(1998; 97 pages) [French] [Spanish]
1.4 The protection of intellectual property rights before the WTO
Intellectual property law, and especially patent law, is primarily national law. An inventor who files a patent application in a State is asking that State to recognize his exclusive right to his invention within the territorial boundaries of that State. There is not yet a world patent issued by a World Patent Office. The World Intellectual Property Organization (WIPO*), among its other tasks, administers the application of the conventions within its field of competence. But each State alone is responsible for the patents it decides to grant or not to grant on its territory. Thus the monopoly conferred by a patent can only be accorded in States that recognize its existence. Before the Uruguay Round, many States did not issue patents for pharmaceuticals on their territory, which meant that the inventor had no particular right over his invention in that country, hence the proliferation of copies of patented drugs in some countries.
At the international level, the regulation and protection of intellectual property rights had previously been managed mainly by WIPO. But WIPO conventions, and in particular the Paris Convention, only impose general rules, such as the rule on national treatment which requires equivalent treatment for foreigners and nationals. Another example is the rule on the right of priority, which permits the organization of protection of a right in several countries. Moreover, these conventions on intellectual property are not binding upon the States that have not ratified them. The GATT itself did not deal with the level of intellectual property protection, although it contains some provisions of relevance in Articles III, IX and XX(d). These provisions were hardly discussed until the GATT ministerial meeting in 1982 brought up the problem of counterfeit goods* in international trade. The pharmaceutical industry in some developed countries had complained of commercial losses due to the weakness of intellectual property rights protection in most of the newly industrializing countries (NIC).
Some countries appeared to be influenced by the perception that their competitiveness, dependent on technology and creativity, was not adequately protected worldwide by existing rules on intellectual property. The inadequacies of protection and rules related to IPR’s enforcement, together with the absence of an international dispute settlement system led them to argue for the inclusion of intellectual property matters into the trade negotiations. Respect for intellectual property rights would then be made a prerequisite for the granting of the benefits anticipated in the WTO Agreement. Thus intellectual property was added to the agenda of the Uruguay Round trade negotiations.