TRIPS Agreement committed the Member States in the World Trade Organization that allows in their national legislation the possibility that all patented inventions, as long as conditions are met to obtain a patent, whether products or industrial processes, in all fields of technology ([1]). This provision has been enjoined on all Member States to protect all sects inventions by patent, whatever the technological field, which belongs to the invention.
This provision and Member States legislation which excludes inventions pharmaceutical, chemical or food from the scope of protection by a patent, And / or countries that restrict the granting of a patent on inventions relating to the way without industrial inventions relating to products, to amend its laws in accordance with the provisions of the Convention ([2]). This amendment requires legislation to allow the grant of a patent and product patent all the way to industrial inventions, pharmaceutical, chemical and food, like other inventions that belong to other areas of technology, where available, as long as the conditions for granting a patent.
As Under article 27/1 of the Convention on the Member States not to distinguish between inventions concerning the granting of a patent or the enjoyment of ownership based on the place of invention, the field of technology to which it belongs, or whether products are imported or locally produced.
It is then not allowed to Member States to distinguish treatment between inventions that invented within its territory and inventions that have been reached at the outside, both with regard to the possibility to obtain a patent, or the rights granted to the owners, ([3]), and may not be discrimination in treatment between inventions on the basis of the technological field, which belongs to the invention. Is not limited to the application of the principle of equal treatment between inventions on equality among them in terms of the possibility of obtaining a patent, but rather extends the application of the principle of equality to the enjoyment of the rights of ownership of the patent.
It is therefore incumbent upon agreement of Member States that distinguish between inventions that belong to different technological areas that modify this provision to determine the equality of treatment between the different sects of inventions, both in terms of the conditions for granting a patent, or the enjoyment of the rights of ownership.
It is worth mentioning that the difference in treatment between the sects inventions was planned in the legislation of many countries, especially in developing countries. In Egypt, was the second article (b) of the Patent Act and Industrial Designs repealed No. 132 of 1949 does not permit the grant of a patent for inventions chemicals related to food or drugs or pharmaceutical compounds only if these products are manufactured in ways or chemical processes, especially, in this case Do not go off the last of the patent to the product itself, but go off and method of manufacture. In terms of the protection period has been the law of patents, industrial designs, specifies in Article 12 of the patent term fifteen years, commencing from the date of the patent application, and may be renewed once for a period not exceeding five years, while the patent is granted for inventions chemicals related to food or drugs or pharmaceutical compounds, a patented method of industrial, Vmdtha ten years non-renewable. ([4]) In India the law of patents ancient Indian Act of 1970 defines the term of the patent as a general rule to 14 years, while he determined the duration of the patent granted medicines and food - a patented method industrial - to 5 years from the date of the final decision to grant a patent or 7 years from the date of the patent application, whichever is shorter ([5]).
Whereas Article 27/1 of the TRIPS Agreement obliges Member States not to differentiate in the treatment of inventions has enjoined this provision to all Member States that include legislation contains provisions similar to the contents of the Egyptian law and the Indian Act from the provisions of the abolition of the distinction in treatment between inventions, pharmaceutical, chemical, food and other denominations other inventions.
In addition Under article 27/1 of the TRIPS Agreement on the Member States to grant patents are rights enjoyable without discrimination between inventions with respect to whether products are imported or locally produced. This is stipulated by saying that "... patents shall be available and patent rights enjoyable without discrimination with regard to the ... or ... or whether products are imported or locally produced." It has been said in the interpretation of this text is that it imposes on Member States to cancel the obligation imposed by the legislation on the patent holder exploitation of industrial invention in the territory of the donor of the patent ([6]), a commitment was imposed by many of the legislation of developing countries to the patent owner to attract foreign investment and boost development industrial and economic development, but this interpretation is not recognized by the legislation of some developing countries. Examples of such legislation Property Law Industry Brazilian, issued in 1996, as Under article 68 (a) of the Act the patentee to exploit the invention in Brazil, and imposed a penalty of compulsory licensing on the failure to implement this commitment ([7]), and so did the Law on the Protection of Intellectual Property Rights Egyptian the new Article 23 in the fourth.
(1) The Article 27/1 of the Convention on it saying: "Subject to the provisions of paragraphs 2.3, have the possibility of obtaining patents for any inventions, whether products or industrial processes, in all fields of technology, provided that they are new, involve an "inventive step" and usable in the industry. taking into account the provisions of paragraph 4 of Article 65, paragraph 8 of Article 70, paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. "
([2]), and this legislation the law of patents, industrial designs, Egyptian repealed No. 132 of 1949, as Article II (b) of the Act was not authorize the granting of the patent for inventions chemicals related to food or drugs or pharmaceutical compounds only if these products manufactured by way of a special chemical processes, and in the latter case, do not go off patent to the products themselves, but go off and method of manufacture.
([3]) It is worth noting that some of the legislation in force prior to the application of the TRIPS Agreement was shortened to grant certain intellectual property rights to the citizens without foreigners. The TRIPS agreement banned discrimination in treatment between national and foreign endorsed the principle of national treatment under Article II of the Convention. However, this does not mean that the TRIPS agreement introduced the principle of national treatment, where that principle is decided by many previous international agreements on them, it is the oldest of the Paris Convention for the Protection of Industrial Property, 1883, and the Berne Convention for the Protection of Literary and Artistic Works 1886.
([4]) have been affected by patent laws in Arab countries, to a large extent the provisions of the Patent Law of the ancient Egyptian No. 132 of 1949, and transferred many of its provisions. For example, the transfer of the Patent Law old Kuwaiti No. 4 for the year 1962, in article 12 of the provision of Article 12 of the Egyptian law.
([5]), and this time at least for the period set by the TRIPS Agreement, as put Article 33 of the Convention, a minimum patent term of 20 years counted from the date of applying for a patent, and left this provision to all sections of the inventions without discrimination. India has amended its duration of protection in line with the TRIPS Agreement.
([6]) see in the presentation of this trend: Carlos Correa, The Trips Agreement: Implementation Problems in Developing Countries, p. 6
(7) has made the United States complained to the DSB included the claim that this provision violates the TRIPS Agreement, but that the United States reached an amicable settlement with the Brazilian government in this regard, and notified the DSB that, and therefore did not continue to consider the complaint.
See the documentation WTO: WT / DS 199
التسميات
Intellectual property