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Exceptions To Trips Agreement

The TRIPS Agreement states that it must be possible for all inventions to be protected by a patent for 20 years, whether it is a product (e.g. B a drug) or a process (a process for manufacturing an ingredient for a drug). To qualify for a patent, an invention must be new, be an inventive step and be industrially applicable. In addition, patented inventions must be disclosed so that others can study the invention even if it is patented. Ministerial Declaration on TRIPS and Public Health adopted on 14 November 2001 (Doha Declaration) A 2003 agreement relaxed the requirements of the internal market and allows developing countries to export to other countries in national health difficulties as long as the drugs exported are not part of a trade or industrial policy. [10] Drugs exported under such a regime may be packaged or coloured differently to prevent them from harming the markets of industrialized countries. Patents provide the patent owner with the legal means to prevent others from making, using or selling the new invention for a limited period of time, subject to a number of exceptions. Patents are not marketing authorizations. The Agreement on trade aspects of intellectual property rights (TRIPS) is an international agreement between all member states of the World Trade Organization (WTO). It establishes minimum standards for the regulation of different forms of intellectual property (IP) by national governments, as applied to nationals of other WTO member countries. [3] TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990[4] and is managed by the WTO. This decision authorises, on behalf of the European Community (now the EU), the Agreement establishing the WTO.

The general exemption clauses of the World Trade Organization`s TRIPS Agreement allow for derogations from copyright and trademark, design and patent rights. These clauses aim to facilitate access to different forms of proprietary knowledge and thus promote the interdependent pillars of sustainable development: economic progress, the realization of human rights and the preservation of the environment. In this book, Edson Beas Rodrigues, Jr., argues that the TRIPS Agreement, as currently constituted, does not impede the introduction of exceptions to intellectual property rights which, in order to promote vital socio-economic interests such as the freedom to engage in creative and inventive activities, freedom of expression, the strengthening of free competition and the improvement of access to educational materials for under-privileged students and to knowledge technologies. they were developed for humanitarian purposes. The most relevant provision with regard to COVID-19 is Article 73(b)(iii) of the TRIPS Agreement, which reflects Article XXI(b)(iii) of the GATT. Article 73(b)(iii) allows a State to `take all measures it deems necessary to protect its essential security interests` during the `period of war or any other emergency in international relations`. Until recently, the exact scope of this security exemption was unclear and a number of States considered these exceptions to be „self-condemnable“ and not justiciable. Fortunately, Article XXI(b)(iii) of the GATT and Article 73(b)(iii) of the TRIPS Agreement have recently been examined and interpreted by two WTO dispute settlement bodies.

Article XXI(b)(iii) of the GATT has been interpreted in Russia – Transit Traffic (2019), while Article 73(b)(iii) of the TRIPS Agreement in Saudi Arabia – Intellectual Property Rights (2020) has been interpreted. These two decisions have been discussed here and here. Governments also play a supervisory role and can act to prevent patent holders from abusing these rights (anti-competitive practices) or hindering technology transfer. The TRIPS Agreement provides for limited exceptions to patent rights. Such derogations must not inappropriately preclude the normal use of the patent. . . .