Introduction

Various intellectual inventions and creativity have a significant impact on the world
today. As these innovations and concepts grow more popular and successful, the
inventor’s efforts to promote and defend them become increasingly crucial. Beyond just
shipping goods across borders, the concept of commerce and what makes trade useful
for nations have developed. In today’s international trade, innovation, creativity, and
branding account for a significant portion of the value exchanged. How to increase this
value and make it easier for the innovation-rich commodities and services to flow across
borders have become important factors in development and trade policy.
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is crucial for
promoting trade in knowledge and innovation, resolving intellectual property trade
disputes, and ensuring World Trade Organization (WTO) members’ freedom to pursue
their domestic goals. The agreement is a formal acknowledgment of the importance of
intellectual property and trade relations. Before studying the TRIPS agreement in detail,
one should have a brief knowledge about Intellectual Property Rights (IPR).

What are intellectual property rights

“Intellectual Property shall include rights relating to literary, artistic, and scientific works,
discoveries throughout all areas of human endeavor, scientific advances, industrial
design rights, trademarks, service marks, and commercial names and designations,
protection against unfair competition,” states Article 2 of the WIPO (World Intellectual
Property Organization) – Central Organization for the Protection of Intellectual Property
laws and the UN expert organization.
Intellectual property rights are the rights granted to individuals over the creation of their
minds. For a set period of time, they usually grant the creator exclusive rights to use his
or her creation. Intellectual property (IP) is a non-tangible asset developed by the human
mind. Business organizations may use IP to gain a competitive advantage and drive their
growth. Intellectual property ownership interests, like any other property, can be
assigned, licenced, or otherwise passed to third parties.
Internationally, intellectual property rights (IPR) are valued and exchanged. The WTO’s
TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement recognises the
importance of IP in international trade. The TRIPS Agreement establishes basic
requirements for member governments’ IPR protection.

The TRIPS Agreement in detail

How it all started?

As intellectual property grew more significant in commerce, the level of protection and
enforcement of these rights varied greatly throughout the world, and these variations
became a source of stress in international economic relations. New globally agreed-upon
trade standards for intellectual property rights were considered as a method to bring
greater order and predictability to the market, as well as a more systematic approach to
resolving disputes.
The General Agreement on Tariffs and Trade (GATT) was the only multilateral mechanism
overseeing international commerce until the World Trade Organization (WTO) was
established in 1995. Under GATT, there were eight rounds of negotiations, the first five of
which were solely focused on tariffs, while the sixth round included discussions on anti-
dumping measures, which included provisions for member nations to control the
dumping of goods into their territory by other nations that could harm their economies.
The Uruguay Round was the last GATT round (1986-1994). It was in this session that the
first discussions on trade linked to agriculture, services, and intellectual property rights
were conducted. All 123 countries that took part in the Uruguay Round, including India,
became members of the WTO. WTO now has 164 members, accounting for about 90% of
the world’s countries. The World Trade Organization (WTO) is in charge of negotiating
and implementing new international trade agreements. It is also responsible for ensuring
that the majority of the world’s trading nations comply with the trade agreements they
have signed. The WTO is the legal and administrative framework for managing and
growing international connections between its 157 members on a multilateral basis. Its
goal is to establish fair and secure international trading arrangements in order to
stimulate trade and investment and raise global living standards.
The TRIPS Agreement is one of the most significant WTO accords. The Agreement went
into effect on January 1, 1995.

What is the TRIPS Agreement about?

The TRIPS Agreement protects intellectual property in trade-related regions to a large
extent and is regarded as a comprehensive new framework for intellectual property
standards protection. The TRIPs Agreement also has the distinction of being the first legal
agreement to address all areas of intellectual property with a number of specific clauses.
The three main issues governed by the agreement are:

 Standard– All member states are required to provide a minimum set of

criteria for the protection of IPRs in each of the IP categories covered by the
Agreement. Each area of IP is addressed in such a way that the major aspects
of protection, such as the subject matter sought to be protected, the rights to
be granted, and possible exceptions to such rights, as well as the minimum
period of protection, are all explicitly stated.
 Enforcement– The second set of clauses focuses on domestic processes and
remedies for intellectual property rights enforcement. The Agreement
establishes a set of broad rules that apply to all IPR enforcement actions. It
also includes rules on civil and administrative processes and remedies,
provisional measures, particular border requirements, and criminal
proceedings, all of which outline the procedures and remedies that must be
provided so that the right holders can successfully exercise their rights.
 Dispute settlement– Disputes occurring between WTO members over
responsibilities emanating from the TRIPS Agreement are subject to the WTO’s
dispute resolution processes.
The whole TRIPS Agreement is further divided into seven parts which contain the
complex provisions regarding intellectual property:
Part I- General Provisions and Basic Principles (Article 1 to Article 8)
Part II- This part covers the requirements for the availability, scope, and application of
intellectual property rights. (Article 9 to Article 40)
Part III- The enforcement of IPRs is the focus of this part. (Article 41 to Article 61)
Part IV: This part covers the procedures for obtaining and maintaining intellectual
property rights. (Article 62)
Part V: This part deals with the prevention and resolution of conflicts resulting from the
provisions of the Agreement. (Article 63 to Article 64)
Part VI: This part is about transitional agreements. (Article 65 to Article 67)
Part VII: This part of the Agreement deals with a variety of institutional arrangements.
(Article 68 to Article 73)

General provisions and basic principles

The essential principles on the national and most-favored-nation treatment of foreign
persons are found in Articles 3, 4, and 5, and they apply to all kinds of intellectual
property covered by the Agreement. These obligations apply not only to substantive
standards of protection, but also to issues relating to the availability, acquisition, scope,
maintenance, and enforcement of intellectual property rights, as well as issues relating
to the use of intellectual property rights that are specifically addressed in the Agreement.
While the national treatment provision prohibits discrimination between a member’s own
nationals and those of other members, the ‘most-favored-nation’ treatment clause
prohibits discrimination between other members’ nationals. The exclusions authorised
under the pre-existing WIPO intellectual property treaties are likewise available under
TRIPS in terms of the national treatment commitment. Furthermore, governments have
the authority to enact legislation to prohibit right holders from abusing IPR or to
challenge practises that unfairly restrict commerce or impede the international transfer
of technology, all in accordance with the Agreement’s provisions.

Types of intellectual properties

Copyrights and related rights

The Agreement states that copyright protection only applies to phrases, ideas,
techniques, operating methods, or mathematical concepts. Literary, musical, dramatic,
photographic, sculptural, architectural, choreography, graphic, motion picture, sound
recording, multimedia work, computer programs, and other works are all given copyright.
For a certain amount of time, the owner of a copyright has the right to prevent others
from duplicating, distributing, making derivative works, performing, exhibiting, or
utilising the work covered by the copyright. The essence of copyright is originality, which
means that the work was created by the copyright owner or claimant. A work of
originality, on the other hand, does not have to be innovative. In copyright law, originality
does not entail innovation.
The Berne Convention protects computer programs in both source and object code, and
compilations of data in machine-readable or other formats constitute creative works due
to the selection or arrangement of their contents and are thus protected by the
Agreement. In the case of computer programs and cinematographic works, authors are
granted the right to approve or restrict commercial renting of originals or copies of
protected works to the public. However, if giving rental rights leads to widespread
copying of such works, jeopardising the work’s uniqueness, member governments can
revoke such rights. The term of protection extends up to not less than 50 years as per
Article 12 of the Agreement.

Trademarks
Article 15 states that any sign, or set of signs, able to distinguish one undertaking’s
products and services from other undertakings’, shall be eligible for trademark
registration, provided that it is clearly detectable. Such signs, in particular words,
characters, digits, figurative components, and colour combinations, as well as any
combination of these signs, must be acceptable for trademark registration. According to
Article 16, the trademark owner has the exclusive right to restrict third parties from using
similar or identical signs for products or services that are similar to those for which the
trademark is registered.

Geographical indications
As per Article 22, geographical indications designate a good as coming from a member’s
territory, or an area or place within that territory, where the good’s quality, reputation, or
other attribute is largely due to its geographical origin. Traditionally, some commercial
items have been manufactured in a geographically defined territory. In commercial
relations, the geographical indicator becomes the dependable “carrier” of qualifying
product features when these items are accredited to certain criteria fundamentally due
to their geographical provenance. The purpose and value of geographical indications are
subsequently given to trademarks, and they are entitled to legal protection.
Industrial designs
Articles 25 and 26 of the agreement says members must ensure that fresh or unique
industrial designs generated independently are protected. The Agreement, which is
based on the Paris Convention but goes much beyond it, promises to preserve industrial
designs for a minimum of 10 years. When such activities are conducted for commercial
objectives, the right holder can ban third parties who do not have the holder’s agreement
from producing, importing or selling items that incorporate the protected design.

