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ABSTRACT
This paper provides the insights and discusses the current negotiations in the context of the
agreement on Trade related aspect of intellectual property rights (TRIPS). The focus of
discussion on TRIPS issues has been in the implementation of TRPIS agreement in the
developing countries as well as from the text of TRIPS itself from the Uruguay round and also
suggests for the ideas of the same.

Keywords: TRIPS Agreement, WTO, GATT, IPR, dispute.

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 TABLE OF CONTENTS

SL.NO PAGE.NO

TABLE OF CASES………………………………………………………………….4

1.INTRODUCTION………………………………………………………………….5

2. TRIP’S MAIN APPROACH REGARDING NEGOTIATIONS…………………5-6

3. PREVENTION AND RESOLUTION OF CONFLICT RESULTING FROM….

THE PROVISION OF TRIPS AGREEMENT………………………………………7

3.1 TRANSITIONAL AGREEMENT………………………………………………7

3.2 INSTUTIONAL ARRANGEMENTS………………………………………….7-8

4. TRIPS AGREEMENT: A BONE FOR DEVELOPING COUNTRIES…………8

5. IMPACT OF TRIPS ON INDIAN LEGISLATION…………………………….8-9

5.1 DEMERITS OF TRIPS AGREEMENT………………………………………10

5.2 NEED FOR THE TRIPS AGREEMENT………………………………………10-

6. CONCLUSION/SUGGESTION…………………………………………………11

7. BIBLIOGRAPHY………………………………………………………………. 12

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 TABLE OF CASESE

Gouron pharmaceuticals Inc. v. controllers of patents AIR 2014, SCC 277.

Cipla v Roche AIR 2015,16 DEL

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1.INRODUCTION
The WTO’s agreement on Trade related aspects of intellectual property rights (TRIPS),
negotiated during the 1986-94 Uruguay round, introduced intellectual property rules into the
multilateral trading system for the first time. The TRIPS Agreement is one of the most
significant WTO accords. The agreement went into effect on January 1, 1995. The WTO’s
TRIPS Agreement is an attempt to narrow the gaps in the way these rights are protected and
enforced around the world, and to bring them under common international rules. And when
there are trade disputes over the application of the TRIPS Agreement, the WTO dispute
settlement system is available.1

Need of the TRIPS Agreement

Before TRIPS Agreement there were several organisations that has been formed such as GATT
and WTO but these two only dealt with good and services whereas TRIPS covers all the aspects
of IPR and also includes the reduction of distortions and impediments to international trade
likewise it also promotes the effective and adequate protection of intellectual property rights,
and ensuring that measures, procedures to enforce intellectual property rights. 2

The trade related aspects of intellectual property rights (TRIPS) Agreement is crucial for
promoting trade in knowledge and innovation, resolving intellectual property trade disputes,
and ensuring World Trade organisation (WTO) members freedom to pursue their domestic
goals. That is why there is a need for TRIPS Agreement.

2.TRIPS-MAIN APPROACH REGARDING NEGOTIATIONS

The TRIP’S negotiating group met twice in July 1989 to discuss, first the applicability of basic
GATT Principles to intellectual property and security and secondly the provision of adequate
standards regarding the availability, scope and use of intellectual property Rights.3 There were
two board approaches in the TRIPS negotiations. A number of developed countries had made
written submission to the negotiating group on TRIPS notably the United States, Japan,
Switzerland and EC. These countries stressed the inadequate and discriminatory protection of
intellectual property rights constituted a major distortion to trade and should be dealt within

1
Dr. G. B. Reddy’s “intellectual property Rights and the law” 59, (Gogia Law agency, Hyderabad, 8th edn
2010).
2
Trade Related Aspects of Intellectual Property Rights (TRIPS), available at: https://byjus.com (visited on Nov
25,2022, Time: 12:56 pm).
3
This report contained in documents MTN, GNG/NGII/13, available at: https://www.wto.org (visited on 2Oct,
2022, Time: 14:04pm).

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the framework of GATT. The developing countries on the other hand maintained that it was
not within the mandate of GATT or negotiating group to consider the protection of intellectual
property rights by elaborating upon submission norms and standards compulsory for all the
states. Likewise, India and Brazil were the front runners to opposite the GATT negotiations on
TRIPS. The fundamental issues that Brazil raised in the discussion with the negotiating group
were.4

• The extent to which rigid and excessive protection of IPR impended the access to latest
technological developments, restricting the participants of developing countries in
international trade.
• The implications that a rigid system of IPR protection held with respect to international
trade.

