TRIPS Agreement

  WTO members (where the TRIPS agreement applies)

  Parties to the Agreement where also the membership of the European Union applies

"TRIPS" redirects here. For the microprocessor, see TRIPS architecture. For the German racing driver, see Wolfgang von Trips. For other uses, see Trip.

TRIPS Agreement
Annex 1C to the Agreement establishing the World Trade Organization

Agreement on Trade-Related Aspects of Intellectual Property Rights
WTO members (where the TRIPS agreement applies)   Parties to the Agreement where also the membership of the European Union applies
Type	Annex to the Agreement establishing the World Trade Organization
Effective	1 January 1996
Parties	158 (All WTO members)[1]
Languages	English, French and Spanish
Agreement on Trade-Related Aspects of Intellectual Property Rights at Wikisource

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.^[2] It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.

The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal "to promote access to medicines for all."

Specifically, TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs;integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

 

Background and history

TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the culmination of a program of intenselobbying by the United States, supported by the European Union, Japan and other developed nations. Campaigns of unilateral economic encouragement under the Generalized System of Preferences and coercion under Section 301 of the Trade Act played an important role in defeating competing policy positions that were favored by developing countries, most notably Korea and Brazil, but also including Thailand, India and Caribbean Basin states. In turn, the United States strategy of linking trade policy to intellectual property standards can be traced back to the entrepreneurship of senior management at Pfizer in the early 1980s, who mobilized corporations in the United States and made maximizing intellectual property privileges the number one priority of trade policy in the United States (Braithwaite and Drahos, 2000, Chapter 7).

After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. Because ratification of TRIPS is a compulsory requirement of World Trade Organization membership, any country seeking to obtain easy access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS. For this reason, TRIPS is the most important multilateral instrument for the globalization of intellectual property laws. States like Russia and China ^[3] that were very unlikely to join the Berne Convention have found the prospect of WTO membership a powerful enticement.

Furthermore, unlike other agreements on intellectual property, TRIPS has a powerful enforcement mechanism. States can be disciplined through the WTO's dispute settlementmechanism.

The requirements of TRIPS

TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:

• Copyright terms must extend at least 20 years, unless based on the life of the author. (Art. 12 and 14)^{[4][not in citation given]}
• Copyright must be granted automatically, and not based upon any "formality," such as registrations, as specified in the Berne Convention. (Art. 9)
• Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.
• National exceptions to copyright (such as "fair use" in the United States) are constrained by the Berne three-step test
• Patents must be granted for "inventions" in all "fields of technology" provided they meet all other patentability requirements (although exceptions for certain public interests are allowed (Art. 27.2 and 27.3)^[5] and must be enforceable for at least 20 years (Art 33).
• Exceptions to exclusive rights must be limited, provided that a normal exploitation of the work (Art. 13) and normal exploitation of the patent (Art 30) is not in conflict.
• No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed.
• Legitimate interests of third parties have to be taken into account by patent rights (Art 30).
• In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPS signatories under the principle of national treatment (with certain limited exceptions, Art. 3 and 5).^[6] TRIPS also has a most favored nation clause.

Many of the TRIPS provisions on copyright were copied from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were modeled on the Paris Convention for the Protection of Industrial Property.

Access to essential medicines[

The most visible conflict has been over AIDS drugs in Africa. Despite the role that patents have played in maintaining higher drug costs for public health programs across Africa, this controversy has not led to a revision of TRIPs. Instead, an interpretive statement, the Doha Declaration, was issued in November 2001, which indicated that TRIPs should not prevent states from dealing with public health crises. After Doha, PhRMA, the United States and to a lesser extent other developed nations began working to minimize the effect of the declaration.^[7]

A 2003 agreement loosened the domestic market requirement, and allows developing countries to export to other countries where there is a national health problem as long as drugs exported are not part of a commercial or industrial policy.^[8] Drugs exported under such a regime may be packaged or colored differently in order to prevent them from prejudicing markets in the developed world.

In 2003, the Bush administration also changed its position, concluding that generic treatments might in fact be a component of an effective strategy to combat HIV. Bush created the PEPFAR program, which received $15 billion from 2003–2007, and was reauthorized in 2008 for $48 billion over the next five years. Despite wavering on the issue ofcompulsory licensing, PEPFAR began to distribute generic drugs in 2004-5.

