The Convention And The Gatt System

1386 WordsApr 4, 20176 Pages
To satisfy the national treatment principle ensured in the Paris Convention and the GATT system, the “availability” of article 27.1 should be interpreted as Members are required to “grant” patents regardless of the product or process ' field of technology, place of manufacture, or the applicant 's nationality. Particularly, article 2 of the Paris Convention specifies the foreign applicants enjoys the patent right be granted to her in all countries of the Union. Furthermore, article 2 of the Paris Convention is incorporated by article 2.1 of the TRIPS Agreement. The non-discrimination obligation in article 27.1 of the TRIPS Agreement is to ensure the national treatment incorporated from the Paris Convention to be fully implemented.…show more content…
Hence, section 84 does not discriminate de jure. Nevertheless, there might be de facto discrimination in practices (in granting compulsory licenses, not in granting patents) due to the fact that most of the patentees are foreigners in a developing country. However, neither de jure discrimination nor de facto discrimination exists in “making patents available” to foreigners. Arguably, it would be de facto discriminatory to nationals in developing countries. Most important of all, scholars also concur on the opinion that technology-specific differentiations can be justifiable, not per se impermissible under TRIPS. The Canada—Pharmaceutical Patents panel did not intend to provide a rigid rule to determine what constitutes a legitimate reason to impose a differential treatment. The IPA did not appear to apply the local working requirement only to the pharmaceutical sector. Previously, Brazil introduced a local working provision (article 68) in its Industrial Property Law and the US filed a complaint before the WTO dispute settlement body in 2001. Nonetheless, the U.S. agreed with non-discrimination of article 68 of Brazil 's Industrial Property Law, but argued that it is a protectionist measure, intending to create jobs domestically extensively though out all technology fields. These considerations regarding articles 7 and 8 of the TRIPS Agreement would be discussed in
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