trips 14th july

8/7/2019 trips 14th july

1/27

PROF SAVITA GAUTAM

FORE SCHOOL OF MANAGEMENT


2/27

TRADE RELATED INTELLECTUALPROPERTY RIGHTS

History-

Included as late as 1993.

Pfizer, a pharma company garnered support fromdeveloped countries to stop patent piracy in the thirdworld.

Arthur Dunkel made a strategic proposal.

Trade related IPRs only Arm twisting successful by the developed countries.


3/27

CONVENTIONS

y Paris convention related to patents.

y Berne Convention area of copyrights

y Rome convention area of performing arts.

y Washington treaty on integrated chips.

y Most of the intent of these conventions has found

place in the TRIPS agreement.


4/27

Article 7- objective of trips

y Protection & enforcement of IPRs

y Should contribute to the promotion of technological innvation

y Disseminations of these innovations to the mutual advantage of the

inventor & user of technologyy With a right balance of rights & obligations


5/27

Minimum standards for protectiony Trips sets to have atleast minimum standards for all WTO member

countries

y Country may choose to have higher standards

y Encourages to give high level of protection to the IP holder


6/27

What is TRIPS?

Intellectualwork / creation of the mind will result in a intellectualproperty of individual, company, people of geographical area.

State provides the protection to the monopoly right.

What you create using your intellectual mind--- is intellectualproperty, giving it a legal status.

The owner enjoys the fruits of his creation---- by having exclusiverights anybody wanting to use his intellectual property will have toseek permission and get the saleable rights for a consideration

there is a balance of the rights and obligations and protection isgiven for a fixed time before it can move to public domain.

( exceptions- trade marks and GI are given protection in perpetuity.


7/27

TRIPS COVERAGE

y Patents

y Copy rights

y Trademarks/Servicemarks

y Geographical Indications

y Layout of integrated circuits

y Trade Secrets

y Industrial design


8/27

WHAT CAN BE PATENTED?

INVENTIONSy New/ Novel- should be different from the previous inventions. A significant

unique & intellectual intervention in making the product. ( Inventive step)

y Non-obviousness-The inventive step should be a unique / an enigma toothers.

y Shouldhave industrial / commercialapplication, (commercial use)- Theinventor has to prove in theory that the proposed product is capable ofindustrial application.


9/27

WHAT CANNOT BE PATENTED?

y Ordre public- contrary to the public order, inventions which aredangerous to human ,animal ,plant life or environment.

y Diagnostic, therapeutic and surgicalmethods- for treatment of

humans or animals or plants.y Plants & Animals other than micro- organisms- essentially the

biological processess for production of plants or animals (exceptionnonbiological and microbiological processes).

y Controversial aspect- silence on Bio piracy


10/27

What cannot be patented?

y Invention which is frivolous. contrary to the established laws.

y Against ordre public.

y Mere discovery of a scientific principle.

y New use for the same known substance.( aspirin)y A substance produced by a mere admixture resulting only in aggregation of

properties.

y A method of agriculture/ horticulture.

y Treatment process of plants, animals and humans.

y

Inventions relating to atomic energy that relate to production, control, use ordisposal of atomic energy and those relating to mining extraction or chemicaltreatment of radioactive substance.

y Traditional knowledge such as turmeric as an antiseptic.


11/27

Patentsy Product patent- may impact the prices

y A patent granted in India for an essential drug- will

block the generic production by indian companies.y Lupin produces anti AIDS drug at 400$/annum and

Bayer at 1200$/annum

y Government needs a right to control the essential drug

pricesy HOW? Intent- to keep patients before patents


12/27

Compulsory licensingy Authorisation given by,

y Government

y Judiciaryy Competition commission

y Can be done only after three years of granting of thepatent

y It allows generic competition.y To a third party to produce and market generic

versions of the drug, even without the consent of thepatent holder


13/27

COMPULSORY LICENSING

y Governments use of a patent without the authorisation ofits owner is allowed,

y Objective- availability, accessibility & affordability ofmedicines for the poor.

y

Try to acquire a licence on reasonable commercial terms fromthe owner.

y offer adequate remuneration to the right holder.

y If not agreed- go ahead with production of the medicine byuse of CL

y Should not distinguish between imported or local products.

y Cl can be given when another country wants to import.- AIDScontrol program in Africa,& lupin lab role in it

y Patented products covered- medicinal products, active ingredients&

diagnostic kits.