Software and business method patents

Main article: Software patents under TRIPs Agreement

Another controversy has been over the TRIPS Article 27 requirements for patentability "in all fields of technology", and whether or not this necessitates the granting of softwareand business method patents.

Implementation in developing countries

The obligations under TRIPS apply equally to all member states, however developing countries were allowed extra time to implement the applicable changes to their national laws, in two tiers of transition according to their level of development. The transition period for developing countries expired in 2005. The transition period for least developed countries to implement TRIPS was extended to 2013, and until 1 January 2016 for pharmaceutical patents, with the possibility of further extension.^[9]

It has therefore been argued that the TRIPS standard of requiring all countries to create strict intellectual property systems will be detrimental to poorer countries' development.^[10] Many argue^[who?] that it is, prima facie, in the strategic interest of most if not all underdeveloped nations to use the flexibility available in TRIPS to legislate the weakest IP laws possible.^[11]

This has not happened in most cases. A 2005 report by the WHO found that many developing countries have not incorporated TRIPS flexibilities (compulsory licensing, parallel importation, limits on data protection, use of broad research and other exceptions to patentability, etc.) into their legislation to the extent authorized under Doha.^[12]

This is likely caused by the lack of legal and technical expertise needed to draft legislation that implements flexibilities, which has often led to developing countries directly copying developed country IP legislation,^[13] or relying on technical assistance from the World Intellectual Property Organization (WIPO), which, according to critics such as Cory Doctorow, encourages them to implement stronger intellectual property monopolies.

Banerjee and Nayak^[14] shows that TRIPS has a positive effect on R&D expenditure of Indian pharmaceutical firms.

Post-TRIPS expansion

The neutrality of this article is disputed. Relevant discussion may be found on the talk page. Please do not remove this message until the dispute is resolved. (May 2011)

In addition to the baseline intellectual property standards created by the TRIPS agreement, many nations have engaged in bilateral agreements to adopt a higher standard of protection. These collection of standards, known as TRIPS+ or TRIPS-Plus, can take many forms.^[15] General objectives of these agreements include:

• The creation of anti-circumvention laws to protect Digital Rights Management systems. This was achieved through the 1996 World Intellectual Property Organization Copyright Treaty (WIPO Treaty) and the WIPO Performances and Phonograms Treaty.
• More stringent restrictions on compulsory licenses for patents.
• More aggressive patent enforcement. This effort has been observed more broadly in proposals for WIPO and European Union rules on intellectual property enforcement. The 2001 EU Copyright Directive was to implement the 1996 WIPO Copyright Treaty.
• The campaign for the creation of a WIPO Broadcasting Treaty that would give broadcasters (and possibly webcasters) exclusive rights over the copies of works they have distributed.

Panel reports

According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005 page 142,^[16] in the first ten years, 25 complaints have been lodged leading to the panel reports and appellate body reports on TRIPS listed below.

The WTO website has a gateway to all TRIPS disputes (including those that did not lead to panel reports) here [1].

• 2005 Panel Report:^[17]
  • European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs.
• 2000 Panel Report:^[18] Part 2^[19] and 2000 Appellate Body Report^[20]
  • Canada - Term of Patent Protection.
• 2000 Panel Report, Part 1:^[21] and Part 2^[22]
  • United States - Section 110(5) of the US Copyright Act.
• 2000 Panel Report:^[23]
  • Canada - Patent Protection of Pharmaceutical Products.
• 2001 Panel Report:^[24] and 2002 Appellate Body Report^[25]
  • United States - Section 211 Omnibus Appropriations Act of 1998.
• 1998 Panel Report:^[26]
  • India - Patent Protection for Pharmaceutical and Agricultural Chemical Products.
• 1998 Panel Report:^[27]
  • Indonesia - Certain Measures Affecting the Automobile Industry.

Criticism

Since TRIPS came into force it has received a growing level of criticism from developing countries, academics, and non-governmental organizations. Some of this criticism is against the WTO as a whole, but many advocates of trade liberalization also regard TRIPS as bad policy. TRIPS's wealth concentration effects (moving money from people in developing countries to copyright and patent owners in developed countries) and its imposition of artificial scarcity on the citizens of countries that would otherwise have had weaker intellectual property laws, are common bases for such criticisms.

