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Trips Agreement and Compulsory Licensing

  • Trips Agreement and Compulsory Licensing

    Date : 06-07-2018 15:23

    The Agreement on Trade-related Aspects of Intellectual Property Rights of the WTO is commonly known as the TRIPS Agreement or simply TRIPS. TRIPS is one of the main agreements comprising the World Trade Organisation (WTO) Agreement. The Uruguay Round introduced intellectual property rights into the multilateral trading system for the first time through a set of comprehensive disciplines.

     

    The TRIPS Agreement applies to all WTO members, mandatorily.

     

    It makes mandatory for all member states to enact legislation to protect the intellectual property of the corporation of state members in respective states. Each member nation is obliged to provide domestic procedures and remedies with respect to the protection of IPR.

     

    India became a party to the TRIPS Agreement in April 1995

     

    Patents in India are granted to encourage inventions & to secure that it is worked on a commercial scale. The Indian Patent Act ensures that a patentee should not be able to enjoy a monopoly for the importation of the patented article.

     

    The Patent act provides measures by way of compulsory licensing to ensure that the patents do not impede the protection of public health and nutrition and the Patent Rights are not abused by the Patentee.

     

    Section 84 of Indian Patent Act pertains to the grant of Compulsory Licences.

     

    Compulsory Licences are granted in order to:


    a. Prevent the abuse of patent as a monopoly


    b. Make a way for commercial exploitation of the patented invention by an interested person


    c. Address the public health concern in India.


     

    Any person interested or already the holder of the license under the patent can make a request to the controller for grant of compulsory license on the patent after three years from the date of grant of that patent on following grounds:

    (a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or

    (b) that the patented invention is not available to the public at a reasonably affordable price, or

    (c) that the patented invention is not worked in the territory of India.

     

    The Controller takes following aspects into consideration while granting Compulsory License:

    a.      Nature of the invention, i.e. complexity of the technology;


    b.     Time which has elapsed since the grant of the patent i.e. despite the best efforts by the patentee or licensee since the grant of a patent, it was difficult to work out the invention at commercial scale to its fullest before the application of the compulsory license was filed to the Patent Office


    c.      The measures already by the patentees or any licensee to make full use of the invention:


    d.     The ability of the applicant to work the invention to the public advantage;


    e.      The capacity of the applicant to undertake the risk in providing capital and working the invention, if the application were granted


    f.       Applicant has made full efforts to obtain a license from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period construed as a period not ordinarily exceeding a period of 6 months.

     

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