scholarly journals Die Globalisierung von Rechten an geistigem Eigentum und der Nord-Süd-Konflikt

2002 ◽  
Vol 32 (126) ◽  
pp. 103-125
Author(s):  
Michael Frein
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Property Rights ◽  
Multinational Corporations ◽  
Intellectual Property Rights ◽  
World Trade Organisation ◽  
Access To Medicines ◽  
Trips Agreement ◽  
The Poor ◽  
The Rich

The article discusses the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organisation (WTO) as an instrument for the globalisation of intellectual property rights. It focuses on the provisions of TRIPs Art 27.3 (b), which contains global rules for the patenting of life, and the question of access to medicines for the poor in developing countries. By analysing the underlying economic and political interests of the industrial countries and multinational corporations, which have formed the provisions of the TRIPs- Agreement, it is argued that higher standards in intellectual property rights, especially patents, advantage the rich and disadvantage the poor. Therefore there is an urgent need to change the TRIPs-Agreement in line with the interests and in favour of developing countries. The article shows that there are several suggestions for the current negotiations made not only by NGOs, but also by governments of developing countries.

scholarly journals THE IMPACT OF TRIPS AGREEMENT ON ACCESS TO MEDICINES IN DEVELOPING COUNTRIES: LEGAL CHALLENGES FACED BY THE PHARMACEUTICAL INDUSTRY PARTICULARLY IN INDIA

2012 ◽  
Author(s):  
Kamini Shanmugaiah
Keyword(s):  
Public Health ◽  
Developing Countries ◽  
Intellectual Property ◽  
Pharmaceutical Industry ◽  
Intellectual Property Rights ◽  
Access To Medicines ◽  
Trips Agreement ◽  
Compulsory Licensing ◽  
Legal Challenges ◽  
The Impact

The impact of intellectual property rights in particular patent relating to public health has posed numerous challenges faced by developing countries who are members of World Trade Organisation (WTO). This paper examines the impact of TRIPS Agreement (Trade Related Intellectual Property Rights) in relation to developing countries in general with specification made to India. Significant changes brought about by the TRIPS flexibilities in particular usage of compulsory licensing and Bolar provision have to a certain extent benefited the developing countries in the field of public health during national emergency. The TRIPS flexibilities by way of amendment have helped countries that (do not possess manufacturing capacities) to import medicines. Some developing countries even utilised TRIPS flexibilities in an aggressive manner to enforce their right to have access to medicines from other countries for the benefit of their citizens. Further, TRIPs flexibilities have helped developing countries to manufacture generic products to make it affordable to the people. This paper specifically examines the impact of the TRIPS Agreement on Indian generic pharmaceutical industry and the legal challenges faced by Indian pharmaceutical industry after the implementation of product patent regime effective from 1 January 2005. The Patent Amendment Act 2005(India) will be looked into especially on the controversy in respect of Section 3(d) of the Patent Amendment Act 2005(India) on the requirement of patentability. The new Section 92A of the Patent Amendment Act 2005(India) on the grounds to invoke compulsory licensing will be analysed to see whether Indian government has applied restrictive or broad approach, as compulsory licensing is certainly an important legal

Are Developing Countries Going Too Far on TRIPS? A Closer Look at the New Laws in India

2008 ◽  
Vol 34 (2-3) ◽  
pp. 395-421
Author(s):  
Radhika Bhattacharya
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Generic Drugs ◽  
Developed Countries ◽  
Trips Agreement ◽  
World Health ◽  
Non Governmental Organizations ◽  
Health Organization

The goal of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is to harmonize the intellectual property rights of World Trade Organization (WTO) member countries to a certain minimum standard. As a WTO member, the organization required India to enact legislation that enforces TRIPS by 2005. Part of India's motivation to pass its 2005 Patents Act stemmed from its obligations as a WTO member nation, as well as the government's desire to stimulate greater foreign investment, innovative research and economic growth.India's implementation of the TRIPS Agreement has generated a great deal of controversy. Disagreement exists about whether the Indian Patents Act overzealously protects intellectual property rights and whether the Patents Act goes beyond the spirit of the TRIPS Agreement. Many health officials and non-governmental organizations (NGOs) are seriously concerned about what the Patents Act implies for people suffering from diseases in less developed countries. Nonprofit and some World Health Organization officials argue that the new law prevents India from producing and supplying generic drugs within its borders and to other developing countries.

scholarly journals Ch.12 Control of Restrictive Practices in Contractual Licences

2020 ◽  
Author(s):  
Correa Carlos Maria
Keyword(s):  
Adverse Effect ◽  
Developing Countries ◽  
Intellectual Property ◽  
Adverse Effects ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Trips Agreement ◽  
Relevant Market ◽  
Dissemination Of Technology ◽  
The Impact

This chapter discusses Article 40 of the Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement, which is the outcome of a proposal originally made by developing countries, which were concerned about the impact of strengthened intellectual property rights (IPRs) on the conditions of voluntary licenses. Article 40.1 recognizes that some licensing practices pertaining to intellectual property rights which restrain competition ‘may have adverse effects on trade and impede the transfer and dissemination of technology’. Meanwhile, unlike most provisions of the TRIPS Agreement, Article 40.2 does not contain specific obligations. It expressly allows countries to adopt measures to control or prevent certain practices or conditions relating to licensing agreements. Judgement of whether they should be controlled or prevented is based on three elements. Contractual practices or conditions should: be examined in each particular case; constitute an ‘abuse’ of intellectual property rights; and have an ‘adverse effect on competition in the relevant market’.

Ch.2 Nature and Scope of Obligations

2020 ◽  
Author(s):  
Correa Carlos Maria
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
Property Rights ◽  
Social Development ◽  
International Law ◽  
Intellectual Property Rights ◽  
Basic Principle ◽  
Trips Agreement ◽  
Use Of Technology ◽  
The Way

This chapter examines the nature and scope of obligations in the Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement. The first sentence of Article 1.1 of the TRIPS Agreement re-states a basic principle of international law: pacta sunt servanda. It makes clear that the obligations imposed by the Agreement are to be given effect by Members within their respective jurisdictions. Neither this article nor any other provision of the Agreement specifies how such obligations are to be implemented. In countries that follow a ‘dualist’ approach to international law, implementing regulations would be needed, as the Agreement would not be recognized as self-executing. In those adopting a ‘monist’ approach, the Agreement may be directly applied by judicial and administrative authorities, at least to the extent that the provisions are clear enough and self-contained. The way in which the Agreement is implemented may have important implications on the conditions for the access to and use of technology, particularly in developing countries, and on their economic and social development. It is crucial, therefore, to clearly identify the options left by the Agreement to implement its provisions in a manner that is as consistent as possible with Members’ interests and strategies.

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