Peter Drahos writes that "It was an accepted part of international commercial morality that states would design domestic intellectual property law to suit their own economic circumstances. States made sure that existing international intellectual property agreements gave them plenty of latitude to do so."^[28]

Daniele Archibugi and Andrea Filippetti^[29] argue that the importance of TRIPS in the process of generation and diffusion of knowledge and innovation has been overestimated by both their supporters and their detractors. Claude Henry and Joseph E. Stiglitz^[30] argue that the current intellectual property global regime may impede both innovation and dissemination, and suggest reforms to foster the global dissemination of innovation and sustainable development.

See also

• List of parties to the TRIPS Agreement

Related treaties and laws

• Anti-Counterfeiting Trade Agreement (ACTA)
• EU Directive on the enforcement of intellectual property rights (IPRED)
• Patent Law Treaty (PLT)
• Substantive Patent Law Treaty (SPLT)
• Uruguay Round Agreement Act of the United States (URAA)

Related organizations

• Intellectual Property Committee
• World Trade Organization
• 
  

References

1. Jump up^ "WTO TRIPS implementation". International Intellectual Property Alliance. Retrieved22 May 2012.
2. Jump up^ See TRIPS Art. 1(3).
3. Jump up^ Farah, Paolo Davide & Cima, Elena (2010) 'SSRN.com China’s Participation in the World Trade Organization: Trade in Goods, Services, Intellectual Property Rights and Transparency Issues" in Aurelio Lopez-Tarruella Martinez (ed.), El comercio con China. Oportunidades empresariales, incertidumbres jurídicas, Tirant lo Blanch, Valencia (Spain) 2010, pp. 85–121. ISBN 978-84-8456-981-7.
4. Jump up^ "intellectual property (TRIPS) - agreement text - standards". WTO. 1994-04-15. Retrieved 2012-04-16.
5. Jump up^ World Trade Organization, "Part II — Standards concerning the availability, scope and use of Intellectual Property Rights; Sections 5 and 6", Agreement on Trade-Related Aspects of Intellectual Property Rights
6. Jump up^ World Trade Organization, "Part I — General Provisions and Basic Principles",Agreement on Trade-Related Aspects of Intellectual Property Rights
7. Jump up^ cf. Timmermann, Cristian, and Henk van den Belt. 2013. Intellectual property and global health: from corporate social responsibility to the access to knowledge movement. Liverpool Law Review 34 (1):47-73. also available at http://edepot.wur.nl/252885
8. Jump up^ World Trade Organization (1 September 2003), Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health
9. Jump up^ World Trade Organisation, IP - http://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm
10. Jump up^ IP Justice policy paper for the WIPO development agenda, IP Justice
11. Jump up^ Trade and Health. McGill-Queen's University Press. 2007. p. 33. |first1= missing|last1= in Authors list (help)
12. Jump up^ Musungu, Sisule F.; Oh, Cecilia (August 2005), The use of flexibilities in TRIPS by developing countries: can they promote access to medicines?, Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH)
13. Jump up^ Finger, J. Michael (2000). "The WTO's special burden on less developed countries"(PDF). Cato Journal 19 (3).
14. Jump up^ Banerjee and Nayak, Effects of Trade Related Intellectual Property Rights on the R&D Expenditure of Indian Pharmaceutical Industry,2014 'Journal of Pharmaceutical Health Services Research.
15. Jump up^http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195390124.001.0001/acprof-9780195390124-chapter-8
16. Jump up^ World Trade Organization (2005). "Annual Report 2005".
17. Jump up^ "2005 News items - Panel reports out on geographical indications disputes". WTO. 2005-03-15. Retrieved 2012-04-16.
18. Jump up^ http://www.wto.org/english/tratop_e/dispu_e/1391da.pdf
19. Jump up^ http://www.wto.org/english/tratop_e/dispu_e/1391db.pdf
20. Jump up^ http://www.wto.org/english/tratop_e/dispu_e/170abr_e.pdf
21. Jump up^ http://www.wto.org/english/news_e/news00_e/1234da.pdf
22. Jump up^ http://www.wto.org/english/news_e/news00_e/1234db.pdf
23. Jump up^ http://www.worldtradelaw.net/reports/wtopanelsfull/canada-pharmaceuticals(panel)(full).pdf
24. Jump up^ http://www.wto.org/english/tratop_e/dispu_e/176r_e.pdf
25. Jump up^ http://www.wto.org/english/tratop_e/dispu_e/176abr_e.pdf
26. Jump up^ http://www.worldtradelaw.net/reports/wtopanelsfull/india-patents(panel)(ec)(full).pdf
27. Jump up^ http://www.worldtradelaw.net/reports/wtopanelsfull/indonesia-autos(panel)(full).pdf
28. Jump up^ Drahos with Braithwaite, Information Feudalism, New Press 2002, p38
29. Jump up^ Archibugi, D. and Filippetti, A. (2010) 'The globalization of intellectual property rights: Four learned lessons and four thesis', Journal of Global Policy, 1: 137-49.
30. Jump up^ Henry, C. and Stiglitz, J. (2010) 'Intellectual Property, Dissemination of Innovation and Sustainable Development', Journal of Global Policy, 1: 237-51.