14/27

TRIPS AND PUBLIC HEALTH

y Under the Doha ministerial declaration,2001,recognize the gravity of the public health problems afflicting

many developing and least developing countries, especially

those with HIV/AIDS/ TB/ malaria and other epidemicdiseases.

y Pu lic health protection is necessary.

y Made changes in the compulsory licence provision

added the words national emergencies/extremely urgent situationsin 2001

y Allow mem er countries to use compulsory licence

provision and cater the domestic as well as e port

market. ( parallel imports possi le)


15/27

India and the pharmacy world of

developing countriesy 67 % of medicines exported from India goes to the

developing world

y50% of the essential medicines distributed by UNICEFto the developing world comes from India

y 75 to 80% of all medicines distributed by IDA(international dispensary Association) comes from

India


16/27

Indian Patent Act- main amendmentsy The Patent Amendment Act 2002& patent rules 2003y Ethos- Patent rights of a person/ public rights-a fine balance.y Term of every patent is 20 years from the date of filing.y

New definition of invention- a product or a process involving inventivestep.y Every patent (except incase of secrecy to be provided for) will be

published from the 18 months from the date of filing and will hence beopen for public on payment.

y Provision for withdrawal of application by the applicant any timebefore the grant has been introduced.

y Provision for compulsory licensing as per TRIPS.y Burden of proof on defendent and not plaintiff.


17/27

Copy Right Act.y Protection to a person for literary, dramatic ,musical, painting

sculpture drawing, a work of architecture, cinematographic, soundrecording and computer software.

y Shall extend to an expression and not to an idea.y Parichay/sound of music. Modern India by RomilaThapar Freedom at

midnight by Dominique.

y Trips gives protection for lifetime of a person plus 50 from the date ofauthorized publication or from the year of making.

y The Indian copyright Act (amendment), 1999, gives protection forlifetime plus 60 years.


18/27

Trademarks/servicemarksy Why the need?

y Trademark is a visual symbol in the form of,y Wordy

Devicey Namey Lettery Numeraly Brand headingy Signaturey label or a combination of these that enables a person to connect the product with the

company offering the product

y Members have an option to register trademark after considerableuse/otherwise.y Members shall publish each trademark either before it gets registration or

promptly after its registration. Giving a reasonable opportunity for others toobject.

y Term of protection shall be of not less than7 years. shall be renewableindefinitely.


19/27

Trademarks/Servicemarksy Registration may be cancelled only after an uninterrupted period of at

least 3 years of nonuse, unless the owner of the trademark shows a validreason for non usage

y The Indian Trademarks Act of 1999 gives ground for refusal ofregistration of a trademark,

y Lack of distinctive character.

y Is of a nature to deceive the public or cause confusion.

y Contains any matter that hurts religious feelings.

y

Obscene mattery Just the pic .of goods being manufactured


20/27

Geographical Indicationy Are names, places used to identify the origin and quality or reputation and

characteristics of the product.

y

A products characteristics is attributed to its geographical area/region.y Distinctiveness conferred on a product due its geographical area.

y Geographical indications have to be protected in order to avoid misleading thepublic, and to prevent unfair competition

y The Indian geographical Indication Act extends to Agriculture goods ( natural/manufactured), handicrafts and foodstuff.

y Both WTO and the Indian act prohibits use of GI for goods not originating inthe territory/ misleading to the public.

y Member has an obligation to protect GI only if it has protection in its homecountry. i.e. India

y Term of registration-10 years and can be renewed indefinitely.


21/27

GI- Examplesy Darjeeling Tea- first GI given in India

y Champagne of tea

y

Long leavesy Light coloured Liquor

y Grown in Himalayas- above- 7000feet

y 10,000 T is the Annual production , 40,000 T is sold in

the markety Certification mark

y Tirupathi laddu, Alphonso mangoes, santiniketanleather goods, blue pottery of Jaipur


22/27

Geographical Indicationy Special protection to Wines and spirits- the bone of contention

y Article 23 gives this protection to wines and spirits

y The word of GI to be protected, its translations, and even terms likekind, type , style cannot be used even if the true origin is indicated

y

Article 23.4- ( added in doha- declaration- 2001)

y In case the trips articles get violated the aggrieved member can takewhat recourse?


23/27

GI-continuedy Geographical Indications of Goods ( Registration and protection) Act,

2003.

y Controller General of Patents, Designs and Trademarks-GI registry is

located in Chennai.y Who can apply- persons, producers, organizations, essentially

representing the interest of producers.

y Benefits-y Gives legal protection to GI in India.

y

Prevents unauthorized use of GI by others.y The place associated gets well known across the world

y Creates brand value.

y Promotes exports- - employment oppurtunities-economic prosperity.


24/27

IP of layout designs of integrated

circuitsy IPIC treaty of 1989.( treaty on IP in respect of Integrated circuits)

agreed to give protection to the layout designs (topographies) ofintegrated circuits.

y India gives the protection for 10 years from the date of filing ofregistration or from the date of first commercial exploitation,whichever is earlier. Indian IC layout Design Act 2000


25/27

Protection ofUndisclosed

Informaton.y What is undisclosed information?

y Secret, not generally known or accessible, information has a

commercial value because it is secret, persons in control of theinformation have taken steps to keep it secret.

y Members/ state shall protect such data except when it is needed forpublic good/ it has been used for unfair commercial use.


26/27

Industrial Design

y ID is the ornamental or aesthetic aspect of a useful article.

y Registration required

y

10 years protectiony Also includes textile deisgn.


27/27

Discussion Assignment- next class- group

assessment

y Indian Copy right act amendments had created

a controversy in the literary circles.

yWhat are these amendments? and can youjustify why these amendments should e

carried out.

trips 14th july

Documents