The Indian submission also set out its views on the provision of adequate standards and
principles concerning the availability, scope and use of trade related aspects. India maintained
that member states should be given freedom to tune their IPR system with own need and
conditions. India’s basic approach may be broadly described as follows;

• Patent system is an instrument of national economic policy for the industrialization and
technological advancement of a country.
• There should be no attempt at the harmonization of patent laws.
• Giving due consideration to sector of critical importance to developing countries like
food production, nutrition health care and many more.5

These fixable features of the Indian Patent law were put fourth before the negotiating group for
a more favourable patent regime for developing countries. During the negotiations in
December, 1991, Author Dunkel, Director General of GATT presented a set of proposal,
popularly known as ‘Dunkel Proposal’. The 108 participating states were given time till
January 13, 1992 to respond to the proposal. The final act was adopted in Marrakesh on April
15,1994.6

4
Supra Note 3.
5
“Intellectual Property Rights-Standards and principles concerning its availability, scope and use”, available at:
https://www.wto.org. (Visited on 4 NOV, 2022, Time: 25:45 pm).
6
P. Narayanan, “Intellectual Property Law”219, (Eastern law house, Kolkata, 3rd edn 2017).

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3.PREVENTION AND RESOLUTION OF CONFLICT RESULTING
FROM THR PROVISION OF TRIP’S AGREEMENT

The TRIPS council is in charge of the provision relating to dispute resolution and prevention.
The common register, which contains a compilation of laws and regulations, final judicial
decisions, and other information pertaining to the agreement, should be established, Article 63
establishes an obligation to notify laws and regulations to the TRIPS council or the WIPO.
Article 64 of the agreement outlines process for preventing and resolving disputes. For this
aim the WTO agreement’s integrated dispute settlement procedure will apply to TRIPS
issues.7

3.1 TRANSITIONAL AGREEMENT

The TRIPS agreement allowed countries to delay the implementation of its terms for various
lengths of time. These timeframes specify the period between when the agreement entered into
force (on January 1, 1995) and when it got implemented in member countries. The following
are the major transition periods:

1. Developed countries were given a one-year transition period following WTO Agreement’s
entry into force i.e. until January 1, 1996.
2. Developing nations were given an extra four years to implement the agreement’s
provisions with the exception of Articles 3.4.and 5 which deal with broad principles like
non-discrimination.
3. Least developed countries were given an additional eleven-year transition time, with
option of an extension.8

3.2 INSTITUTIONAL ARRANGEMENTS

Article 68 of the TRIPS Agreements establishes the TRIPS council. The TRIPS council
oversees the administration of this agreement, including, member’s compliance with their
duties under it, and provides member with the opportunity to consult on trade-related aspects
of IPR.

7
Ayush Tiwari, “TRIPS Agreement” (Law School Noida, February 05, 2022).
8
Ibid.

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It carries out any other obligations that the members delegate to it, including providing any
help sought by them in the context of dispute resolution procedures.9

4.TRIPS AGREEMENT: A BONE FOR DEVELOPING COUNTRIES

The agreement imposes essential and obligatory requirements on signatory member nations to
implement basic levels of intellectual property right protection in all of its elements. However,
this agreement has far reaching implications for developing nations, as rigid the intellectual
property restrictions stifle the growth of indigenous enterprises in these areas. Intellectual
property rights, although vital, must be implemented with caution in developing nations since
they can harm the economy, public health, and so on. The principal consequences of the patent
protection regime have a deterring effect on the expansion of local sectors’, such as
pharmaceuticals.

Intellectual properties should not be used towards the interest of developing countries, such as
public health, which is already being harmed. As a result, a re-evaluation is necessary. In
addition, when the situation demands them, the exceptions to the intellectual property rights
shall be implemented effectively and strictly.

The TRIPS Agreement has had a considerable impact on IPR Protection in poor nations but
has had a little discernible impact on IPR protection in developed countries. This outcome is
consistent with the TRIPS Agreement’s requirements being established to be as near as possible
to IPR protection systems already in existence in many developed countries. To comply with
the TRIPS Agreement, developed nations did not need to make significant changes to their
policies. And also, the nations that rely heavily on exports to countries that advocated for the
TRTIPS Agreements inclusion in the WTO (I.e., developed countries) may take the possibility
of retaliatory trade penalties seriously since they stand to lose a lot of money in lost exports.
This demonstrates the TRIPS Agreements as a coercive threat in international economic
negotiations.

5.IMPACT OF TRIPS AGREEMENT ON INDIAN LEGISLATION

It impacts on the TRIPS on India that India brought changes in its IPRS Laws. The preceding
fifteen years have seen many new IPR enactments. With Globalisation, liberalization and

9
Supra Note 8.

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privatization the ambit of IPR has grown multifold and its importance has amplified, having a
profound impact on commercial interests.

