Abstract
TRIPS-plus provisions under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS-plus provisions) are increasingly utilized in preferential trade agreements (PTAs), such as the economic partnership agreements and free trade agreements. The nature of this type of clause is very diverse, i.e., it may aim to clarify, interpret and narrow down a TRIPS flexibility; it may be a provision that goes beyond the minimum standard protection of TRIPS; it may consist of provisions that develop new matters not covered by the TRIPS Agreement or provisions that contain an obligation regarding other treaties or international rules. Current literature refers as TRIPS-plus to commitments that go beyond the “minimum standard principle” of the TRIPS Agreement, in contrast to the notion of flexibilities, which refers to those choices for multilateral treaty implementation which take the minimum standard of protection as the “ceiling” of their commitments. The impact of TRIPS-plus provisions in PTAs on international intellectual property (IP) law can be measured in three ways: the direct impact of one provision on another (recourse to principles of international law is a very useful tool for measuring such impact); the impact of one set of rules in the interpretation of another (recourse to dispute settlement bodies’ decisions is illustrative); and the impact on current and future multilateral negotiations (reference to the Doha Round negotiations on IP and World Intellectual Property Organisation standing committees sheds some light here).
The views expressed are those of the author and do not represent the international organization or its members states.
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- 1.
No reference is made in this article to the relationship between specific provisions of the EPC and TRIPS.
- 2.
The definition of invention was amended to cover all fields of technology; the exclusion from patentability on the grounds of “ordre public and morality” was reworded in order to cover circumstances where the exploitation, but no longer the “publication” of the invention infringes these principles; methods of medical treatment continue to be excluded from patenting, but the ground was changed from the absence of industrial applicability to just the effective use of the possibility provided in TRIPS to exclude such inventions.
- 3.
Gervais (2009), p. 349.
- 4.
Some developing countries had TRIPS-compatible legislation in place well in advance of the 2000 deadline, among them Chile, Mexico and South Korea.
- 5.
During the TRIPS Council meeting of 8 and 9 June 2010 delegates from India and China highlighted the importance of Article 1.1 of TRIPS for the identification of “ceilings” in more extensive protection commitments.
- 6.
The existence of TRIPS-plus provisions in PTAs is not the only reason for developing countries to provide more extensive protection. There are developing countries and countries in transition that have adopted a higher level of protection than that requested in the TRIPS Agreement as the consequence of a unilateral choice.
- 7.
This provision permits Members to request the best mode in the following way: “Members … may require the applicant to indicate the best mode for carrying out the invention known to the inventor”.
- 8.
See Commission on Intellectual Property Rights (2002), p. 117 and Article 123(3) of the WIPO Model Law for Developing Countries on Inventions (1979).
- 9.
- 10.
Zissimos (2006).
- 11.
Under the WTO regional agreement information system, the world is divided by regions as follows: North America, Central America, South America, Caribbean, Europe, West Asia, Middle Asia, East Asia, Africa, Commonwealth of Independent States and Oceania.
- 12.
World Trade Report 2011: According to the report, one half of the PTAs currently in force are not strictly “regional”, due to the inclusion of countries from different geographical areas. p. 58.
- 13.
Adopted under GATT 1979, this provision enables developed Members to give differential and more favourable treatment to developing countries.
- 14.
A CU is defined in Article XXIV:8(a) of GATT 1994 as follows: “the substitution of a single customs territory for two or more customs territories so that i) duties and other restrictive regulations of commerce … are eliminated with respect to substantially all the trade between the constituent territories … or at least in respect to substantially all the trade in products originating in such territories, and ii) …substantially the same duties and other regulations of commerce are applied by each of the Members of the union to the trade of territories not included in the union”.
- 15.
A free trade area is defined by Article XXIV: 8(b) of GATT 1994 as follows: “a group of two or more customs territories in which the duties and other restrictive regulations of commerce … are eliminated in substantially all the trade between the constituent territories in products originating in such territories”.
- 16.
Members recognized the desirability of increasing freedom of trade by the development, through voluntary agreements, of closer integration between the economies of the countries parties to such agreements.
- 17.
Former French Foreign Trade Minister Christine Lagarde not just supported the new EU strategy, but added that this shift was an imperative due the fact that the US was “aggressively pursuing bilateral and regional deals, so France and Europe must join in, or risk being left behind”, quoted in Bhala (2007), text above fn. 15.
