Patents And Intellectual Property Rights. (TRIPS & TRIMS)
Intellectual Property Rights (IPR) are set of rights associated with creations of the human mind. An output of the human mind may be attributed with intellectual property rights. These are like any other property, and the law allows the owner to use the same to economically profit from the intellectual work. Broadly IPR covers laws related to copyrights, patents and trademarks. While laws for these are different in different countries, they follow the international legal instruments. The establishment of the Wold Intellectual Property Organization (WIPO) has established the significance of IPR for the economic Growth of nations in the knowledge economy.
Philosophy and background of intellectual property rights
In the middle of the 16th century, Queen Mary was faced with a difficult question that was brought to her by none other than most powerful publishing house in England at the time. The Stationers, like any other craft guild in the business of printing and producing books loved a monopoly in the profits of their books and terribly feared competition. Therefore, they went to Queen Mary with the request of a royal charter. This charter would allow them to seize illicit editions of their books and bar the publication of books unlicensed by the crown. The Queen suddenly thought that this could indeed be a more efficient way to squash sedition and dissent through censorship by puppeteering this craft guild than previous, perhaps less subtle means like torture and death. In 1557, she granted them this early form of a copyright.
Notice how the author or the creator of the work has no place in this agreement and the origins of intellectual property in English law are based on privilege, namely power and profit. This rhetoric, however, changes with the coming of the 18th century and the passing of the Act of Anne in 1707 to one of creativity and Learning. The concern for the author has a steady positivist rise after this in the tug of war over intellectual property. In the case Miller v Taylor in 1769, the author sought to extend copyright to common law. Three judges ruled in favour of this motion and two judges ruled against.
A closer examination at the reasoning provided by the three assenting judges will tell us almost all the philosophical justifications of intellectual property. The first judge called upon his notion of Justice and said it is just that the author control the destiny of his work as it is a product of his labour. The second judge said that extending the copyright would encourage creativity by making the work the creator’s property. The third judge said it is the authors natural right as the work wouldn’t exist if not for the mental labour of the author. Together, justice, incentives and natural rights are the cornerstones of the justifications of intellectual property.
What are Patents?
Patents are a set of exclusive rights granted by a sovereign state to an inventor. These rights are granted for a limited period of time, usually about twenty years. The granting of these rights is in return for public disclosure of the invention.
Criteria for Patentability
Patents protect inventions. These inventions could be either products or processes. All inventions are required to meet the criteria for patentability. These criteria are the presence of a patentable subject matter, novelty, nonobviousness andutility/industrial application. The criterion of an inventive step is particularly important. Mere discoveries are not patentable, and neither are algorithms.
TRIPS agreement
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It sets down minimum standards for the regulation by national governments of many forms of intellectual property (IP) as applied to nationals of other WTO member nations. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994 and is administered by the WTO.
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.
TRIMS agreement
The Agreement on Trade-Related Investment Measures (TRIMs) are rules that apply to the domestic regulations a country applies to foreign investors, often as part of an Industrial Policy. The agreement, concluded in 1994, was negotiated under the WTO’s predecessor, the General Agreement on Tariffs and Trade (GATT), and came into force in 1995. The agreement was agreed upon by all members of the World Trade Organization. Trade-Related Investment Measures is one of the four principal legal agreements of the WTO trade treaty. TRIMs are rules that restrict preference of domestic firms and thereby enable international firms to operate more easily within foreign markets. Policies such as local content requirements and trade balancing rules that have traditionally been used to both promote the interests of domestic industries and combat restrictive business practices are now banned.
In the late 1980s, there was a significant increase in Foreign Direct Investment throughout the world. However, some of the countries receiving foreign investment imposed numerous restrictions on that investment designed to protect and foster domestic industries, and to prevent the outflow of Foreign Exchange reserves. Examples of these restrictions include local content requirements (which require that locally produced goods be purchased or used), manufacturing requirements (which require the domestic manufacturing of certain components), trade balancing requirements, domestic sales requirements, technology transfer requirements, export performance requirements (which require the export of a specified Percentage of production volume), local Equity restrictions, foreign exchange restrictions, remittance restrictions, licensing requirements, and EMPLOYMENT restrictions. These measures can also be used in connection with fiscal incentives as opposed to requirement. Some of these investment measures distort trade in violation of GATT Articles III and XI, and are therefore prohibited.
