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Patents: International Treaties

The  World Trade Organization (WTO) is at the forefront in driving patent standardization globally. This concept is called harmonization of intellectual property law. However, there is no such thing as global patent law, but rather instead there is an agreement on some minimum patent protections that must be provided by each WTO signatory. The controlling law is the law of the jurisdiction, however each signatory has more or less agreed to "play nice" with respect to the minimums. In so doing, there has emerged a consensus on what a minimum standard means for the developing world. The minimum standards are enforced via the TRIPS agreement (discussed below), which each WTO signatory must agree to as a prerequisite to membership. TRIPS is quite broad and encompasses all relevant intellectual property law doctrines.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

TRIPS is administered by the World Trade Organization (WTO). The WTO maintains a significant amount of relevant information regarding this agreement on its website and the "gateway" to additional TRIPS information can be found here. TRIPS contains content that is much broader than patents, including copyright, trademarks, industrial design and trade secrets. The following excerpt from the WTO TRIPS website is informative.

Ideas and knowledge are an increasingly important part of trade. Most of the value of new medicines and other high technology products lies in the amount of invention, innovation, research, design and testing involved. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, not usually because of the plastic, metal or paper used to make them. Many products that used to be traded as low-technology goods or commodities now contain a higher proportion of invention and design in their value — for example brandnamed clothing or new varieties of plants.

Creators can be given the right to prevent others from using their inventions, designs or other creations — and to use that right to negotiate payment in return for others using them. These are “intellectual property rights”. They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brandnames and product logos can be registered as trademarks; and so on. Governments and parliaments have given creators these rights as an incentive to produce ideas that will benefit society as a whole.

The extent of protection and enforcement of these rights varied widely around the world; and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. New internationally-agreed trade rules for intellectual property rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically.

A foundational part of the TRIPS agreement is the concept of National Treatment. Essentially this requires that foreign nationals be treated the same as "locals" once goods have entered the country (i.e. national laws apply to foreigners in a manner analogous to how a nation's laws applies to its own citizens). This does not mean that the same laws apply everywhere. That said, TRIPS does make an attempt to provide a minimal set of "common ground rules" by incorporating minimum standards from the Paris Convention and the Berne Convention. The full text of the agreement can be found here in outline format.

The patent related aspects of TRIPS are contained in Articles 27-34. These Articles can be found in their entirety starting here. The patentable subject matter that is protected is found in Article 27 and contains the following language:

Article 27 Patentable Subject Matter

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (5) Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

3. Members may also exclude from patentability:    
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

The TRIPS agreement is arguably the most important international agreement dealing with intellectual property (IP) law among the largest nations (and many smaller ones) and is a cornerstone agreement that underpins the global economy. It will likely continue to maintain its prominence as IP represents more and more of the GDP of both the developed and the developing world. Patent protection outside of the  holder's national borders will an remain an important issue on the world economic stage as the Internet increasingly drives the creation of global markets.

As Internet Lawyers we offer patent advice but not patent prosecution.

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