Patents
According to Article 27 of the agreement, a patent is an intellectual property right (IPR)
awarded to inventors. The inventor, as the patent owner, has the right to prevent
anybody else from creating, using, selling, or importing the patent-protected invention in
a specified region for a set length of time.
The basic criterion of patentability is subject to three exceptions. One is for innovations
that are against the public good or morals- this includes inventions that are harmful to
human, animal, or plant life or health, or that are substantially harmful to the
environment.
Members may also exclude diagnostic, medicinal, and surgical procedures for the
treatment of people and animals from patentability.
The length of protection is normally 20 years from the date of filing of the patent
application. Member nations could provide specific exemptions to exclusive rights
conferred by a patent under Article 21 of the Agreement, given that such exclusions do
not unreasonably conflict with a normal exploitation of the patent and therefore do not
unreasonably bias the patent owner’s legitimate interests, taking into consideration the
legitimate interests of third parties. Furthermore, Article 29 mandates that the patent
filing discloses the innovation in a manner that is explicitly clear and complete for a
person knowledgeable in the art to carry out the invention. Article 31 of the Agreement
contains provisions that allow the government of a member nation to award a
compulsory licence for medicines without the patentee’s approval, subject to specific
circumstances.

Layout-Designs (Topographies) of Integrated Circuits

Importing, selling, or distributing (for commercial reasons) a secured layout design, an
integrated circuit where a secured layout design is implemented, or an article including
such a circuit is prohibited under Article 36 of the Agreement. From the date of filing an
application for layout designs, the protection offered in this sector of IP is at least ten
years. According to Article 37, member countries may limit the length of protection to
fifteen years from the date of development of the layout design.

Protection of undisclosed information

The information which is undisclosed is referred to as a trade secret. Article 39 of the
Agreement requires member states to provide trade secret protection in accordance with
the Agreement’s provisions. TRIPS mandates that member countries should create
national legislation to prevent such information from being revealed to, obtained by, or
used by third parties without the agreement of the person who is lawfully in possession
of it, in a manner that is inconsistent with fair trade practises. Such information must be
confidential, have commercial value as a result of its confidentiality, and have been
subjected to reasonable efforts to keep it hidden in order to be granted protection.

Control of anti-competitive practises in contractual licences

Members of the Agreement believe that some licensing arrangements or restrictions
relating to IPR that restrict competition may have a negative impact on trade and impede
technological transfer and dissemination. The clause allows for government discussions
in cases where there is an infringement of intellectual property rights that has a negative
impact on competition. On some occasions, the TRIPS Agreement waives some of the
requirements necessary for a compulsory licence of a patent, such as when the
government gives the compulsory licence to correct an anti-competitive activity.

Enforcement
Governments must guarantee that IPR can be implemented to prevent or discourage
infringement, according to the Agreement. The methods must be just and equal, as well
as not overly cumbersome or expensive. They shall not impose unreasonable deadlines
or unjustified delays. People concerned must be allowed to request a court review, an
administrative decision or appeal a lower court’s judgement. The TRIPS agreement goes
into great detail about how to defend intellectual property rights, including requirements
for gathering evidence, interim measures, injunctions, damages, and other penalties. It
states that courts must have the authority to compel the disposal or destruction of
objects that infringe on intellectual property rights under specified situations. On a
commercial scale, wilful trademark counterfeiting or copyright infringement must be
prosecuted as a crime. Governments must also ensure that holders of intellectual
property rights can get assistance from customs authorities to prevent the import of
counterfeit and pirated goods.

Prevention and resolution of conflicts resulting

from the provision of the TRIPS Agreement
The TRIPS Council is in charge of the provisions relating to dispute resolution and
prevention. The common register, which contains a compilation of laws and regulations,
final judicial decisions, and other information pertaining to the Agreement, should be
established, Article 63 establishes an obligation to notify laws and regulations to the
TRIPS Council or the WIPO. Article 64 of the Agreement outlines processes for preventing
and resolving disputes. For this aim, the WTO Agreement’s integrated dispute settlement
procedure will apply to TRIPS issues.