- 18.
World Trade Report 2011: According to the report, there are almost 300 PTAs in force, p. 60.
- 19.
The average number of PTA participants by WTO Member in 2010 is 12.
- 20.
The examination of the GATS consistency has been a difficult task, because it includes economic, legal and political considerations (see Panel Report in Turkey—Textiles, para 9.52). In fact, experience has shown that the consensus needed to produce a report is very difficult to reach.
- 21.
This practice has been the subject of criticism, because this analysis of compatibility is based upon a hierarchy of norms that is not shared by all; see for example Pauwelyn, who considers that this claimed supremacy of the WTO rules over the regional trade agreements is wrong, and argues that practice shows that WTO consistency of those regional trade agreements is almost never tested, so in the author’s view regional trade agreements are here to stay, whether or not they comply with WTO rules.
- 22.
WTO Members are currently reviewing the transparency mechanism with the intention to adopt it as final. WTO Members are also engaged in negotiation within the Doha Round to clarify and improve the disciplines in regional trade agreements.
- 23.
World Trade Report 2011, p. 197. However, the WTO report expressly states that “building-block/stumbling-block imagery does not adequately characterize the relationship between PTAs and the multilateral trading system”, and prefers other reasons for the new wave of deep integration agreements, namely, the requirements of international production networks.
- 24.
See http://www.eu-un.europa.eu/articles/en/article_6311_en.htm and European Commission 2006, p. 10. The assessment of the concrete impact of this new generation of FTAs on specific IP categories is not part of this article.
- 25.
See WTO Report of the Consultative Board 2004, para 85. Also see Asian Development Outlook 2006. Some authors shared this view, i.e., de Jonquières (2006): “abandonment of multilateral liberalisation in favour of bilateralism and regionalism could, in the longer term, erode the rules and disciplines underpinning the WTO”.
- 26.
As the Appellate Body stated in Turkey—Textiles (WT/DS34/AB/R, para 58), there are two conditions to justify the WTO-inconsistent measure: “First, the party claiming the benefit of this defence must demonstrate that the measure at issue is introduced upon the formation of a customs union that fully meets the requirements of sub-paragraphs 8(a) and 5(a) of Article XXIV. And, second, that party must demonstrate that the formation of that customs union would be prevented if it were not allowed to introduce the measure at issue”.
- 27.
WIPO-administered treaties, either pre or post TRIPS Agreement, do not contain MFN clauses.
- 28.
See MTN.GNG/NG11/27, 14 November 1990, para 4.
- 29.
See MTN.GNG/NG11/W/68, 29 March 1990, Article 4 of the draft Agreement on Trade-Related Aspects of Intellectual Property Rights submitted for circulation by the European Communities.
- 30.
(c) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of this agreement, provided that such agreements are notified to the committee established under Part VII below and do not constitute an arbitrary or unjustifiable discrimination against nationals of other parties.
- 31.
See MTN.GNG/NG11/W/70, 11 May 1990, Draft Agreement on Trade-Related Aspects of Intellectual Property Rights submitted by the US.
- 32.
Pauwelyn (2007), p. 18.
- 33.
In most countries, various entities can authorize the commercialization of certain regulated products. Since this process of marketing authorization takes place in parallel with and independently of the process of protection for the invention of those products, it is possible that certain tensions arise due to the delay in granting the authorization. Two major tensions may be mentioned. On the one hand, the right holder may suffer a net loss in the effective period of patent protection, since the 20-year period of protection starts from the patent application date. But on the other hand, competitors and consumers may be deprived of the possibility of early entry into the market of non-patented products as soon as the patent expires, because competitors need to wait until the marketing authorization is granted for each one of their products, producing a de facto extended period of marketing exclusivity. Therefore, from the competitors’ and users’ perspectives, there is an interest in this administrative process for marketing authorization beginning within the period of patent protection, despite the fact that production and commercialization must wait until the patent expires. This is exactly what the regulatory review exception is about.
- 34.
The laws of Australia, Brazil, China, Costa Rica, The Dominican Republic, Egypt, India, Jordan, Kenya, Malaysia, New Zealand, Nigeria, Thailand, Tunisia and Zimbabwe. The EU has decided to adopt at a regional level Directive 2001/82/EC for veterinary medicinal products and Directive 2001/83/EC for medicinal products for human use, as respectively amended by Directives 2004/27/EC and 2004/28/EC.
