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TRIPS agreement: Mechanism for homogeneity in the Intellectual property


The TRIPS agreement was supposed to bring homogeneity in the Intellectual property regime of the developing & the developed world. However, it has also brought both of them at a level of confrontation against each other. Discuss.

Ans: The TRIPS agreement that was signed under a package deal of Uruguay round of WTO to reduce barriers to international trade, has not taken away from the WTO member states, the right to independently adopt IPR laws. It has actually enforced all the states to frame the policy that should provide the minimum standards of protection as introduced in the agreement.

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  1. Weak IP v/s strong IP
    The developing world favors weak I.P. protection to diffuse knowledge & absorb the technology brought in by foreign MNCs in their domestic economy. Since TRIPS agreement enforces minimum standards of protection, it leaves a lot of room to enlarge the scope of enforcing strong IP standards by the developed nations in the other countries where they want to invest. (which is clearly evident from TPP deal). The developing countries, find it hard to justify that a strong IP will boost their economy in a long run whereas developed nations, that control majority of world trade are working in the opposite direction.
  2. Equal protection on all categories
    The TRIPS agreement enforces equal protection for all the categories of inventions. It also doesn’t contain the mechanism to rank & reward the patent holder based on socio-economic utility of the patent. The developing countries therefore believe that this period of monopoly of 20 years, awarded to patent holder is largely an arbitrary political choice & this can be justified only in certain categories of inventions & not for all. (For example, before India signed TRIPS agreement, India too allowed only process patents, rewarded for only 7 years in items of basic needs like food & nutrition, medicine, drugs & chemicals like pesticides, fungicides, insecticides, herbicides etc. compared to product patents in other fields)
  3. Since the developing states who have signed the TRIPS agreement have to allow the patent holder monopoly rights for 20 years, they have resorted to other flexibilities like Compulsory licensing to balance society’ interest at the cost of the rights of patent holder which is usually a MNC from the developed world.
  4. The TRIPS agreement allows the member states to use the flexibility only in certain situations that constitute national emergency. Since there is no specificity of what constitutes national emergency, many countries have repeatedly used these flexibilities to restrict full exploitation of patents rights held by foreign people & foreign MNCs on the grounds of protection to environment, morality, public interest like health etc.
    Countries like USA have therefore repeatedly used the dispute settlement body of WTO to enforce the principle of national treatment & Most favored Nation against such countries, so called to be in the developing stage.
  5. TRIPS agreement allows sui-generis system to protect the plant varieties. Lack of specificity has allowed many member states to resort to alternative ways also called as Farmer’s rights or plant breeders rights. This has completely or partially excluded the patent-ability on microbiological processes, living organisms like G.M. plants, animals & microorganisms that is allowed in developed world.
  6. The TRIPS agreement calls for the developed states to take steps to foster technology xfer to LDCs without specifying how this is to be achieved & how far they must go to help LDCs. Implementation of these provisions has not been very effective & to the level of satisfaction of LDCs or developing countries creating a clear N-S divide.
  7. The developed countries have a very strong infra to support R&D which is very little found in developing nations or LDCs. With the increasing number of patents filed by people in the developed world in fields like genetic engineering & biotechnology, on products that constitute living varieties of plants & animals vital for food security, developing countries fear that this will monopolize the food supply chain in the hands of few MNCs working from the developed world.
  8. Biodiversity rich countries are also found rich in Traditional knowledge that is preserved & passed on from generations to generations by local population in format, that is not available in written material or digitally.
  9. Bio-piracy of such knowledge by companies located in the developed world without paying royalty to the source country or local population, from where it has been copied has become a source of friction between the developed world & the biodiversity rich countries, that are also coming in the class of developing world.

Courtesy:

Tufel Noorani (Faculty of Science & Tech.)

SPIPA (Ahmedabad)

PDPU (Gandhinagar)

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