Regs of Trips, Domestic Implementation Term Paper

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Article 60 of the Patent Law and Article 25 of the Anti-Unfair Competition Law holds not specific provision however, Article 118 of the General Principles of Civil Law provides that the plaintiff possess right to have ill effects of infringement eliminated. This is also including disclosure of third-party infringers.

48: Indemnification of the defendant in relation to the Courts holding of the power to order that damages be paid by the plaintiff to the defendant if enforcement complaint procedures are abused under Article 98 Civil Procedure Law which required compensation be paid if interim preservation is obtained and the Plaintiff loses the suit

China is complaint under Part III Section 3: Provisional Measures, Part III Section 3: Special Requirements Related to Border Measures, Part III Section 5: Criminal Procedures, and Part IV: Acquisition and Maintenance of Intellectual Property Rights and Related Interparties Procedures. China is "essentially complaint and "not complaint" in Part V. Dispute Prevention and Settlement 63 and 64 respectively. But will be required to comply with 64 Dispute Settlement under GATT rules upon joining the WTO.

In November of 1999 the U.S. And China negotiated WTO issue that was non-inclusive of issues relating to IP issues. China must:

Remove import and export barriers to licenses

Free up distribution networks; and if Taiwan also joins

China must as well

Institute direct trade with the Island.

On paper China complies with the majority of the TRIPS requirements, however, non-compliance exists in:

The Protection layout design of integrated circuits; and protection of geographical indications.

Some of China's rules of civil litigations procedure are not compliant at least not explicitly according to Clark (2000)

IV. TRIPS and Public Health

U.S. pharmaceutical and biotechnology companies invested the approximate amount of $33.2 billion toward activities of research and development which is about 18% of the sales total of all their combined products. The discovery costs in pre-tax amounts of a new drug experienced an increase from $500 million to $880 million between 1990 and 2003 and as well the time of waiting for approval and the like has grown in length due to regulatory requirements and other associated technicalities. In order to limit the risk in the activities related to therapeutic areas the U.S. companies must find business partners and associates in China and other countries who are trustworthy. (Greguraus & Banait, 2005)

Patents are generally not issues early in the approval process and it is at this time that there is a danger of these new drugs hitting the counterfeit market and many times the drugs have not been approved save for use. The generic drug market, in terms of counterfeit drugs is a growing one in India and China. It is vital that U.S. companies obtain patents in these countries as well as in the U.S. (Greguraus & Banait, 2005)

V. TRIPS and the Convention on Biological Diversity

The TRIPS Article 27.3(b) addresses certain items that may be excluded from patentability - plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. Stated is that members are required to provide for the "protection of plants varieties either by patents or by an effective sui generic system or by any combination thereof." (the Trips Council's work is informed by developments in other international forums including the World Intellectual Property Organization (WIPO)

Convention on Biological Diversity (CBD)

Food and Agriculture Organization (FAO); and United Nations Committee on Trade and Development (UNCTAD)

There are two reasons given in support of the viewpoint that states that there is an 'inherent conflict' between the TRIPS Agreement and the Convention on Biological Diversity (CBD) which are as follows:

The TRIPS Agreement, by requiring that certain genetic material be patentable or protected by sui generis plant variety rights and by not preventing the patenting of other genetic material, provides for the appropriation of such genetic resources by private parties in a way that is inconsistent with the sovereign rights of countries over their genetic resources as provided for in the CBD;"

The TRIPS Agreement provides for the patenting or other intellectual property protection of genetic material without ensuring that the provisions of the CBD, including those relating to prior informed consent and benefit sharing, are respected.

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Those in disagreement are stated to cite the following reasons supporting the view that there is "no conflict" between the TRIPS Agreement and the CBD and little or no likelihood of a conflict in practical implementation:

The TRIPS Agreement and the CBD have different objects and purposes and deal with different subject-matter;"

The granting of patent rights over inventions that use genetic material does not prevent compliance with the provisions of the CBD regarding the sovereign right of countries over their genetic resources, prior informed consent and benefit sharing;"

No specific examples of conflict have been cited."

The WTO report states that:

The issue of what can be learnt about the relationship between the TRIPS Agreement and the CBD from the way in which the CBD refers to intellectual property matters and other international agreements has also been discussed: one view is that Article 16.5 of the CBD itself acknowledges a conflict between the objectives of protecting IPRs and those of the conservation of biological diversity when it states that "[t]he Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives"; another view has been that the mere fact that the CBD refers to the possibility of conflict does not mean that one exists."

Arguments state that the following advantages would be realized by the proposed disclosure requirement:

it would help provide a predictable environment for governments, investors, traditional communities and researchers and would lead to more biotechnological R&D in developing countries;" it would facilitate the conclusion of contracts, such as material transfer agreements for the transfer of biological materials and information transfer agreements for the transfer of traditional knowledge;" several countries have already established such requirements in their national legislation as a means of implementing the CBD and there would be legal certainty if the TRIPS Agreement was amended accordingly;"

Incorporation of such an obligation in the TRIPS Agreement and its enforcement through the WTO dispute settlement system would provide a mechanism to help ensure compliance with the prior informed consent/benefit rules of the CBD."(WTO, 2002)

VI. Summary

It is apparent that there is much to be addressed in relation to the protection of Intellectual Property, most particularly in the developing countries of the world where little respect is given to rights associated with Intellectual Property. The dangers that inherently lie within the realm of generic and counterfeit medications is one area that simply cannot be overlooked or ignored in terms of the public health aspects that have become inclusive in view of this problem of counterfeiting and pirating of goods.

China is one country but yet accounts for a total of one-fifth of the population of the entire world and counterfeiting on this level is one that is horrendous but will stop upon Chinas joining of the World Trade Organization due to the obligatory compliance that will be including the General Agreement on Tariffs and Trade (GATT) Agreement on Trade Related Aspects of Intellectual Property (TRIPS).

Conclusion

Projections are that within five years of China and other countries having joined the WTO that infringement of Intellectual Property will decrease however it is projected as well that China's government will have to be very active in implementing more extension reforms in order to liberalize the domestic market in China and to allow People's Republic of China and other foreign companies to more freely import and export products.

Clark, Douglas (2000) IP Rights Protection Will Improve in China - Eventually - Online available at www.chinabusinessreview.com/public/0005/clark.html

The Relationship Between the TRIPS Agreement and the Convention on Biological Diversity (2002) Summary of Issues Raised and Points Made - World Trade Organization Report Noted by the Secretariat 2002 August 8 IP/C/W/368 (02-4363) Council for Trade-Related Aspects of Intellectual Property Rights ii the Relationship Between the TRIPS Agreement and the Convention on Biological Diversity (2002) Summary of Issues Raised and Points Made - World Trade Organization Report Noted by the Secretariat 2002 August 8 IP/C/W/368 (02-4363) Council for Trade-Related Aspects of Intellectual….....

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