- 35.
See WT/DS114/R.
- 36.
because of the narrow scope of its curtailment of Article 28.1 rights. As long as the exception is confined to conduct needed to comply with the requirements of the regulatory approval process, the extent of the acts unauthorized by the right holder that are permitted by it will be small and narrowly bound. Even though regulatory approval processes may require substantial amounts of test production to demonstrate reliable manufacturing, the patent owner’s rights themselves are not impaired any further by the size of such production runs, as long as they are solely for regulatory purposes and no commercial use is made of resulting final products.
- 37.
The Panel considered that Canada was on firmer ground, however, in arguing that the additional period of de facto market exclusivity created by using patent rights to preclude submissions for regulatory authorization should not be considered ‘normal’. The additional period of market exclusivity in this situation is not a natural or normal consequence of enforcing patent rights. It is an unintended consequence of the conjunction of the patent laws with product regulatory laws, where the combination of patent rights with the time demands of the regulatory process gives a greater than normal period of market exclusivity to the enforcement of certain patent rights.
- 38.
On balance, the Panel concluded that the interest claimed on behalf of patent owners whose effective period of market exclusivity had been reduced by delays in marketing approval was neither so compelling nor so widely recognized that it could be regarded as a ‘legitimate interest’ within the meaning of Article 30 of the TRIPS Agreement. Notwithstanding the number of governments that had responded positively to that claimed interest by granting compensatory patent term extensions, the issue itself was of relatively recent standing, and the community of governments was obviously still divided over the merits of such claims.
- 39.
Commission on Intellectual Property Rights (2002), p. 59.
- 40.
In a document prepared by WIPO (CDIP/5/4) figures show the following distribution by region of the exhaustion level chosen by several countries: Africa (national 12, regional 16 and international 2); Latin America (national 9, regional 0 and international 14); Asia and Oceania (national 13, regional 0 and international 8); Europe (national 5, regional 31 and international 1). Thus international exhaustion counts for almost 61 per cent in Latin America, about 6.6 per cent in Africa and just 2.7 per cent in Europe. National exhaustion counts for almost 40 per cent in Africa and Latin America while just 13 per cent in Europe.
- 41.
Pauwelyn (2007), p. 9.
- 42.
NAFTA Article 103.2 states that it prevails over GATT unless otherwise provided.
- 43.
See Article 196(1) and (2) of the EU-Colombia/Peru FTA, which, on the one hand, stipulates that the parties reaffirm the rights and obligations under the TRIPS Agreement and WIPO-administered treaties, and on the other hand, expressly states that provisions on IP are intended to complement or specify the rights and obligations under those previously mentioned in multilateral treaties and that “no provision of this title will contradict or be detrimental to the provisions of such multilateral agreements”.
- 44.
See Article 197(1) of the EU-Colombia/Peru FTA: “each party may, in formulating or amending its laws and regulations, make use of the exceptions and flexibilities permitted by the multilateral intellectual property agreements”.
- 45.
See Article 139(2) of EC-Cariforum Agreement, which states “nothing in this Agreement shall be constructed as to impair the capacity of the parties … to promote access to medicines”. In the same vein, Article 197(2) and (3) of the EU-Colombia/Peru FTA make reference to the necessary consistency of the interpretation of the FTA’s IP chapter with the Doha Declaration, as well as to the WTO General Council Decision of 30 August, 2003 on the implementation of Paragraph 6 and its protocol for amending TRIPS.
- 46.
Grosse Ruse-Khan (2011), p. 30.
- 47.
Deere (2008), p. 75.
- 48.
Delegation of Uruguay at the Fifth Session of the CDIP (26-30 April 2010) concerning document CDIP/5/4.
- 49.
Utility model legislation exists in a significant number of countries: of 120 countries studied in a WIPO document (CDIP/5/4Rev), there is utility model protection in 43 countries in Africa, 22 in Latin America, 19 in Asia and Oceania, and 25 in Europe. Needless to say, important differences exist between those legal norms.
- 50.
Article 2, subsection 2, of the TRIPS Agreement contains a reference to the Paris Convention establishing that “nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention”. The fact that this treaty does not establish any minimum standard of protection for utility models leaves WTO Members free to formulate regimes for this category of IPR.
- 51.
The IPC covers not only patents for invention, but also inventors’ certificates, utility models and utility certificates.
- 52.
