27 May 2010
Because monopolies and other exclusive rights could restrict or distort international trade and hinder development, national governments have entered a number of international agreements to protect within their territories on a reciprocal basis the intellectual assets of each others’ nationals and residents.
Probably the most important of those agreements is Annex 1c to the Marrakesh Agreement Establishing the World Trade Organization which is better known as TRIPS. TRIPS sets minimum standards of protection for the works of art and literature, trade marks, geographical indications, industrial designs, patents, semiconductor topographies and undisclosed information of nationals and residents of parties to the WTO agreement, Since nearly all industrial countries are members of the World Trade Organization (“WTO”) and since membership of the WTO is conditional upon adherence to TRIPS it can accurately be said that access to the richest markets in the world is contingent on protecting intellectual assets. More
TRIPS also requires contracting parties to comply with arts 1 to 12 and art 19 of the Paris Convention for the Protection of Industrial Property (“Paris Convention”), arts 1 to 21 and the Appendix to the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), and arts 2 to 7 and arts 12 and 16 of the Washington Treaty on Intellectual Property in Respect of Integrated Circuits. The other core convention is the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (“Rome Convention”).
Patent Co-operation Treaty
The Paris Convention requires each contracting party to allow applicants for patents, trade marks or industrial designs in other contracting parties priority over other applicants for the registration of the intellectual property right in its territories. In the case of a patent, the period of priority is 12 months from the date of the applicant’s first application. In the case of a trade mark or industrial design it is 6 months from the date of the first application. Before the Patent Co-operation Treaty (“PCT”) came into force, applicants for patents had to apply simultaneously to every patent office for the territory for which a corresponding patent was required within the 12 months period of priority. That, of course, was both expensive and inconvenient. Art 3 (1) of the PCT allows applicants to make a single application (known as an “international application”) to all of the contracting parties to the treaty. The application is received by a designated receiving office which arranges for a search of the prior art and an opinion as to whether the invention is patentable. These are known as the “international search” and the “international search report” respectively. If after considering the international search and opinion the applicant wishes to proceed the application is forwarded to the patent offices of the territories for which the applicant seeks patent protection. Each national patent office then considers the application for compliance with its own laws.