Unit VI - IPR PDF

Unit - VI
Dr. Y.Rajasri
Associate Professor,
Department of Biotechnology,
SNIST
WIPO
Mission and Activities

GATT and TRIPS
Indian Position on WTO and strategies
Indian IPR legislations commitments to WTO
patent ordinance and the bill
Draft of national Intellectual property Policy
Case study on IP
SNIST/BT/Ravindra/IPR-6
General Agreement on Tariffs and Trade (GATT)

General Agreement on Tariffs and Trade (GATT) was
a multilateral agreement regulating international
trade.
According to its preamble, its purpose was the
"substantial reduction of tariffs and other trade
barriers and the elimination of preferences, on a
reciprocal and mutually advantageous basis."
It
was
negotiated
during
the
United
Nations Conference on Trade and Employment and
was the outcome of the failure of negotiating
governments to create the International Trade
Organization(ITO).
GATT
was signed by 23 nations in Geneva on

October 30, 1947 and took effect on
January 1, 1948.
It lasted until the signature by 123 nations
in Marrakesh on April 14, 1994 of the
Uruguay
Round
Agreements,
which
established
the
World
Trade
Organization (WTO) on January 1, 1995.
General Agreement on Tariffs and Trade

(GATT)
GATT's main objective

To provide an international forum
That encouraged free trade between member states
By regulating and reducing tariffs on traded goods
Providing a common mechanism for resolving trade
disputes.
The average tariff levels for the major GATT

participants were about 22 percent in 1947.
As a result of the first negotiating rounds, tariffs
were reduced in the GATT core of the United
States, United Kingdom, Canada, and Australia,
relative to other contracting parties and non-GATT
participants.
By the Kennedy round (1962-67), the average
tariff levels of GATT participants were about
15%.After the Uruguay Round, tariffs were under
5%.
Location
: Geneva, Switzerland
Established : 1 January 1995
Created by : Uruguay Round negotiations (198694)
Membership : 153 countries on 10 February 2011
Budget
Secretariat staff: 640
Head
: 196 million Swiss francs for 2011
: Roberto Azevdo(Director-General)
It is an is an international organization which deals with trade

between nations.
The goal is to help producers of goods and services,

exporters, and importers conduct their business.
It is a forum for governments to negotiate trade agreements.

to lower trade barriers among member countries to ensure
that trade is free and predictable.
It is a place for them to settle trade disputes.
It operates a system of trade rules.
Trade between countries should be free from discrimination.
It promotes economic growth and prosperity
Essentially, the WTO is a place where member governments

try to sort out the trade problems they face with each other.
Administering WTO trade agreements

Forum for trade negotiations
Handling trade disputes
Monitoring national trade policies
Technical assistance and training for developing
countries
Cooperation with other international
organizations
10
The
three key agreements of WTO cover
trade
in goods (the General Agreement on

Tariffs and Trade, GATT),
trade in services (the General Agreement on
Trade in Services, GATS) and
trade in ideas (the Agreement on TradeRelated Aspects of Intellectual Property,
TRIPS).
11
Agreement on Trade-Related
Intellectual Property Rights
Aspects
of
The
TRIPS Agreement is Annex 1C of the

Marrakesh Agreement Establishing the World
Trade Organization, signed in Marrakesh,
Morocco on 15 April 1994 and came into effect
from 1st Jan 1995.
The
Agreement covers most forms of intellectual

property
including
patents,
copyright,
trademarks, geographical indications, industrial
designs, trade secrets, and exclusionary rights
over new plant varieties.
12
The
TRIPS agreement covers five broad issues:
basic
principles
protection to intellectual property
enforcement of intellectual property
settlement of disputes on intellectual
property between members of the WTO
special transitional arrangements during
the period when the new system is being
introduced
13
Desiring to reduce distortions and impediments to

international trade, and taking into account the need to
promote effective and adequate protection of
intellectual property rights, and to ensure that measures
and procedures to enforce intellectual property rights do
not themselves become barriers to legitimate trade;
Recognizing, to this end, the need for new rules and

disciplines concerning:
(a) the applicability of the basic principles of GATT 1994

and of relevant international intellectual property
agreements or conventions;
(b) the provision of adequate standards and principles

concerning the availability, scope and use of traderelated intellectual property rights;
14
(c) the provision of effective and appropriate means for

the enforcement of trade-related intellectual property
rights, taking into account differences in national legal
systems;
(d) the provision of effective and expeditious procedures

for the multilateral prevention and settlement of disputes
between governments; and
(e) transitional arrangements aiming at the fullest

participation in the results of the negotiations;
Recognizing the need for a multilateral framework of

principles, rules and disciplines dealing with international
trade in counterfeit goods;
Recognizing that intellectual property rights are private

