Module 8: International IPR Framework - Assessment

The TRIPS Agreement came into force on January 1, 1995, along with the establishment of the World Trade Organization (WTO). It was negotiated during the Uruguay Round (1986-1994).

The World Trade Organization (WTO) administers the TRIPS Agreement. The TRIPS Council monitors the operation of the Agreement and members' compliance with their obligations.

Article 33 of TRIPS mandates a minimum patent term of 20 years from the filing date. This is one of the key minimum standards established by the Agreement.

Article 31 of TRIPS allows "Other Use Without Authorization of the Right Holder" (compulsory licensing), subject to certain conditions. This is a key flexibility for access to medicines.

The Doha Declaration on TRIPS and Public Health was adopted at the WTO Ministerial Conference in November 2001. It affirmed that TRIPS should not prevent members from taking measures to protect public health.

The National Treatment principle (Article 3 of TRIPS) requires each WTO member to accord to the nationals of other members treatment no less favorable than it accords to its own nationals with regard to IP protection.

Article 31bis (first and only amendment to TRIPS, effective 2017) allows countries to export pharmaceuticals manufactured under compulsory license to countries that lack manufacturing capacity, addressing access to medicines concerns.

The Paris Convention was signed in 1883 and is the oldest and most important international treaty on industrial property (patents, trademarks, industrial designs, etc.).

The Paris Convention provides a 12-month priority period for patents and utility models, and 6 months for trademarks and industrial designs. This allows applicants to file in other member countries while retaining the original filing date.

Under the Paris Convention, the priority period for trademarks and industrial designs is 6 months, while patents and utility models have a 12-month priority period.

The Berne Convention was adopted in 1886 in Berne, Switzerland. It is the foundational international treaty on copyright protection for literary and artistic works.

A key principle of the Berne Convention is automatic protection - copyright protection arises automatically upon creation and fixation of a work, without any formality requirements like registration.

The Berne Convention establishes a minimum copyright term of the author's life plus 50 years. Many countries, including India, have adopted longer terms (life plus 60 years in India).

Article 6bis of the Berne Convention protects moral rights: the right of paternity (to be identified as the author) and the right of integrity (to object to derogatory treatment of the work). These are independent of economic rights.

The Patent Cooperation Treaty (PCT) is an international treaty administered by WIPO that provides a unified procedure for filing patent applications in multiple countries through a single international application.

The PCT was signed in 1970 in Washington, D.C., and came into force in 1978. India became a member of the PCT in 1998.

The general deadline for entering the national phase under PCT is 30 months from the priority date (31 months in some countries). This gives applicants significant time to decide in which countries to seek patent protection.

The ISA provides an International Search Report (ISR) and Written Opinion on the novelty, inventive step, and industrial applicability of the claimed invention. This helps applicants assess patentability before entering national phases.

The Madrid System (comprising the Madrid Agreement and Madrid Protocol) is the primary international system for registering and managing trademarks across multiple countries through a single application filed with WIPO.

India joined the Madrid Protocol on July 8, 2013, making it possible for Indian trademark owners to obtain international registration and for foreign trademark owners to designate India through the Madrid System.

International trademark registrations under the Madrid Protocol are valid for 10 years and can be renewed indefinitely for successive 10-year periods upon payment of the prescribed fees.

The WIPO Copyright Treaty (WCT) was adopted in December 1996 in Geneva. It addresses copyright issues raised by digital technology and the internet, supplementing the Berne Convention.

The WIPO Performances and Phonograms Treaty (WPPT) was adopted in 1996 alongside the WCT. It provides protection for performers and producers of phonograms in the digital environment.

The WCT and WPPT are commonly referred to as the "Internet Treaties" because they address copyright and related rights issues in the digital/internet environment, including technological protection measures and rights management information.

The Marrakesh Treaty was adopted on June 27, 2013, in Marrakesh, Morocco. It requires contracting parties to provide copyright exceptions for the production of accessible format copies for visually impaired persons.

India ratified the Marrakesh Treaty in June 2014, becoming one of the first countries to do so. India was a strong advocate for the treaty during negotiations.

The Beijing Treaty (2012) provides performers with economic and moral rights over their performances fixed in audiovisual media (films, videos, etc.), addressing the gap left by WPPT which focused on audio performances.

The European Patent Office (EPO) is the executive arm of the European Patent Organisation and grants European patents under the European Patent Convention (EPC).

The European Patent Convention was signed in Munich in 1973 and came into force in 1977. It established the European Patent Organisation and provides a unified procedure for granting patents in Europe.

The European Union Intellectual Property Office (EUIPO), based in Alicante, Spain, is responsible for registering EU trademarks (EUTM) and Registered Community Designs (RCD) that provide protection across all EU member states.

The African Regional Intellectual Property Organization (ARIPO) serves primarily English-speaking African countries. OAPI (Organisation Africaine de la Propriete Intellectuelle) serves French-speaking African countries.

The Unified Patent Court (UPC) became operational on June 1, 2023. It provides a unified court system for patent litigation in participating EU member states and works alongside the Unitary Patent system.

The Hague System provides a mechanism for registering industrial designs in multiple countries through a single application filed with WIPO. India joined the Hague System in 2019.

Under international exhaustion, once a product protected by IP rights is sold anywhere in the world with the right holder's consent, the right holder cannot control further distribution/resale of that specific product in any country.

Parallel imports (also called grey market goods) are genuine products that are imported without authorization from the IP right holder in the importing country. Their legality depends on the exhaustion regime adopted by each country.

Section 107A of the Patents Act, 1970 provides for international exhaustion for patents in India. Importation of patented products that have been lawfully put on the market anywhere is not considered infringement.

Articles 51-60 of TRIPS deal with special requirements related to border measures. They require members to enable right holders to apply to customs authorities to suspend release of goods suspected of being counterfeit or pirated.

In India, Customs authorities handle border enforcement under the Customs Act, 1962 and the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. Right holders can record their IP with customs for enforcement.

ACTA was a controversial plurilateral agreement negotiated between 2008-2011. The European Parliament rejected it in 2012, and it never entered into force as a significant international treaty due to concerns about civil liberties and access to medicines.

TRIPS-plus provisions go beyond TRIPS minimum standards and typically include data exclusivity for pharmaceutical test data, patent term extensions, patent linkage, stronger enforcement, and limitations on compulsory licensing flexibilities.

Data exclusivity provisions protect clinical trial data submitted for regulatory approval, preventing generic manufacturers from relying on that data for a specified period (typically 5-10 years), even if the product is off-patent.

The USMCA (2020) includes extensive IP chapter with copyright term of life plus 70 years, digital trade provisions, and pharmaceutical IP protections, though it reduced some biologics exclusivity provisions from the original TPP.

BITs can protect IP as investment assets, providing protections like fair and equitable treatment and protection against expropriation. Investor-state dispute settlement (ISDS) allows investors to directly sue states, which has implications for IP policy space.

RCEP's IP chapter is generally TRIPS-consistent with some TRIPS-plus elements but provides more flexibility than CPTPP, reflecting the diverse development levels of its 15 member countries across Asia-Pacific.

India has generally sought to preserve TRIPS flexibilities in FTA negotiations, resisting TRIPS-plus provisions like data exclusivity and patent linkage that could affect access to affordable medicines and generic pharmaceutical industry.