SPS AGREEMENT TRAINING MODULE: CHAPTER 9
Health and other WTO Agreements
Besides the SPS Agreement, other WTO Agreements also deal with health-related topics. The most important are
- the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS);
- the Agreement on Trade in Services (GATS); and
- the Agreement on Technical Barriers to Trade (TBT).
An introduction to each of these agreements is given below.
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9.1 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The TRIPS Agreement concerns the protection and enforcement of all the main categories of intellectual property rights, including patents for inventions, copyright for literary and artistic works, trademarks for brand names and so on. It lays down minimum standards that Member governments should comply with in their national law, leaving them free to go further if they wish. The TRIPS Agreement seeks to find an appropriate balance between interests of users of intellectual property and creators or producers of intellectual property. Users of intellectual property have interests in the incentives being provided for technology creation — the creation of new drugs for example. In many cases, a well-functioning intellectual property system will also facilitate the transfer of technology, particularly where the cooperation of persons who have developed the technology is required to enable its effective transfer and use. Moreover, the Agreement recognizes that Member governments can take measures to protect public health and nutrition as well as other public policy objectives, provided they do so consistently with the provisions of the Agreement.
Patent protection and health back to top
Under the TRIPS Agreement, patent protection has to be given to inventions of products or processes in all areas of technology for a minimum period of 20 years from the filing of the patent application. There are some exceptions where countries have freedom to give patents or not. These include inventions which are contrary to public morality or public order; diagnostic, therapeutic and surgical methods; and some plant and animal inventions. Limited exceptions to patent rights can be made in certain circumstances. There are provisions for compulsory licensing and government use without authorization by the patent owner, subject to a number of conditions aimed at protecting the legitimate interests of the patent owner. It is also recognized that governments can take measures against anti-competitive practices involving the use of intellectual property rights, and there is a provision for consultation and cooperation between governments to facilitate such action. Where anti-competitive practices have been established as a result of some due process of law, some of the conditions on the use of compulsory licensing are relaxed in order to facilitate the use of compulsory licensing as a remedy to such anti-competitive practices.
Counterfeit goods back to top
Another health-related topic concerns the dangers of counterfeit pharmaceuticals and other healthcare products. The TRIPS Agreement lays down substantive standards that have to be available so owners of trademarks can secure protection of their trademarks. Governments should provide effective procedures and remedies to ensure that trademark owners can effectively enforce their trademark rights through domestic enforcement bodies such as courts, with the help of the police, the customs administration, etc. If possible, action against counterfeiting should be taken at the point of production. Where this is not the case, there is a provision for border measures involving the customs administration to prevent imports of counterfeit goods. Attention is also given to promoting international cooperation between customs agencies and other enforcement bodies to facilitate action against counterfeiting.
Test data back to top
Companies provide test and other data to obtain marketing approval from public health regulatory bodies for drugs. Often a considerable amount of effort is involved in the origination of the data concerned. Where new chemical entities are involved, governments are required to protect those data against unfair commercial use, and may not disclose them except where disclosure is necessary in the public interest, or where steps have been taken to protect them against unfair commercial use.
Transition periods back to top
Developed countries had one year, until the beginning of 1996, to comply with the TRIPS Agreement. Developing countries had until year 2000. Least developed countries have until the year 2006, with a possibility of extension. There are some special transition periods relating to countries which do not yet give product patent protection to pharmaceuticals.
Technical cooperation back to top
The TRIPS Agreements contains provisions for technical cooperation by developed countries to help developing and least developed country Members meet their obligations. Intergovernmental organizations, notably WIPO, are also active in this field.