rights;
15
Recognizing the underlying public policy objectives of

national systems for the protection of intellectual
property, including developmental and technological
objectives;
Recognizing also the special needs of the least-developed

country Members in respect of maximum flexibility in the
domestic implementation of laws and regulations in order
to enable them to create a sound and viable technological
base;
Emphasizing the importance of reducing tensions by

reaching strengthened commitments to resolve disputes
on trade-related intellectual property issues through
multilateral procedures;
Desiring to establish a mutually supportive relationship

between the WTO and the World Intellectual Property
Organization (referred to in this Agreement as WIPO) as
well as other relevant international organizations;
16
Part
Section
I
II
1
2
3
4
5
6
7
8
III
1
2
3
4
5
IV
V
VI
VII
Articles
Content
Provisions
General
and
Basic
1-8
Principles
Standards Concerning The Availability, Scope
and Use of Intellectual Property rights
9-14
Copyright and Related Rights
15-21
Trademarks
22-24
Protection
of
Geographical
Indications
25-26
Industrial Designs
27-34
Patents
35-38
Layout Designs
(Topographies) of Integrated Circuits
39
Protection of Undisclosed Information
40
Control of Anti Competitive Practices
in Contractual Licences
Enforcement of Intellectual Property Rights
41
General Obligations
42-49
Civil and Administrative Procedures
and Remedies
50
Provisional Measures
51-60
Special
Requirements
Related
to
Border Measures
61
Criminal Procedures
62
Acquisition
and
Maintenance
of
Intellectual
Property
Rights
and
Related Inter-Parties Procedures
63-64
Dispute Prevention and Settlement
65-67
Transitional Arrangements
68-73
Institutional
Arrangements;
Final
Provisions
17
It was established in 1970, with a mandate from

its Member States to promote the protection of
intellectual property throughout the world
through cooperation among States and in
collaboration
with
other
international
organizations.
The Organization became a specialized agency of

the United Nations in 1974. The Director General
is Francis Gurry.
18
The
World
Intellectual
Property
Organization (WIPO) is one of the
17 specialized agencies of the United
Nations.
WIPO was created in 1967 "to encourage
creative activity, to promote the protection
of intellectual property throughout the
world."
WIPO currently has 189 member states,
administers 26 international treaties, and is
headquartered in Geneva, Switzerland.
19
Based in Geneva, with an international staff of

some 1,300 employees, WIPO counts 184 Member
States more than 90 percent of the worlds
countries.
WIPO is dedicated to developing a balanced and

accessible international intellectual property (IP)
system, which rewards
creativity,
stimulates innovation and
contributes to economic development while safeguarding the
public interest.
20
To promote through international cooperation the

creation, dissemination, use and protection of
works of the human spirit for the economic,
cultural and social progress of all mankind.
WIPOs objectives are to promote intellectual

property protection throughout the world through
cooperation among states and, where appropriate,
in collaboration with any other international
organization.
21
1.
Norm setting - Preparing for new treaties

and developing and administering treaties that
are in force
2.
Registration services and arbitration and

mediation services
3.
Intellectual property for development
22
WIPO administers a number of international unions or treaties

in the area of intellectual property, such as the Paris and
Berne Conventions.
WIPO also aims to ensure administrative cooperation among

the intellectual property unions created by the Paris and
Berne Conventions and sub-treaties concluded by the
members of the Paris Union.
The administration of the unions created under the various

conventions is centralized through WIPOs secretariat, the
International Bureau.
The International Bureau also maintains international

registration services in the field of patents, trademarks,
industrial designs and appellations of origin.
23
As
part of the United Nations system of

specialized agencies, WIPO serves as a forum
for its Member States to establish and
harmonize rules and practices for the
protection of intellectual property rights.
WIPO
also services global registration

systems for trademarks, industrial designs
and appellations of origin, and a global filing
system for patents.
24
Most industrialized nations have intellectual

property protection systems that are centuries old.
Many new and developing countries, however, are

in the process of building up their patent,
trademark and copyright legal frameworks and
systems.
With the increasing globalization of trade and rapid

changes in technological innovation, WIPO plays a
key role in helping these new systems to evolve
through
treaty
negotiation,
registration,
enforcement, legal and technical assistance and
training in various forms.
25
An
agreement on cooperation between WIPO

and the WTO came into force on 1 January
1996.
The
agreement provides cooperation in three

main areas:
notification of, access to and translation of national
laws and regulations
implementation of procedures for the protection of
national emblems
and technical cooperation.
26
Introduction
of Patent Law in India took place

in 1856 whereby certain exclusive privileges to
the inventors of new inventions were granted
for a period of 14 years.
Presently,
the patent provisions in India are

governed by the Patents Act, 1970.
The
Indian Patents Act is fully compatible with

the TRIPS Agreement, following amendments to
it; the last amendment being in 2005 by the
Patents (Amendment) Act, 2005.
27
The Copyright Act, 1957 came into effect from