In the framework of the PCT, references to an application for the protection of an invention are construed as covering applications for patents for inventions, inventors’ certificates, utility models, patent certificates of addition and utility certificates of addition.
- 53.
In the case of the Philippines, it is provided in Rule 2001 of the Patent Act that “the following shall be excluded from protection as utility models: (a) discoveries, scientific theories and mathematical methods; (b) schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers; (c) methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall not apply to products and compositions for use in any of these methods; (d) plant varieties or animal breeds or essentially biological processes for the production of plants or animals. This provision shall not apply to microorganisms and non-biological and microbiological processes; (e) aesthetic creations; and (f) anything which is contrary to public order or morality.”
- 54.
For example, the Russian Federation Patent Act, in relation to inventions patentable as a utility model, states: “A technical solution relating to a device shall be protected as a utility model” (Section 1351, subsection 1). The Polish law states: “Any new and useful solution of a technical nature affecting shape, construction or durable assembly of an object shall constitute a utility model”. In the Mexican Utility Model Law, protection is available for “[o]bjects, utensils, appliances or tools which, as a result of a modification in their arrangement, configuration, structure or form, offer a different function with respect to their component parts or advantages with respect to their usefulness”.
- 55.
For instance, processes or chemical substances are excluded in the laws of a significant number of countries. Despite the fact that concern has been expressed that this back door could be used to protect non-patentable inventions, particularly in sensitive sectors such as pharmaceuticals, it is clear that many solutions are available within the utility model system itself, for example, a definition could be adopted including the requirement of embodiment, but an exclusion from patentability for those products could also be provided.
- 56.
A significant number of countries in all regions provide for the disclosure of the origin or source of the biological material, but particularly in Latin America followed by Europe.
- 57.
The Doha Declaration of November 2001 instructed the TRIPS Council to analyse the relationship between TRIPS and CBD in the framework of its review of Article 27.3(b).
- 58.
For an in-depth analysis see IP/C/W/368/Rev.1.
- 59.
The Swiss proposal was first submitted for consideration at the fourth session of the Working Group on PCT Reform held in May 2003. The proposal is described as an enabling clause because it allows Member States to implement the requirement, if they so wish.
- 60.
Namely, Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the ACP Group and the African Group (TN/C/W/59).
- 61.
Therefore the requirement should not act “de facto o de jure” as an additional formal or substantial patentability criterion and sanctions should fall outside patent law.
- 62.
See IP/C/W/469, and in the same vein IP/C/W/434, IP/C/W/443, IP/C/W/449 and IP/C/W/459.
- 63.
See Article 13 of the Biotechnology Directive (Directive 98/44/EC of 6 July 1998).
- 64.
See Article 15(6) of the Patent Law of Belgium (consolidated version of 1 January 2010), Article 3(4) of the consolidated Patent Law of Denmark (order of 29 January 2009), and Article 49a of the Patent Law of Switzerland (last amended 1 July 2009).
- 65.
See the Patent Law of the Andean Community, Brazil and Costa Rica, among others.
- 66.
See the Patent Law of Egypt, Ethiopia, Burundi and South Africa, among others.
- 67.
See the Patent Law of China, India and Pakistan, among others.
- 68.
See, for example, Article 30 of the EU-Lebanon Interim Agreement (2002).
- 69.
In the field of patents, commitments are related to the following treaties: the Patent Cooperation Treaty (Washington, 1970), the Patent Law Treaty (Geneva, 2000) and the Budapest Treaty (1977).
- 70.
In previous bilateral agreements the recognition of the importance of a number of multilateral treaties was also used.
- 71.
See Article 147 of the EU-Cariforum Agreement.
- 72.
The EU-Cariforum EPA, in some categories of IP, includes a list of international agreements to which the parties are committed to apply, to accede or to endeavour to accede, e.g., on copyright Article 143 A, on trademarks Article 144 E and on patents Article 147A(1), (2) and (3).
- 73.
Thus, a claim by the EU before Cariforum/Colombia/Peru relating to violations of a multilateral treaty would be solved according to the respective treaty’s rules, e.g., Article 28 of the Paris Convention and Article 59 of the PCT.
- 74.
