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Ims Unison University: SUBMITTED TO: - MS. Divya Rathor Faculty of Law Iuu

The document discusses the TRIPS agreement under the WTO and its implications for intellectual property rights. It focuses on issues developing countries face in implementing westernized IPR standards and how TRIPS can help address benefit sharing of traditional knowledge and biological resources.

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rashmi garg
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69 views

Ims Unison University: SUBMITTED TO: - MS. Divya Rathor Faculty of Law Iuu

The document discusses the TRIPS agreement under the WTO and its implications for intellectual property rights. It focuses on issues developing countries face in implementing westernized IPR standards and how TRIPS can help address benefit sharing of traditional knowledge and biological resources.

Uploaded by

rashmi garg
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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IMS UNISON

UNIVERSITY

SUBMITTED TO: - MS. Divya Rathor


FACULTY OF LAW
IUU.

SUBMITTED BY:-
RASHMI GARG
IUU15BBL003
BBALLB- SEM5
TITLE
Trade Related Aspects of Intellectual Property Rights: A Viable Tool for the
Enforcement of Benefit Sharing?

AREA

INTELLECTUAL PROPERTY
RIGHTS
ABSTRACT

This paper reviews the implications of the agreement on Trade-Related


Intellectual property rights (TRIPS) under the World Trade Organization
(WTO). The development and advancement of economy today’s world
focus on information based technology. Therefore, an intellectual property
right has played a major role as a protection of considerable interest of
development nations. It focuses on the national implementation of the
TRIPS agreement. This paper argues that efforts to promote compliance
with to the TRIPS agreement should be accompanied by measures that
address public interest challenges in developing countries. As a result of
initiation of the World Trade Organization (WTO) and the progression of an
agreement for standard of trade- related intellectual property right, backed
up by tough measures from United State , system of intellectual property
rights protection has been globalized. Nevertheless, developing countries
have to counter some problems with regard to enforcing and implementing
westernized intellectual property right. The present review elaborates all
aspects of intellectual property right in detail, along with their protection.

Keywords: intellectual property, WTO, TRIPS


Index
 Introduction
 Trips principles
 Intellectual property rights
 Agreement establishing the world trade organisation 1995
 Traditional knowledge
 Biological diversity convention
 CBD principle
 Patent act
 Trips agreement and prior informed consent/benefit sharing
 Conclusion
Introduction
What is trips agreement?
The Trade-Related Aspects of Intellectual Property Agreement (“TRIPS”) is a
multilateral agreement administered by the World Trade Organisation (“WTO”) that
came into effect on 1 January 1995. The TRIPS agreement is the first international
agreement that sets forth minimum standards of protection for several areas of
intellectual property. The TRIPS Agreement allows its members to provide more
extensive protection of intellectual property if they so desire. Members also have the
freedom to choose the appropriate method of implementing the provisions of the TRIPS
agreement within their own legal system and practice. The TRIPS agreement establishes
minimum standards for the use, scope, and availability of different forms of intellectual
property covered by it.

 Negotiated in the 1986-94 Uruguay Round


 Trade related aspects of Intellectual property rights (TRIPS) is a world trade
organisation (WTO) agreement designed by developed countries to enforce a
global minimum standard of intellectual property rights.
 Only one actually enforceable under GATT Arts. XXI & XXII & WTO dispute
settlement understanding.
 Since TRIPS is a part of the WTO agreements, developing countries that want
access to the global market through the WTO must accept the TRIPS agreement,
and integrate its IPR standards into their national legislation.

What is Intellectual Property Rights


Intellectual property rights are the rights given to persons over the creations of their
minds. They usually give the creator an exclusive right over the use of his creation for a
certain period of time. Intellectual property rights are customarily divided into two
main areas: copyright and rights related to copyright, and industrial property .

TRIPS Principles
The basic principles are-

 It mandates countries to provide patents for products and processes in all fields of
technology, subject to the tests of novelty, inventiveness and industrial use.
 It mandates patenting of ‘micro-organisms’ and non-biological and microbiological
processes.
 It also gives states the option for protecting new plant varieties through patents or
through any other effective sui generis system.

Agreement Establishing the World Trade Organisation 1995


The Agreement Establishing the World Trade Organisation 1995 (“WTO Agreement”) is
a short agreement setting out the role, structure and powers of the World Trade
Organisation (“WTO”). The WTO Agreement was part of the treaty that established the
WTO  the key aim of the WTO is “raising standards of living, ensuring full employment,
expanding production and trade, and allowing optimal use of the world’s resources. The
WTO Agreement provides the new organisation with a clear structure, political
guidance, a proper staff, and appropriate financial arrangements. Broadly, the WTO
Agreement defines the functions of the organisation, its structure, the qualifications for
membership, and decision-making procedures and requirements, as well as calls for
efforts for improve the coherence of global economy policy-making.

TRADITIONAL KNOWLEDGE
The 1992 Convention on Biodiversity promotes the need to ‘respect, preserve and
maintain’ traditional knowledge for ‘the conservation and sustainable use of biological
diversity’ and encourages the ‘equitable sharing of benefits arising from the utilization
of such knowledge. Traditional knowledge can refer to knowledge that is in some way
nationally held (such as ayurvedic medicine and Chinese herbal medicine), Traditional
knowledge tends to be passed down over generations and held collectively. It provides
legitimacy, as a first step towards benefit sharing of the knowledge and the resources
that these communities posses.