January 1958. This Act has been amended five
times since then, i.e., in 1983, 1984, 1992, 1994
and 1999, with the amendment of 1994 being the
most substantial.
India is a member of the Berne Convention for

the Protection of Literary and Artistic Works of
1886 (as modified at Paris in 1971), and the
Universal Copyright Convention of 1951. Though
India is not a member of the Rome Convention of
1961, the Copyright Act, 1957 is fully compliant
with the Rome Convention provisions.
28
In
India, the Trade Marks Act, 1999 was

passed on 30th December 1999 and came
into force on 15th September 2003.
The
Trade Marks Act, 1999 is in coherence

with the provisions of the TRIPS Agreement.
The
new Act provides for registration of

trademarks for services in addition to goods,
and has increased the period of registration
and renewal from 7 yrs to 10 yrs.
29
In
India, the Geographical Indications of

Goods (Registration and Protection) Act, 1999
came into force with effect from 15th
September 2003.
This
Act seeks to provide for the registration

and protection of GI relating to goods in
India. The Controller General of Patents,
Designs and Trade Marks is also the registrar
for the GI, and the GI Registry is located at
Chennai.
30
India has amended its national legislation

(Designs Act, 2000) to provide for minimal
standards to protect Industrial designs.
The essential purpose of the Designs Act, 2000 is

to promote and protect the design element of
industrial production. It is also intended to
promote innovative activity in the field of
industries. The present legislation is aligned with
the changed technical and commercial scenario
and conforms to the international trends in
design administration.
31
The
basis for protecting integrated circuit

designs (Topographies) in the TRIPS Agreement
is the Washington Treaty on Intellectual
Property in Respect of Integrated Circuits,
1989. India is a signatory to this international
agreement.
In India, the IPRs on the layout designs of

integrated circuits are governed by the
Semiconductor Integrated Circuits LayoutDesign Act, 2000.
32
Trade Related Aspects of Intellectual Property Rights: (TRIPS)

India is a signatory of TRIPs in the Uruguay Round agreement of 1995.
India has enacted fully TRIPs - compliant
Trademarks Act, Copyright Act, Designs Registration Act, Geographical Indications Act
and Protection of Layouts for Integrated Circuits Act.
A novel Plant Varieties Protection and Farmers Rights Act 2001 and the Bio-diversity Act
2002.
Out of seven IPRs, there is a dispute only on providing product patent in food,
drugs & chemicals.
Indian patent law offers protection only to processes and not product patent
for in respect of these.
The Indian Patent Act of 1970
Indian patent law has to be amended suitably to provide for product patents
for duration of protection for 20 years in place of 5 to 7 years for processed
foods, drugs and chemicals and 14 years for other sectors.
33
On 7th September 1998, India deposited its instrument

of accession to the PCT and is bound by Patent Cooperation treaty as 98th contracting State of PCT from
7th December 1998.
Furthermore, nationals and residents of India are

entitled to file International applications for patents
under PCT at Patent office, Kolkatta as receiving office.
With effect from 19th November 1999 Patent office

branches at Mumbai, Chennai & New Delhi are also
receiving the PCT applications allowing the applicants
to file application at their regional Patent office.
34
As
on date of Indias accession to PCT, there

were nine International Search Authorities
(ISAs)
&
Eight
International
Patent
Examination Authorities (IPEAs).
Govt.
of India opted for all of them as

competent ISAs & IPEs, providing maximum
options to its applicants. As on today India is
the only State having maximum options.
Four
out of Top ten PCT applicants for the

year 2002 are from India.
35
International agreement administered by WIPO
for the filing, searching, publication and examination of

international applications.
The PCT makes it easier to obtain patents in the Contracting

States by providing for the filing of one international
application, which may be subsequently prosecuted in the
different designated national or regional Offices of States
party to the PCT.
However, even under the PCT, the granting of patents is left

to those designated Offices.
36
There are three international intellectual property

treaties which are of particular importance for the
protection of biotechnology:
The Paris Convention for the Protection of Industrial

Property
The Budapest Treaty on the International Recognition of

the Deposit of Microorganisms for the Purposes of
Patent Procedure (the Deposit Treaty) and
The Patent Cooperation Treaty (PCT) the PCT simplifies

the process of filing patent applications simultaneously
in a number of countries.
37
Berne Convention: for the Protection of Literary and