Transitional agreements
The TRIPS agreement allowed countries to delay the implementation of its terms for
various lengths of time. These timeframes specify the period between when the
agreement entered into force (on January 1, 1995) and when it got implemented in
member countries. The following are the major transition periods:

1. Developed countries were given a one-year transition period following the WTO
Agreement’s entry into force, i.e. until January 1, 1996.
2. Developing nations were given an extra four years (until January 1, 2000) to
implement the agreement’s provisions, with the exception of Articles 3, 4, and
5, which deal with broad principles like non-discrimination.
3. Transition economies, i.e. countries in the process of transitioning from
centrally planned to market economies, could also benefit from the same
postponement (until January 1, 2000) if they fulfilled specific additional criteria.
4. Least-developed nations were given an additional eleven-year transition time
(until January 1, 2006), with the option of an extension. The transition period
has been prolonged three times, and now continues until July 1, 2034, or until
a member no longer qualifies as a Least Developed Country (LDC), whichever
comes first.
Institutional arrangements
Article 68 of the TRIPS Agreement establishes The TRIPS Council. The TRIPS Council
oversees the administration of this Agreement, including members’ compliance with their
duties under it, and provides members with the opportunity to consult on trade-related
aspects of intellectual property rights. It carries out any other obligations that the
members delegate to it, including providing any help sought by them in the context of
dispute resolution procedures. The TRIPS Council may consult with and obtain
information from any source it finds relevant in carrying out its tasks.

Need for the TRIPS Agreement

IP protection was supposed to help not only promote technical innovation but also the
transfer and spread of new technology in a way that benefits both its producers and
users while maintaining a balance of rights and duties, all with the purpose of increasing
social and economic wellbeing. As a result, the TRIPS Agreement’s primary objectives
included reducing trade distortions and obstructions by supporting effective and
appropriate protection of IPRs, as well as ensuring that measures and processes for
enforcing IPRs do not become hurdles to legitimate trade.
Currently, the rise in IP legislative activity, as well as the quick adoption of TRIPS-covered
IP rights, demonstrated the TRIPS Agreement’s centrality in the global trade system. The
TRIPS Agreement continues to play a key role in facilitating international trade in
knowledge, resolving trade issues over IP, and guaranteeing WTO members the latitude
to achieve their domestic objectives, while IP is at the core of attempts to obtain benefits
from innovation and creativity in today’s global economy.

Advantages and disadvantages of the TRIPS

Agreement

Advantages of the TRIPS Agreement

 Transparency in IP policy was brought to the world’s attention.
 WIPO’s existing international legal system, which was designed and controlled
by them, was greatly enhanced by this agreement.
 Trade conflicts over intellectual property concerns were reduced by
establishing a clear, rules-based framework for resolving disputes.
 It has aided in the acquisition and exercise of intellectual property rights, as
well as providing a solid platform for the trade in knowledge products.
 In developing countries, the number of patent applications is increased

