The Agreement on Trade-Related Aspects of Intellectual Property Rights (or TRIPS Agreement) now sets global standards for the protection of intellectual property. It entered into force on 1 January 1995 and is binding on all members of the World Trade Organization (WTO). Despite the Doha Declaration, many developing countries have come under pressure in recent years to enact or implement even stricter or more restrictive conditions in their patent laws than required by the TRIPS Agreement – these provisions are referred to as “TRIPS plus”. Countries are in no way obliged to do so under international law, but many, such as Brazil, China or Central American countries, have had no choice but to adopt them as part of trade agreements with the United States or the European Union. These have catastrophic effects on access to medicines. (2) Copyright protection extends to expressions and not to ideas, processes, working methods or mathematical concepts as such. According to the Paris Convention, what were usually referred to as “asymmetries” allowed for the adoption of different standards of protection by different countries at different levels of national development (provided that national treatment was ensured). The World Trade Organization `WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets out minimum standards of protection that each government must afford to the intellectual property of other WTO Members, thereby limiting the previous scope of flexible national approaches. Nevertheless, members may rely on their own legal system and practices to implement their enforcement obligations. WTO members, for example, are free to maintain their own judicial system.

They can also take enforcement measures to implement flexibilities in terms of protection standards. 3The June deadline passed without consensus and the deadline was subsequently extended to March 2005. The March deadline also passed without an agreement, but on 6 December 2005, the WTO finally reached consensus on amending the TRIPS Agreement. This amendment follows the principles agreed on 30 August 2003. Member States have until 1 December 2007 to ratify the amendment so that it can be formally incorporated into the TRIPS Agreement. Review of Members` implementing rules Members should inform the TRIPS Council of their relevant laws and regulations. This helps the Council to review the functioning of the agreement. Article 35 of the TRIPS Agreement requires Member States to protect the design patterns of integrated circuits in accordance with the provisions of the IPIC (Intellectual Property Contract for Integrated Circuits) Treaty, which was negotiated in 1989 under the auspices of WIPO. These provisions concern, inter alia, definitions of integrated circuits and design of development (topography), protection requirements, exclusive rights and restrictions, as well as exploitation, registration and disclosure.

An integrated circuit is a product in its final or intermediate form in which the elements, of which at least one is an active element, and all or part of the compounds are formed entirely in and/or on a piece of material and which is intended to perform an electronic function. A schematic design (topography) is defined as the three-dimensional arrangement, regardless of its shape, of the elements, at least one of which is an active element, and of all or part of the connections of an integrated circuit or such a three-dimensional arrangement prepared for an integrated circuit intended for manufacture. The obligation to protect designs applies to designs that are original in the sense that they are the result of the intellectual effort of their creators and are not common among designers of layouts and manufacturers of integrated circuits at the time of their creation. Exclusive rights include the right of reproduction and the right to import, sell and other distributions for commercial purposes. There are some restrictions on these rights. Article 26(2) allows Members to provide for limited derogations from industrial design protection, provided that such exceptions do not conflict unreasonably with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking into account the legitimate interests of third parties. However, the TRIPS Agreement contains certain “flexibilities”. These aim to enable developing and least developed countries to apply TRIPS-compatible standards in a way that allows them to pursue their own public policies, either in specific areas such as access to medicines or the protection of their biodiversity, or more generally in the creation of macroeconomic and institutional conditions conducive to economic development. Critics of this recommendation may argue that the binding nature of these provisions infringes on the sovereignty of a nation; however, this needs to be seen in the context of the TRIPS Agreement as a whole. The agreement makes several provisions binding: patent protection must last at least 20 years; Process patenting is not allowed, public disclosure of the invention is mandatory, etc.

For these reasons, it is unlikely that the granting of compulsory licences under a supranational agreement that makes other provisions binding, especially if they are compatible with an official declaration by the Member States, will arouse much political resistance. The biggest problem with compulsory licensing, as described in the TRIPS Agreement and its amendment, is that they are not drafted as a minimum standard that countries must apply in their national legislation to be TRIPS compliant. Rather, it is an option available to Member States for transposition into their national legislation. As a result, only five countries and territories that have the pharmaceutical capacity to be exporting countries under compulsory licences have actually made progress in transposing these measures into their national law (18). If the Doha Declaration is considered to be an accurate reflection of the feelings of nations, provisions on compulsory licensing should be included in the TRIPS Agreement as an obligation for Member States. At the very least, where separate categories of medicinal products are created, as set out in the first Recommendation, provisions on compulsory licensing of essential medicinal products should be required in order to comply with TRIPS. The TRIPS Council is composed of all WTO Members. It shall be responsible for monitoring the functioning of the Agreement and, in particular, the manner in which Members fulfil their obligations under the Agreement. The TRIPS agreement is the perfect fit on the World Trade Organization`s punch bag. .