ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Legal Factors in TRIPS

To ensure that patent-abusive situations, such as the ones that occurred in South Africa, do not repeat themselves, member countries of the WTO must draft balanced domestic patent legislations based on a rational interpretation of the TRIPS text.

The Bretton Woods Conference was held in 1944 to restore the economic activity which was shattered by second world war. International organisations such as the IMF, WB and GATT1 were set up to revive the global economy. The GATT, a trade pact and an organisation was founded in Geneva in 1948 to pursue the objective of free trade in order to encourage growth and development of all member countries. It set out world trade rules to ensure competition in commodity trade by bringing down tariff levels. The first seven GATT Rounds sought to stimulate international trade through reduction in tariff and lowering of non-tariff restrictions on imports. The Eighth Round of GATT was launched in Punta del Este, Uruguay, in September 1986 and it concluded in April 1994. It commenced when the worlds leading economies were still reeling under the severe recession of 1980-81.2 Apparently, this Round was held to evolve rules on reducing obstacles to international trade and to encourage global economic growth through greater trade. But in reality it was a frantic scramble to capture the domestic markets of the south by the worlds advanced countries facing recession.

The Uruguay Round of GATT negotiations went well beyond the area of international trade. It entered fields not within the jurisdiction of GATT and extended to areas which were essentially part of domestic policies of a nation. New issues such as intellectual property rights, agriculture, investments, services, etc, were deliberately brought on the agenda of multilateral trade negotiations. And the global trade arena was for the first time littered with the most complicated and detailed rules formulated by the powerful players. These rules decided the pattern of investment that a country should pursue; the type of technology it must promote; the industries it must deregulate and privatise; the agricultural support it must maintain; and the type of patent system it must adopt and implement. Since the inception of the patent system, the principle of symbiosis and mutuality has been the basis of patent laws of all countries. Patent is a reward, an inducement to the patent holder to bring forth a new, novel and useful invention which furthers human knowledge and benefits and develops the society at large. But creation and grant of exclusive rights in the form of patents leads to denial of fundamental right of freedom to trade for other citizens. Patent monopoly, being in derogation of freedom of trade, therefore, cannot be granted without some consideration, benefit or advantage moving to the public. Grant of patents can be justified only on basis of corresponding benefits to the citizens. Consequently, all patent systems and patent laws impose on the patent holder the obligations to disclose the invention; to ensure its availability for further research and development; and to permit government/public/third party use. This quid pro quo principle was accepted by the Board of Trade in UK while proposing the draft bill for Patent Law amendments in 1919. It was adopted by the Supreme Court of US in 1989.3 It was also reflected in the Indian Patent Act of 1970, the chief features of which are:

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