Disadvantages of the TRIPS Agreement

 TRIPS mandates high levels of patent protection.
 Fertilisers, insecticides, pharmaceutical items, and procedures were not
protected by patents, resulting in low-cost food and drugs.
 Education and technology transfer were fostered by the lack of copyright
protection for informational products.
 Jobs in the local imitative industries were lost.
 In general, increased prices resulted in significant deadweight losses, with
minimal stimulation of local innovation.
 Traditional knowledge is not protected in any way.
TRIPS Agreement : a boon or bane for
developing countries
The agreement imposes essential and obligatory requirements on signatory member
nations to implement basic levels of intellectual property right protection in all of its
elements. However, this Agreement has far-reaching implications for developing nations,
as rigid intellectual property restrictions stifle the growth of indigenous enterprises in
these areas. Intellectual property rights, although vital, must be implemented with
caution in developing nations since they can harm the economy, public health, and so
on. The principal consequences of the patent protection regime have a deterring effect
on the expansion of local sectors, such as pharmaceuticals.
Intellectual property should not be used to thwart the interests of developing nations,
such as public health, which is already being harmed. As a result, a re-evaluation is
necessary. In addition, when the situation demands them, the exceptions to the
intellectual property rights shall be implemented effectively and strictly.
The TRIPS Agreement has had a considerable impact on IPR protection in poor nations
but has had a little discernible impact on IPR protection in developed countries. This
outcome is consistent with the TRIPS Agreements’ requirements being established to be
as near as possible to IPR protection systems already in existence in many developed
nations. To comply with the TRIPS Agreement, developed nations did not need to make
significant changes to their policies. And also the Nations that rely heavily on exports to
countries that advocated for the TRIPS Agreement’s inclusion in the WTO (i.e. developed
countries) may take the possibility of retaliatory trade penalties seriously since they
stand to lose a lot of money in lost exports. This demonstrates the TRIPS Agreement’s
effectiveness as a coercive threat in international economic negotiations.
Numerous objections have been leveled against the TRIPS Agreement’s validity and
efficacy, particularly in relation to poor nations. Even famous free-trade proponents like
Martin Wolf have criticised TRIPS for its “hypocrisy” viewing it as a rent-seeking device
from many poor nations, with potentially disastrous consequences for education, public
health, and economic growth. Even among nations that appear to benefit the most from
the agreement, gains may only go to certain segments of society, implying that the
actual beneficiaries from TRIPS are not developed nations, but rather the major
businesses that pushed for its adoption. TRIPS has also failed to address policymakers’
concerns, since trade balances have continued to deteriorate, and the current emphasis
on private rights may, in the long run, contribute to stifling innovation and knowledge
dissemination in developed nations. While Archibugi & Filippetti warned against
misrepresenting TRIPS’ impact, it is clear that the agreement does not work as intended.
It would have been better to establish a tiered structure that provided more meaningful
special and differential treatment based on nations’ developmental requirements. Given
that TRIPS is already firmly established inside the WTO system, it is unclear if major
revision of the agreement is possible for the sake of developing nations.

TRIPS Agreement in India:

India became an associate of the WTO and thus a participant in the TRIPS Agreement in
1995. Before the adoption of TRIPS, India had a well-established intellectual property
outline with its laws, such as the Patents Act, Copyright Act, and Trademarks Act and the
TRIPS Agreement presented certain changes and obligations that required India to modify
its prevailing intellectual property laws to comply with the international values set by the
agreement.

India has made efforts to comply with TRIPS obligations while also utilizing gives to
safeguard public health and encourage access to affordable medicines. India continues to
navigate the difficulties of intellectual property protection, seeking constancy between
innovation, public health, and traditional knowledge preservation. Member states are
grateful to create applicable national laws to implement the requirements of the TRIPS.
The TRIPS Agreement establishes minimum standards, but members may choose to
provide better intellectual property protection if they so choose and this agreement
founds the minimum requirements for intellectual property protection and the
implementation of intellectual property rights.

It also includes provisions for legal and administrative processes, temporary solutions,
financial consequences and other penalties along with border controls and also this
agreement gives member nations the option to excepted energetic biological procedures
that are being used in the production of food or medicines as well as plants and animals
from patentability.

This agreement embraces requirements for the enforcement of intellectual property

rights too, the protection of geographical indications, and the protection of confidential
information i.e., trade secrets. It also offers instructions on how to make sure the
agreement is tailed and that intellectual property rights are properly obligatory. The
TRIPS Agreement has a dispute resolution process, making it easier for member nations
to move the agreement.

It is a crucial part of the system for protecting intellectual property around the world and
it offers a uniform method for enforcing these rights and sees that all member nations
have satisfactory protection for their intellectual property rights. TRIPS govern
intellectual property rights in separate areas, including patents, copyrights, and
geographical indications.