Source

• Braithwaite and Drahos, Global Business Regulation, Cambridge University Press, 2000
• Westkamp, 'TRIPS Principles, Reciprocity and the Creation of Sui-Generis-Type Intellectual Property Rights for New Forms of Technology' [2003] 6(6) The Journal of World Intellectual Property 827-859, ISSN: 1422-2213
• Banerjee and Nayak, 'Effects of trade related intellectual property rights on the research and development expenditure of Indian pharmaceutical industry' [2014] 5 Journal of Pharmaceutical Health Services Research 89-94.

External links

• TRIPS agreement (PDF version)
• Agreement on Trade-Related Aspects of Intellectual Property Rights (html version)
• World Trade Organization links
  • World Trade Organization - Official Text
  • World Trade Organization - TRIPs gateway
• Audio presentation by Professor Susan Sell, George Washington University, on intellectual property rights in the global context.
• WTO TRIPS Agreement profile on database of Market Governance Mechanisms

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure

The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, or Budapest Treaty, is an internationaltreaty signed in Budapest, Hungary, on April 28, 1977. It entered into force on August 9, 1980, and was later amended on September 26, 1980. The treaty is administered by theWorld Intellectual Property Organization (WIPO).

As of 2014, 79 countries were party to the Budapest Treaty.^[1] The accession to the Treaty is open to States party to the Paris Convention for the Protection of Industrial Propertyof 1883. The African Regional Industrial Property Organization (ARIPO), the Eurasian Patent Organization (EAPO) and the European Patent Organisation (EPO) have filed a declaration of acceptance under Article 9(1)(a)^[2] of the Treaty.

The treaty allows "deposits of microorganisms at an international depositary authority to be recognized for the purposes of patent procedure".^[3] Usually, in order to meet the legalrequirement of sufficiency of disclosure, patent applications and patents must disclose in their description the subject-matter of the invention in a manner sufficiently clear and complete to be carried out by the person skilled in the art (see also: reduction to practice). When an invention involves a microorganism, completely describing said invention in the description to enable third parties to carry it out is usually impossible. This is why, in the particular case of inventions involving microorganisms, a deposit of biological material must be made in a recognised institution. The Budapest Treaty ensures that an applicant, i.e. a person who applies for a patent, needs not to deposit the biological material in all countries where he/she wants to obtain a patent. The applicant needs only to deposit the biological material at one recognised institution, and this deposit will be recognised in all countries party to the Budapest Treaty.

International depositary authority

The deposits are made at an international depositary authority (IDA) in accordance with the rules of the Treaty on or before the filing date of the complete patent application. Article 7 of the Budapest treaty outlines the requirements for a facility to become an International Depositary Authority. As of March 1, 2008, there were 37 IDAs in approximately 20 countries worldwide.^[3]

Depositable subject matter

IDA's have accepted deposits for biological materials which do not fall within a literal interpretation of "microorganism". The Treaty does not define what is meant by “microorganism.”

The range of materials able to be deposited under the Budapest Treaty includes:

• cells, for example, bacteria, fungi, eucaryotic cell lines, plant spores;
• genetic vectors (such as plasmids or bacteriophage vectors or viruses) containing a gene or DNA fragments;
• organisms used for expression of a gene (making the protein from the DNA).

