Amendment Act (2010), were made to strengthen domestic legal framework to fulfill the harmonization with the WTO’s TRIPS agreement. Similarly, a number of fresh legislations were made to upgrade the country’s intellectual property regime.
- Among all the provisions of the WTO agreement, the one relating to Trade Related Intellectual Property Rights (TRIPs) has possibly been the most widely debated in the country. There are reasons why this has been so.
- First, because provisions in TRIPs relate to the country’s Patent Laws and have a very serious bearing on major areas of the country’s well being – health, agriculture, research, etc.
- Second, because India has been particularly fortunate among all developing countries in having a very liberal Patents regime since 1970 that promoted the country’s interests.
- Third, because in the initial stages of the “Uruguay Round” of negotiations under the aegis of the then General Agreement on Tariffs and Trade (GATT), which finally led to the formation of the World Trade Organisation (WTO), India had been extremely vocal in opposing the inclusion of Patent laws in the negotiations.
- India moved from a process patent system to a product patent system in 2005. The patent law is one of the seven intellectual property laws protected under this agreement. Product Patent is the granting of patent to the ‘final’ product irrespective of the process used for obtaining the product. Once you obtain a patent on the product, then one is precluded from manufacturing that product, even though with a different process.3
- The existence of process patents under the 1970 Indian Patents Act resulted in a robust growth of domestic pharmaceutical industry in India. At the same time, history also shows a decline in the business of foreign pharmaceutical companies in India.
- With the coming of the TRIPs Agreement, disputes have arisen with regard to the protection of pharmaceutical patents. TRIPs does not provide for the retrospective patenting in India of drugs that are already on the market or covered by existing patent applications elsewhere.
- The major changes made in the Indian Patent Act would have significant impact. The market would increasingly become technology driven. Indian firms would have to compete in the new scenario.
- The National Intellectual Property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision document to guide future development of IPRs in the country. It’s clarion call is “Creative India; Innovative India”.
The major changes introduced in the Indian Patent Act that were required to meet India’s obligations to international agreements and treaties. The new Patents Act (Patents Amendment Act 2005) has created a strong patent system in India. Overall the present system has increased the scope of patenting and provides stringent safeguards to the patentee.