Case Law: Bayer Corporation v. Union of India (2012)

Summary:
The Bayer case involves a patent dispute regarding the pharmaceutical drug Sorafenib
Tosylate, marketed under the product Nexavar, used to treat kidney and liver cancers.
Bayer Corporation had obtained a patent for the drug in India and therefore, Natco
Pharma, an Indian generic pharmaceutical company, filed an application seeking a
compulsory license to manufacture and sell a generic version of Nexavar, citing high
prices and limited access.
Issue:
The main issue was whether Natco Pharma should be decided a compulsory license,
allowing them to produce and sell a generic version of Nexavar without the consent of
the patent holder, Bayer Corporation and this raised interrogations about access to
affordable medicines, balancing patent rights, and addressing public health concerns.
Decision:
The Controller of Patents and the Intellectual Property Appellate Board (IPAB) granted
Natco Pharma a compulsory license to produce and sell a generic version of Nexavar. The
decision was based because Bayer Corporation's pricing of the drug made it high-priced
for the majority of patients, and Natco Pharma had established the ability to supply the
drug at a significantly lower cost.
Impact:
The Bayer case marked a significant development in India's approach to compulsory
licensing and access to affordable medicines. It set a precedent for granting compulsory
licenses founded on affordability and public health concerns. The decision highlighted the
importance of balancing patent rights with the need to promote access to life-saving
medicines at reasonable prices, particularly in an emerging country like India with a large
population in need of affordable healthcare solutions.
The case highlighted India's commitment to utilizing gives within the TRIPS Agreement,
such as compulsory licensing, to safeguard access to essential medicines for its
population. It also underscored India's exertions to address public health concerns,
particularly in cases where patented drugs are priced out of reach for numerous patients.
The Bayer case contributed to the constant dialogue surrounding intellectual property
rights, access to medicines, and the balance between innovation and public health in
India.

Conclusion
This article might be concluded by stating that, despite the importance of the TRIPS
Agreement, the developing countries have highlighted a number of concerns and flaws in
the treaty. Despite these issues, the TRIPS Agreement is often regarded as the most
comprehensive mechanism for protecting intellectual property rights. It enhances and
manifests the previous IPR conventions, the most important of which were first drafted at
the end of the nineteenth century. Certainly, these agreements were revised on a regular
basis, to permit a gradual international control of intellectual property and copyrights.
However, in comparison to the results of previous revision exercises, the TRIPS
Agreement constitutes a tremendous conceptual leap that profoundly transforms not
only how IPRs are seen internally, but also how they are implemented and disputes are
resolved.

NO
Criminal Conspiracy Abetment

1 Definition: Definition:

Section 120A of the Indian Penal Code According Section 107 of the Indian Penal
defines Criminal Conspiracy as, “When two Code, “A person abets the doing of a thing,
or more persons agree to do, or cause to be who –
done,
First - Instigates any person to do that
(1) an illegal act, or thing; or

(2) an act which is not illegal by illegal Secondly - Engages with one or more other
means, such an agreement is designated a person or persons in any conspiracy for the
criminal conspiracy doing of that thing, if an act or illegal
omission takes place in pursuance of that
conspiracy, and in order to the doing of that
thing; or
 Thirdly - Intentionally aids, by any act or
illegal omission, the doing of that thing.

2 Example : Example :

A, a public officer, is authorized by a warrant

A and B made a plan to murder C; from a Court of Justice to apprehend Z, B,
letters passed between them as to the knowing that fact and also that C is not Z,
willfully represents to A that C is Z, and
movement of C. Here both A and B are thereby intentionally causes A to apprehend
liable for indictment to a charge of C. Here B abets by instigation the
apprehension of C.
criminal conspiracy under this section
since there was an agreement between
A and B to do an illegal act, i.e., to
commit the murder of C.

3 It is an Act or a Planning to do an illegal act It is an act to instigate or to provide help to

by all the persons or any of them or by some do an illegal act by the person who is so
of them instigated

4 Criminal conspiracy is a substantive offence Abetment is not per se a substantive offence.

by itself, and is punishable as such

5 Each accused is a principal offender Abettor is not a principle offender.

6 Punishment Punishment

Section 120 of the Indian Penal Code

prescribes Punishment: Whoever abets any offence shall, if the act
abetted is committed in consequence of the
Whoever is a party to a criminal conspiracy abetment, and no express provision is made
to commit an offence punishable with death, by this Code for the punishment of such
imprisonment for life or rigorous abetment, be punished with the punishment
imprisonment for a term of two years or provided for the offence. (Section 109)
upwards, shall, where no express provision is
made in this Code for the punishment of
such a conspiracy, be punished in the same
manner as if he had abetted such offence.

7 Conspiracy is cognizable or non- Cognizable or non-cognizable, bailable or

cognizable, bailable or non bailable. non bailable