Trips Agreement Provisions
Unlike other IP agreements, TRIPS have an effective enforcement mechanism. States can be disciplined by the WTO dispute settlement mechanism. Article 35 of the TRIPS agreement obliges Member States to protect the design of integrated circuits in accordance with the provisions of the IPIC Treaty (Intellectual Property Treaty, taking into account integrated circuits) negotiated in 1989 under the aegis of WIPO. These provisions include definitions of the integrated circuit and layout design (topography), protection requirements, exclusive rights and restrictions, and use, registration and disclosure. An integrated circuit refers to a product in its final form or an intermediate form in which the elements, of which at least one is an active element, and some or all connections are formed in full in and/or on a piece of material and must perform an electronic function. A layout design (topography) is defined as the three-dimensional layout, in terms or not, of elements of which at least one is an active element, and by some or all connections of an integrated circuit or a three-dimensional layout prepared for an integrated production circuit. The obligation to protect layout designs applies to layout designs that are original in the sense that they are the result of the intellectual efforts of their creators and are not commonplace for layout designers and integrated circuit manufacturers at the time of their creation. Exclusive rights include the right to reproduce and the right to import, sell and distribute for commercial purposes. There are restrictions on these rights. The 2002 Doha Declaration confirmed that the TRIPS agreement should not prevent members from taking the necessary steps to protect public health. Despite this recognition, less developed countries have argued that flexible TRIPS provisions, such as mandatory licensing, are almost impossible to obtain. The least developed countries, in particular, have made their young domestic manufacturing and technological industries proof of the infallible policy. Compulsory licences and the use of the state without the permission of the rights holder are permitted, but they are subject to conditions designed to protect the legitimate interests of the rights holder.
The conditions are essentially set out in section 31. This is, as a general rule, the obligation to issue such licences only if an unsuccessful attempt to obtain an optional licence on reasonable terms has been undertaken within a reasonable time; the obligation to pay fair compensation in the circumstances of this case, taking into account the economic value of the licence; and the obligation that decisions be subject to judicial or independent review by a separate higher authority. Some of these conditions are relaxed when compulsory licences are used to remedy practices deemed anti-competitive by a court proceeding. These conditions should be read at the same time as the provisions of Article 27.1 which require that patent rights be free of discrimination in the field of technology and that they be imported or manufactured locally. Article 51 – Suspension of release by customs authorities “Members adopt, in accordance with the provisions below, proceedings to allow a right holder who has legitimate reasons to suspect that the importation of counterfeit trademarks or copyrighted goods is likely to take place, to submit in writing to the competent authorities, by administrative or judicial means, a request to suspend the free practice of such goods by the customs authorities.