September 2006
Contents
> Philosophy:
striking a balance
> Obligations
and exceptions
> What
does “generic” mean?
> Developing
countries
This
fact sheet has been prepared by the Information and Media
Relations Division of the WTO Secretariat to help public
understanding. It is not an official interpretation of
the WTO agreements or members’ positions |
The balance works in three ways:
- Invention
and creativity in themselves should provide
social and technological benefits. Intellectual
property protection encourages inventors and
creators because they can expect to earn some
future benefits from their creativity. This
encourages new inventions, such as new drugs,
whose development costs can sometimes be
extremely high, so private rights also bring
social benefits.
- The
way intellectual property is protected can also
serve social goals. For example, patented
inventions have to be disclosed, allowing others
to study the invention even while its patent is
being protected. This helps technological
progress and technology dissemination and
transfer. After a period, the protection expires,
which means that the invention becomes available
for others to use. All of this avoids
“re-inventing the wheel”.
- The
TRIPS Agreement provides flexibility for
governments to fine tune the protection granted
in order to meet social goals. For patents, it
allows governments to make exceptions to patent
holders’ rights such as in national
emergencies, anti-competitive practices, or if
the right-holder does not supply the invention,
provided certain conditions are fulfilled. For pharmaceutical
patents, the flexibility has been clarified and enhanced by the 2001
Doha Declaration on TRIPS and Public Health. The enhancement was put
into practice in 2003 with a decision enabling countries that cannot
make medicines themselves, to import pharmaceuticals made under
compulsory licence. In 2005, members agreed to make this decision a
permanent amendment to the TRIPS Agreement, which will take effect
when two thirds of members accept it.
What
is the basic patent right? back to top
Patents
provide the patent owner with the legal means to prevent
others from making, using, or selling the new invention
for a limited period of time, subject to a number of
exceptions.
A
patent is not a permit to put a product on the market back to top
A
patent only gives an inventor the right to prevent others
from using the patented invention. It says nothing about
whether the product is safe for consumers and whether it
can be supplied. Patented pharmaceuticals still have to
go through rigorous testing and approval before they can
be put on the market.
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The
TRIPS Agreement
Article 7
Objectives
The protection and enforcement of intellectual
property rights should contribute to the
promotion of technological innovation and to the
transfer and dissemination of technology, to the
mutual advantage of producers and users of
technological knowledge and in a manner conducive
to social and economic welfare, and to a balance
of rights and obligations.
Article 8
Principles
1. Members may, in formulating or
amending their laws and regulations, adopt
measures necessary to protect public health and
nutrition, and to promote the public interest in
sectors of vital importance to their
socio-economic and technological development,
provided that such measures are consistent with
the provisions of this Agreement.
2. Appropriate measures, provided
that they are consistent with the provisions of
this Agreement, may be needed to prevent the
abuse of intellectual property rights by right
holders or the resort to practices which
unreasonably restrain trade or adversely affect
the international transfer of technology.
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