What is TRIPS?

With new businesses and services emerging each day, the need for protecting Intellectual Property Rights is the need of the hour. But while the law proves to be an asset when it comes to protecting an individual’s physical property it might not come handy when it comes to an intellectual one.

What is intellectual property?

Intellectual property is a term that defines a category of individual’s property that includes intangible creations of the human intellect. While there are several types of intellectual property some of the most omnipresent types are copyrights, patents, trademarks, and trade secrets.

What is the TRIPS Agreement?

The issue of protecting the intellectual property of an individual is not limited to any particular country. Nations from around the world have been trying to enunciate laws that can protect one's intellectual property as efficiently as their physical counterparts.

Therefore the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement entered between all the member nations of the World Trade Organization. The agreement aims to set minimum standards for the regulation of many forms of intellectual property by the member nations as applied to nationals of other WTO member nations. 

It makes mandatory for all member states to enact legislation to protect the intellectual property of an individual in their nation. Each member nation is also obliged to provide domestic procedures and remedies with respect to the protection of IPR.

Thus with TRIPS, every member nation of the WTO promises to adopt enforcement procedures, remedies, and dispute resolution procedures.

India and the TRIPS

India became a party to the TRIPS Agreement in April 1995 after which the intellectual property rights and its forms were not only acknowledged in India but also protected.

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 also 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 the Indian Patent Act pertains to the grant of Compulsory Licenses.

What is a compulsory license?

Compulsory licenses are authorizations given to a third-party by the Government through which it can make, use or sell a particular product or use a particular process which has already been patented, without the seeking the permission of the patent holder.

The Reason behind granting compulsory licenses

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.

How can you get a compulsory license?

According to Section 84, any person who is interested or already the holder of the license under the Patent can make a request to the Controller for grant of a compulsory license on expiry of the three years, when the below-mentioned conditions are fulfilled.

 (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.

Aspects taken into consideration while granting Compulsory License:

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

b.    The 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 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.      The 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.

Since Compulsory Licenses play a crucial role in national emergencies and dire needs, a compulsory license under the Patents Act can also be granted via Section 92:

1. For exports, under exceptional circumstances.

2. In case of national emergency, extreme urgency of public non-commercial use by notification of the central government.

3. To a country which has insufficient or no manufacturing power in the pharmaceutical sector to address public health.