Until the completion of the Uruguay Round negotiations, which produced a well-rounded Agreement on Trade-Related Investment Measures (hereinafter the “TRIMs Agreement”), the few international agreements providing disciplines for measures restricting foreign investment provided only limited guidance in terms of content and country coverage. The OECD Code on Liberalization-2/”>Liberalization of Capital Movements, for example, requires members to liberalize restrictions on direct investment in a range of areas. The OECD Code’s efficacy, however, is limited by the numerous reservations made by each of the members.
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Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an Environment in which creativity and innovation can flourish.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO members. It was negotiated at the end of the Uruguay Round of multilateral trade negotiations and came into effect on 1 January 1995.
The TRIPS Agreement has been amended several times since its entry into force. The most recent amendment, which entered into force on 26 January 2017, introduced a new provision on geographical indications.
The TRIPS Agreement covers seven main areas of IP: patents, copyrights, trademarks, industrial designs, geographical indications, layout designs of integrated circuits and undisclosed information (trade secrets).
Patents are exclusive rights granted for inventions, which are new, inventive and capable of industrial application. Patents provide an incentive for innovation by allowing inventors to prevent others from using their inventions for a limited period of time.
Copyrights protect original literary, dramatic, musical and artistic works. Copyrights give authors the exclusive right to reproduce, distribute, perform, display and make adaptations of their works.
Trademarks are signs that distinguish the goods or Services of one trader from those of another. Trademarks can be words, logos, images or a combination of these.
Industrial designs protect the appearance of manufactured products. Industrial designs can be registered or unregistered.
Geographical indications are signs that identify a good as originating in a particular place where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
Layout designs of integrated circuits protect the layout of the components, circuitry and other features of an integrated circuit.
Undisclosed information (trade secrets) are confidential information that has commercial value and has been subject to reasonable steps to keep it secret. Trade secrets can include formulas, recipes, business plans, customer lists and other types of information.
The TRIPS Agreement also includes provisions on enforcement of IP rights, dispute settlement and technical cooperation.
The enforcement of IP rights is essential to ensure that IP holders can benefit from their IP. The TRIPS Agreement sets out minimum standards for the enforcement of IP rights, including civil and criminal procedures, border measures and remedies.
The TRIPS Agreement also includes a dispute settlement mechanism that allows WTO members to bring disputes about IP infringement to the WTO.
The TRIPS Agreement also provides for technical cooperation to assist developing and least-developed countries in implementing the Agreement.
The TRIPS Agreement has had a significant impact on the global IP landscape. It has raised the level of IP protection around the world and has helped to promote innovation and creativity. The TRIPS Agreement has also made it easier for businesses to protect their IP rights in foreign markets.
However, the TRIPS Agreement has also been criticized for being too complex and for not adequately addressing the needs of developing countries. The TRIPS Agreement is currently being reviewed by the WTO, and it is likely that some changes will be made to the Agreement in the future.
Overall, the TRIPS Agreement is a landmark agreement that has had a positive impact on the global IP landscape. The Agreement has helped to promote innovation and creativity, and it has made it easier for businesses to protect their IP rights in foreign markets. However, the TRIPS Agreement is not without its flaws, and it is likely that some changes will be made to the Agreement in the future.
What is a patent?
A patent is a right granted by the government to an inventor, giving them the exclusive right to make, use, sell, and import an invention for a limited period of time, in exchange for the public disclosure of the invention.
What is intellectual property?
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
What are the different types of intellectual property?
The main types of intellectual property are patents, copyrights, trademarks, and trade secrets.
What are the benefits of intellectual property?
Intellectual property can provide a number of benefits, including:
- Increased innovation: By providing inventors with exclusive rights to their inventions, patents can encourage them to invest in research and development, leading to new and improved products and services.