However in some cases developed countries commit to accede to treaties they are not yet parties, For instance, through certain FTAs the United States of America has committed to make reasonable efforts to accede to the Patent Law Treaty (PLT), i.e., the US Korea and the US Australia (US still not a party, they just signed the treaty in 2000), as well as to make reasonable efforts to accede to the Hague Agreement Concerning the International Registration of Industrial Designs (1999), i.e., the US Korea, US Australia and US Singapor (US still not yet a party); and to make reasonable efforts to joint the Singapore Treaty on the Law of Trademarks, i.e., the US Singapore was signed in 2007 before US joined that treaty in 2008.
- 75.
As an example, the Singapore Treaty on the Law of Trademarks was adopted on 28 March 2006 and is reflected in the US-Korea FTA (2007).
- 76.
Ironically, even soft law, which by way of its incorporation in an FTA, may bind not only parties to the FTA to each other, but also such parties with other WTO members (MFN). Needless to say, it does not affect those other Members that are not part of the FTA.
- 77.
He (2010), p. 272.
- 78.
Morin (2009), p. 186.
- 79.
Bhala (2007), p. 84.
- 80.
See WT/DS170/R, para 3.2. Canada, the defendant, argued that according to a NAFTA provision, the term of 20 years from filing and 17 from granting are equivalent and so in conformity with the TRIPS provision. However, the panel did not consider the NAFTA provision as a useful tool for interpretation to determine whether Canada complied with the TRIPS Agreement.
- 81.
See WT/DS/291, 292 and 293. The panel held that the obligation to take into account exogenous rules of international law when interpreting a WTO rule applies only to those rules that are binding on all WTO members and not to those that are binding just among disputants, as in the case of FTAs.
- 82.
See WT/DS114/R. The panel held that the legal situation in various countries, including the US, is not a tool for interpretation, despite Article 31 of the VCLT. The panel added that the requirement of “subsequent practice” would be difficult to satisfy, because it implies a “tacit agreement between all parties”.
- 83.
Yu (2004), p. 397.
- 84.
Morin (2009), p. 188.
- 85.
Morin, idem, quoting Kindred and Saunders (2006), p. 148, argues that, since FTA signatory states accepted the TRIPS-plus provision to cover trade interests and not to cover any recent customary norm, FTAs are unlikely to serve as a basis for interpretation of new customary international norms.
- 86.
See NAFTA decisions in cases such as High Fructose Corn Syrup and Softwood Lumber, cited in Henckels (2008).
- 87.
See WT/DS241/R, para 7.41.
- 88.
See WT/DS320/AB/R, para 371.
- 89.
See Article 319 of the EU-Colombia/Peru FTA and Article 222 of the EU-Cariforum EPA.
- 90.
If something is already decided by a given body this closes off the option for further consideration by other bodies.
- 91.
If a dispute is still unresolved in one forum it cannot be brought before another forum.
- 92.
One adjudicative body considers that another tribunal is better placed to exercise jurisdiction.
- 93.
Up to 2010, 82 out of 443 disputes were between parties that were partners in PTAs.
- 94.
For instance the Cobden-Chavalier Treaty between Britain and France in 1860, which brought significant tariff reductions and an MFN clause.
- 95.
Quoted in Rayasam (2006), para 22.
- 96.
Zoellick (2004), p. 57.
- 97.
See World Trade Report 2011, which indicates that waves of regionalism have “tended to coincide with—or be immediately followed by—significant advances in GATT negotiations”, p. 52.
- 98.
Nevertheless, a significant number of FTAs signed by developed and developing countries other than the United States of America and EU members limit IP provisions to the TRIPS commitments and do not reproduce the text of the agreements signed with the US or the EU, e.g., Australia’s FTA with Singapore and Thailand or Singapore’s FTA with New Zealand, Jordan and Japan.
- 99.
Morin (2009), p.177.
- 100.
VCLT. Article 41. Agreements to modify multilateral treaties between certain of the parties only.
-
1.
Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.
-
2.
Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.
-
1.
- 101.
Work in progress developing at a different pace, depending on the subjects, namely, the Standing Committee on Copyright and Related Rights (SCCR), Standing Committee on the Law of Patents (SCP), Standing Committee on Trademarks, Industrial Designs and Geographical Indications (SCT) and Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.
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Aleman, M.M. (2014). Impact of TRIPS-Plus Obligations in Economic Partnership- and Free Trade Agreements on International IP Law. In: Drexl, J., Grosse Ruse - Khan, H., Nadde-Phlix, S. (eds) EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?. MPI Studies on Intellectual Property and Competition Law, vol 20. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39097-5_4
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