Artistic Works
Rome convention : for the Protection of Performers,

Producers of Phonograms and Broadcasting Organizations
(October 26, 1961)
Budapest Treaty :International Recognition of the Deposit

of Microorganisms for the Purposes of Patent Procedure,
CBD :is an international treaty to sustain the diversity
of life on Earth.
UPOV convention : Convention on Plant Variety
Protection (PVP) of crops and flowers
38
REGULATED TRADING IN WILDLIFE PRODUCTS
Convention
on International Trade in
Endangered Species of Wild Fauna and
Flora (CITES). 1973
CITES
is the most widely accepted of

international treaties on the conservation of
natural resources.
The
number of Parties signed in 1992 = 113

39
The
convention attempts to prevent commercial

trade in species of wildlife which are in danger of
extinction and to control the trade in species which
might become so if their trade was allowed to
continue unchecked
The
convention covers not only live animals and

plants but also products and derivatives of the
species listed.
These
range from whole skins and manufactured

leather products, through ivory carvings, tortoise
shell jewelry, meat, seeds, and feathers to
medicinal products extracted from plants such as
ginseng
40
New Delhi Aug28, 2002. Central Bureau of Investigation officials

in New Delhi nabbed Shekhar Verma, a former employee of
Mumbai-based Geometric Software Solutions Company and a
computer engineer from the Indian Institute of Technology,
Kharagpur.
It turned out that Verma was accused of stealing $60 million

worth of source code of a software product of Geometric
Software's US-based client, SolidWorks, and trying to sell them
to other companies for a fortune.
The American firm has the exclusive rights over the software.
41
Calcutta,
7 April 2000:
The
Enforcement Branch, Calcutta police with

the assistance from Nasscom and BSA, seized
pirated software worth of Rs. 2.61 crore (US$
6,08,000) from companies while conducting raids
in the city.
persons, including owners, partners and senior

level employees of the companies, were
arrested for this offence.
The
police recovered around 636 CDs, and 2

computers loaded with pirated software.
42
Hyderabad, March 2000: Hyderabad Police, with

assistance from Nasscom (National Association of
Software & Services Companies) and Business
Software Alliance (BSA), seized pirated software
worth of Rs. 75,16,400 (US$ 174,800) from 7
companies at a conducted raid.
13 people, including senior level employees of the

companies, were arrested in this regard.
The Police recovered around 293 CDs, 5 hard disks

and 7 computers loaded with pirated software.
The estimated value of the pirated software was

worth Rs.77 lakh.
43

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Unit - VI

Mission and Activities

General Agreement on Tariffs and Trade (GATT)

was signed by 23 nations in Geneva on

General Agreement on Tariffs and Trade

GATT's main objective

The average tariff levels for the major GATT

Membership : 153 countries on 10 February 2011

Secretariat staff: 640

: 196 million Swiss francs for 2011

It is an is an international organization which deals with trade

The goal is to help producers of goods and services,

It is a forum for governments to negotiate trade agreements.

It is a place for them to settle trade disputes.

It operates a system of trade rules.

Trade between countries should be free from discrimination.

It promotes economic growth and prosperity

Essentially, the WTO is a place where member governments

Administering WTO trade agreements

three key agreements of WTO cover

in goods (the General Agreement on

TRIPS Agreement is Annex 1C of the

Agreement covers most forms of intellectual

TRIPS agreement covers five broad issues:

Desiring to reduce distortions and impediments to

Recognizing, to this end, the need for new rules and

(a) the applicability of the basic principles of GATT 1994

(b) the provision of adequate standards and principles

(c) the provision of effective and appropriate means for

(d) the provision of effective and expeditious procedures

(e) transitional arrangements aiming at the fullest

Recognizing the need for a multilateral framework of

Recognizing that intellectual property rights are private

Recognizing the underlying public policy objectives of

Recognizing also the special needs of the least-developed

Emphasizing the importance of reducing tensions by

Desiring to establish a mutually supportive relationship

It was established in 1970, with a mandate from

The Organization became a specialized agency of

Based in Geneva, with an international staff of

WIPO is dedicated to developing a balanced and

To promote through international cooperation the

WIPOs objectives are to promote intellectual

Norm setting - Preparing for new treaties

Registration services and arbitration and

Intellectual property for development

WIPO administers a number of international unions or treaties

WIPO also aims to ensure administrative cooperation among

The administration of the unions created under the various

The International Bureau also maintains international

part of the United Nations system of

also services global registration

Most industrialized nations have intellectual

Many new and developing countries, however, are

With the increasing globalization of trade and rapid

agreement on cooperation between WIPO

agreement provides cooperation in three

of Patent Law in India took place

the patent provisions in India are

Indian Patents Act is fully compatible with

The Copyright Act, 1957 came into effect from

India is a member of the Berne Convention for

India, the Trade Marks Act, 1999 was