IPR have generated strong impact on the modern-day life. These IPRs were members states to
implemented the provisions of the agreement in order to promote and protect the IPRs.
Members states have been asked to provide protection to different IPRs by making necessary
adjustments in their existing laws or by enacting new laws. In order to fulfil such obligations,
members state have been amended their laws or have brought up new legislations. India being
a member state to the TRIPs agreement. The TRIPs agreement brought changes in the existing
framework on the IPRs, which had impact on the entire world the TRIPs agreement uniforms
and rationalizes all the existing international agreements on different arears of IPRs. It provides
for the blue print for the protection of all the different forms of IPRs.10

The agreement, also brought significant impact changes to the Indian Intellectual Property
regime. This patents law was amended to include the product patents under the ambit of the
Indian patent’s laws, furthermore inventions in the field of agriculture, pharmaceuticals and
non-natural genetically engineered life forms have been included under the ambit of patentable
invention provide that the inventions demonstrate characteristics like novelty, inventive step,
and so on. Full implementation of product patents in all technological domains including mail-
box applications form 1st January 2005.11 In the case of Agouron pharmaceuticals Inc. v.
controllers of patents12, the Hon’ble High court of Kolkata held that the applications filed prior
to 1st January,2005 were to be considered in accordance with the patents Act 2005. As a result,
all mail-box applications were to be taken for examination from the abovementioned date.

Again, In the case of Cipla v Roche13, the court battle of Cipla and Roche is one such instance.
In early 2009, the Delhi High rejected a temporary injunction against Cipla for manufacturing
a copy-cat version of the drug, manufactured by Roche, to treat lung cancer. Roche claimed
that rejection of its plea would be against public interest and hurt R and D. Cipla argued that
granting an injunction would deprive the needy of an important drug. So, the court held that
the Roche’s original drug was at least three times more expensive that the copy-cat version and
was not manufactured in India and with this in IPR Laws it has brought certain changes.

10
Parmod Malik, “Implications of TRIPS Agreement on India with special reference to Pharmaceutical sector”,
Research journal Volume III, (Sonipat, Haryana India).
11
Lvin George, “TRIPS and its impact on the Indian regime”, journal of NMIMS University Sep 26,2019).
12
AIR 2014, SC277.
13
AIR 2015,16, DEL.

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5.1DEMERITS OF THE TRIPS AGREEMENT

• TRIPS mandates high levels of patent protection.

5.2NEED FOR THE TRIPS AGREEMENT

IP Protection was supposed to help nor only promote technical innovation but also the transfer
and spread of new technology in a way that benefits both its procedures and users while
maintaining a balance of rights and duties, all with the purpose of increasing social and
economic wellbeing. As a result, the TRIPS Agreement’s primary objectives included
reducing trade distortions and obstructions by supporting effective and appropriate protection
of IPRs, as well as ensuring that measure and processes for enforcing IPRs do not become
hurdles to legitimate trade.

Currently, the rise in IP legislative activity, as well as the quick adoption of TRIPS-covered
IP Rights, demonstrate the TRIPS Agreement’s centrality in the global trade system. The
TRIPS Agreement continues to play a key role in facilitating international trade in knowledge,
resolving trade issues over IP.15

14
Overview: the TRIPS Agreement, available at: https://wto.org (visited on Nov 6, 2022, Time: 15:01pm).
15
Supra note7.

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6.CONCLUSION/SUGGESTION

At last, I want to say despite the importance of the TRIPs Agreement, the developing countries
have highlighted a number of concerns and flaws in the treaty. Despite these issues, the TRIPS
agreement is often regarded as the most comprehensive mechanism for protecting intellectual
property rights. It enhances and manifests previous IPR conventions, the, importance of which
were first drafted at the end of the nineteenth century.

TRIPS Agreement failed to address policymakers’ concerns, since trade balances have
continued to deteriorate, it would have been better to establish and tiered structure that provided
more meaningful special and differential treatment based on nations developmental
requirements. But still new laws could not satisfy and feel like several of the provisions still
require further development. Trips Agreement did not protect the domestic traditional
knowledge but I feel like TRIPS Agreements should protect internationally as well as
nationally.

The new amendment of TRIPS have to provide a board framework and exposure to the
mechanism of IPR so that the procedure can take place efficiently.

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 7.BIBLIOGRAPGY

PRIMARY SOURCE

Dr. G. B. Reddy’s “intellectual property Rights and the law”, (Gogia Law agency, Hyderabad,
8th edn 2010).
P. Narayanan, “Intellectual Property Law”, (Eastern law house, Kolkata, 3rd edn 2017).

SECONDARY SOURCE
ARTICLES/JOURNALS
Ayush Tiwari, “TRIPS Agreement” (Law School Noida, February 05, 2022).
Parmod Malik, “Implications of TRIPS Agreement on India with special reference to
Pharmaceutical sector”, Research journal Volume III, (Sonipat, Haryana India).
Lvin George, “TRIPS and its impact on the Indian regime”, journal of NMIMS University Sep
26,2019).
WEBSITE
Trade Related Aspects of Intellectual Property Rights (TRIPS), available at: https://byjus.com
(visited on Nov 25,2022, Time: 12:56 pm).
This report contained in documents MTN, GNG/NGII/13, available at: https://www.wto.org
(visited on 2Oct, 2022, Time: 14:04pm).
Intellectual Property Rights-Standards and principles concerning its availability, scope and
use”, available at: https://www.wto.org. (Visited on 4 NOV, 2022, Time: 25:45 pm).
Overview: the TRIPS Agreement, available at: https://wto.org (visited on Nov 6, 2022, Time:
15:01pm).

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