BIOLOGICAL DIVERSITY CONVENTION


The Convention on Biological Diversity (CBD) was seen as the first decisive step taken
by the global community to ensure conservation and sustainable use of the world's
genetic resources. For the genetic resource rich developing countries, the CBD was
particularly important because it recognised that States shall have sovereign rights over
the biological and genetic resources within their territories, and can establish laws to
regulate access to those resources.
CBD Principles
The CBD recognizes several broad principles that seek to define the nature of rights of a State over
its genetic resources and the legal framework it can establish for regulating access to such resources.
CBD’s key principles are as follows:

 Every State shall have sovereign rights over the biological and genetic resources within its
territory, and can establish laws to regulate access to those resources
 Access to such resources should be on ‘mutually agreed terms’ and should incorporate the
principles of ‘prior informed consent’ of the resource provider.
 Every Contracting Party of the CBD shall make efforts to develop and carry out scientific
research based on genetic resources provided by other Contracting Parties with the full
participation of, and to the extent possible, within the countries supplying the genetic
material.
 Contracting Parties should adopt legislative, administrative and policy measures that could
ensure effective participation in biotechnological research activities by those Contracting
Parties, especially developing countries, which provide the genetic resources for such
research, and where feasible in such Contracting Parties.
 Each Contracting Party shall take legislative, administrative or policy measures, as
appropriate, with the aim that the private sector facilitates access to, joint development and
transfer of technology for the benefit of both governmental institutions and the private
sector of developing countries.

 States should:
i) respect, preserve and maintain knowledge, innovations and practices of indigenous and
local communities embodying traditional lifestyles relevant for the conservation and
sustainable use of biological diversity,
ii) promote their wider application with the approval and involvement of the holders of
such knowledge, innovation and practices, and
iii) encourage the equitable sharing of benefits arising from the utilization of such
knowledge, innovations and practices.
The Patent Act 1970 as Amended in 2002 and 2005

“An invention which in effect is TK or which is an aggregation or duplication of known


properties of traditionally known component and components” is not patentable in
India. Moreover the Patent Act specifies that:

 The applicant must disclose the source of geographical origin of any biological
material developed (Section 10(d))

 If the applicant does not disclose or wrongly mentions the source geographical
origin of biological material used for invention, then it becomes the ground for
refusal of the patent (Section 25)

Cases

Turmeric case
Turmeric The crux of the issue in this case was the patent issued by USPTO to the University of
Mississippi Medical Centre in 1995 for its use in wound healing. In fact, the patent holders were
two non-resident Indians –Suman Das and Harihar Cohli. The CSIR raised objections and
submitted 32 references from ancient Indian scriptures. The issue herein was twofold:

 Whether the claimed invention fits into the patent criteria.


 The violation of IPRs and bio piracy under CBD. This was a landmark case which India won,
but the issues remained – lack of proper documentation of bioresources, the virtual
absence of information to USPTO regarding TK and the ground reality that we cannot chase
and challenge every TK based product research. Needless to say, the turmeric case speaks
volumes for the need to attune our legislations towards a fair and honest regime that
protects IPRs in letter and in spirit. It eventually opened up the path to the creation of TK.

Fiji and the cava case


Fiji and the Kava case Kava has been cultivated in Fiji and Vanuatu since times immemorial.
However, the L’Oreal group (a French company) has now patented the use of kava to stimulate
hair growth. The patented company can now obtain exclusive rights to the plant, thereby
demanding full profits associated with usage, ultimately creating a monopoly of ownership over
the plant.
THE TRIPS AGREEMENT AND PRIOR INFORMED CONSENT/BENEFIT
SHARING

The TRIPS Agreement allows the granting of patents for inventions that use genetic
material without requiring that the provisions of the CBD in relation to prior informed
consent and benefit sharing are respected. Two approaches, not necessarily mutually
exclusive, have been taken by Members in addressing these and other concerns
regarding the mutual supportiveness of the two Agreements.

 One approach is to use national solutions, including legislation on access and


benefit sharing and contracts (hereinafter referred to as the "national-based
approach").
 The other approach is to advocate some kind of "disclosure" requirement on
patent applicants as a supplementary measure to national legislation and
contracts (hereinafter referred to as the "disclosure approach"), including in
international forums other than the WTO .

Conclusion
The Agreement on TRIPS and the Convention on Biological Diversity (CBD) in a
mutually supportive manner has become imperative at the present juncture from the
point of view of protecting the interests of developing countries. Initiatives for realising
this objective have been taken in the WTO where a number of developing countries
have coordinated their efforts in this regard. Issues that will have to be resolved in the
discussions will be the form and content of the actual clarification/amendment to the
TRIPS Agreement the nature of obligation that is placed on the patent applicant and
benefit sharing that can be regarded as acceptable in patent applications. In other
words, developing countries should look for a solution to the vexed problem that the
present paper dealt with, which can be effectively enforced.

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