There are many types of expression systems: bacterial; yeast; viral; plant or animal cell cultures;

• yeast, algae, protozoa, eucaryotic cells, cell lines, hybridomas, viruses, plant tissue cells, spores, and hosts containing materials such as vectors, cell organelles, plasmids, DNA, RNA, genes and chromosomes;
• purified nucleic acids; or
• deposits of materials not readily classifiable as microorganisms, such as “naked” DNA, RNA, or plasmids

References

1. Jump up^ WIPO web site, Contracting Parties > Budapest Treaty (Total Contracting Parties : 79). Consulted on 15 January 2014.
2. Jump up^ WIPO web site, Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, Article 9 Intergovernmental Industrial Property Organizations
3. ^ Jump up to:^a b WIPO web site, Summary of the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), retrieved on October 21, 2008

External links

• Budapest Treaty on WIPO web site
  • Contracting States
• The Budapest Treaty and Australian Patents (IP Australia)
• A Short Guide to International IPR Treaties (US government)

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure

Treaty	Full text of the Budapest Treaty [PDF] Regulations under the Budapest Treaty [PDF] Guide to the Deposit of Microorganisms under the Budapest Treaty Additional Information: - Summary - WO/INF/12 [PDF] - WIPO Handbook on Intellectual Property [PDF]
Members	Contracting Parties [PDF] International Depositary Authorities (IDAs) - List of IDAs [PDF] - Information on Kinds of Microorganisms Accepted and Amount of Fees Charged by IDAs [PDF] Members of the Budapest Union Assembly Notifications Statistics - Statistics on Contracting Parties - Statistics on Microorganisms

Patent Processes Around the World

Patent Processes Around the World

IN CHINA:

IN KOREA:

IN EU:

IN JAPAN:

us

India

Overview of the Patent System in Korea

 South Korea

http://www.kipo.go.kr/kpo/user.tdf?a=user.english.main.BoardApp&c=1001

The Korean Intellectual Property Office (KIPO) is the patent office and intellectual property office of South Korea. In 2000, the name of the office was changed from “Korean Industrial Property Office” to “Korean Intellectual Property Office”.^[1] It is located in Daejeon Metropolitan City.^[2]

References

1.  KIPO web site, KIPO’s history. Consulted on January 20, 2008.
2.  KIPO web site, Contact Us. Consulted on January 20, 2008.

External links

• Korean Intellectual Property Office, in English
• Korea Intellectual Property Rights Information Service (KIPRIS), in English
  • Patent search database in KIPRIS, in English
  • K2E-PAT Interface in KIPRIS (wherein “K2E-PAT” stands for “Korean to English Automatic Machine Translation”, see European Patent Office, “Lost in translation? Get the right type of Korean patent translation for your needs”, Patent Information News, Issue 1, 2010, p. 4)
• Information about patent law in South Korea on the European Patent Office web site

Overview of the Patent System in Korea

History of the Korean patent system

What is a patent?

Purpose of the patent system

Requirements for acquiring patent rights

Effects and term of a patent right

Information on patent applications

First-to-file rule and first-to-invent rule

Inventions and devices

Patent examination system

Accelerated examination system

Deferred examination system

Divisional application

Converted application

Priority claim under treaty

Claim for domestic priority

Ex officio amendment

Request for reexamination (reexamination before a trial)

Pendency period

Korean Intellectual Property Office

http://www.kipris.or.kr/enghome/main.jsp

Patent Patent Search Websites; IP Related Organizations in Korea …

http://engpat.kipris.or.kr/engpat/searchLogina.do?next=MainSearch

Searching in databases – Korea

Tips & tricks for searching in databases
Easy, step-by-step instructions on how to use official Korean databases. Click on the links below to download the respective search guides.

Number search and document retrieval

• Retrieving Korean full text data from KIPRIS (PDF, 556 KB)
• NEW: “Patent of my concern” – free monitoring tool for Korean publications in KIPRIS (PDF, 823 KB)
  NEW: Searching Korean prior art using the ‘cross lingual retrieval’ function in KIPRIS (PDF, 234 KB)

English machine translations

• NEW: Retrieving free English machine translations in KIPRIS (PDF, 650 KB)

Legal status information

• Retrieving detailed English legal status information from KIPRIS (PDF, 246 KB)
• Retrieving information on fee payment from KIPRIS (PDF, 557 KB)
• Finding cited documents on KIPRIS (PDF, 457 KB)
• Retrieving patent term extension information from KIPRIS (PDF, 471 KB)
• Finding information on divisional applications in KIPRIS (PDF, 410 KB)
• Retrieving information on inventors, applicants and representatives in KIPRIS (PDF, 158 KB)
• NEW: “Super citations”: basic search tool for cited documents in KIPRIS (PDF, 447 KB)

Searching trade marks and designs

• Searching for trade mark information on KIPRIS (PDF, 531 KB)
• Searching for design information on KIPRIS (PDF, 515 KB)

Searching information on pharmaceutical patents

• Searching in the “green list” for linkage patents (PDF, 81 KB)