The Implication of WTO/TRIPS Agreement on Developing Countries’ Social Economic Development A Critical Analysis of TRIPS Agreem

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This study discusses the spirit and rationale of the TRIPS, the constraints under which the Agreement functions, and the actual and potential impact the Agreement may have in terms of the benefits realized from scientific research and development. While the provisions mandate the observance of standards that must be met by Member States, the details pertaining to the manner of implementation in each jurisdiction still depends largely on the national laws and culture of each State. Despite the broad range of benefits developing countries stand to realize under TRIPS, there still exist at present structural deficiencies and substantial inadequacies in legislation that tend to put developing countries at a prima facie disadvantage. Legal points are supported by case law and jurisprudence, with a discussion of doctrinal cases pertaining to TRIPS. Table of Contents Title Page Abstract Table of Contents Introduction 1. Brief historical background 2. Structure, key provisions and innovations of TRIPS 2.1. Patent protection 2.2. Flexibilities provided under TRIPS 2.2.1. Compulsory licensing 2.2.2. Parallel importation 2.2.3. Protection of data submitted for registration 2.3. Transition periods 2.4. The Doha Declaration 3. Concerns of developing countries in relation to TRIPS implementation 3.1. Market exclusivity rights 3.2. Compatibility of TRIPS with frameworks in developing countries 3.3. Inadequacy of institutional infrastructures 3.4. Technological deficiencies and technology transfer 4. Advantages of TRIPS agreements for developing countries 4.1. Limits to market exclusivity 4.1.1. Article 27.2 4.1.2. Article 27.3 4.1.3. Article 30 4.1.4. Article 31 4.1.5. Article 32 4.2. Limits to data exclusivity requirement 4.3. Degree of self determination by Member States 4.4. Extended transition periods for developing countries 4.5. Paragraph 6 of the Doha Declaration 5. Potential disadvantages developing countries might experience under TRIPS 5.1. Dearth of legal expertise 5.2. Substantial costs of implementation 5.3. Risks and uncertainties during transition 5.4. Market disclosures 5.5. Backlash of parallel importation 5.6. Ambiguities in interpretation 6. Result of TRIPS implementation among developed and developing countries 7. Legal issues 7.1. Procedural issues 7.1.1. Issue of direct effect and the jurisdiction of the Court to interpret provisions of TRIPS 7.1.2. The treatment of non-violation complaints 7.2. Substantive issues 7.2.1. Monsanto –Argentina: On the issue of patent enforcement and the antitrust law 7.2.2. India – Mailbox (U.S.) : Obligation to adopt legislation compliant with TRIPS arise upon entry of Agreement into force 7.2.3. Canada – Generic Pharmaceuticals : Construction of Article 30 7.2.4. U.S. – Copyright Exemption : Exceptions to remuneration of copyright license 7.2.5. Canada – Patent Term : On patent term for pre-TRIPS-granted patents 7.2.6. U.S. – Havana Club : Denial of patent rights due to violation of strong public policy 7.2.7. EC – Geographical Indications : National treatment vis-a-vis material reciprocity 7.2.8. U.S. claims regarding Brazil’s compulsory licensing legislation in the case of