- Economic growth: Intellectual property can help to drive economic growth by creating jobs, attracting investment, and boosting exports.
- Competition: By allowing businesses to protect their intellectual property, competition can be encouraged, leading to lower prices and better products for consumers.
- Access to knowledge: By making information about inventions and other intellectual property publicly available, patents and other IP rights can help to promote the dissemination of knowledge and technology.
What are the challenges of intellectual property?
One of the main challenges of intellectual property is the issue of counterfeiting. Counterfeiting is the unauthorized use of intellectual property rights, such as trademarks, copyrights, and patents. It can have a significant impact on businesses, consumers, and the economy.
Another challenge of intellectual property is the issue of piracy. Piracy is the unauthorized copying of intellectual property, such as music, movies, and Software. It can also have a significant impact on businesses, consumers, and the economy.
What are the international agreements on intellectual property?
There are a number of international agreements on intellectual property, including the following:
- The Paris Convention for the Protection of Industrial Property (1883)
- The Berne Convention for the Protection of Literary and Artistic Works (1886)
- The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994)
These agreements set out minimum standards for the protection of intellectual property in member countries.
What is the future of intellectual property?
The future of intellectual property is likely to be shaped by a number of factors, including the following:
- The rise of new technologies: New technologies, such as Artificial Intelligence and blockchain, are likely to have a significant impact on intellectual property. For example, artificial intelligence could be used to create new types of inventions, while blockchain could be used to track and manage intellectual property rights.
- The changing global economy: The global economy is becoming increasingly interconnected, which is likely to lead to changes in the way that intellectual property is protected and enforced.
- The rise of emerging markets: Emerging markets are becoming increasingly important in the global economy, which is likely to lead to changes in the way that intellectual property is used and exploited.
Overall, the future of intellectual property is likely to be complex and challenging. However, it is also an opportunity for businesses and innovators to create new and innovative products and services, and to drive economic growth.
Sure, here are some MCQs on the topics of patents and intellectual property rights:
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Which of the following is not a type of intellectual property?
(A) Patents
(B) Copyrights
(C) Trademarks
(D) Trade secrets -
A patent is a right granted by the government to an inventor, giving them the exclusive right to make, use, sell, or offer to sell an invention for a limited period of time.
(A) True
(B) False -
The purpose of patents is to encourage innovation by giving inventors a reward for their work.
(A) True
(B) False -
Copyrights protect original works of authorship, such as books, music, movies, and software.
(A) True
(B) False -
Trademarks protect words, phrases, symbols, and designs that identify the source of goods or services.
(A) True
(B) False -
Trade secrets are confidential information that gives a company a competitive advantage.
(A) True
(B) False -
Which of the following is not a requirement for patentability?
(A) Novelty
(B) Utility
(C) Non-obviousness
(D) Ownership -
A patent application must be filed with the United States Patent and Trademark Office (USPTO).
(A) True
(B) False -
The term of a patent is 20 years from the date of filing.
(A) True
(B) False -
A patent can be enforced against anyone who makes, uses, sells, or offers to sell the invention without the permission of the patent owner.
(A) True
(B) False -
Copyright protection lasts for the life of the author plus 70 years.
(A) True
(B) False -
Copyright protection extends to original works of authorship, such as books, music, movies, and software.
(A) True
(B) False -
A copyright can be registered with the US Copyright Office.
(A) True
(B) False -
A copyright owner has the exclusive right to reproduce the work, prepare derivative works, distribute copies of the work, perform the work publicly, and display the work publicly.
(A) True
(B) False -
A trademark can be registered with the USPTO.
(A) True
(B) False -
A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of goods or services.
(A) True
(B) False -
A trademark owner has the exclusive right to use the trademark in connection with the goods or services with which it is associated.
(A) True
(B) False -
Trade secrets are protected by state law.
(A) True
(B) False -
Trade secrets can be lost if they are disclosed to the public.
(A) True
(B) False -
Trade secrets can be protected by non-disclosure agreements.
(A) True
(B) False
I hope these MCQs were helpful!