TRIPS articles 65.5, 70.8 and 70.9

[James Love <love@cptech.org>]

Some persons interested in certain aspects of the transition
rules might want to look at TRIPS articles 65.5, 70.8 and 70.9.
Article 65.5 says you cannot have a lesser degree of "consistency"
with the TRIPS during the transition period.  Article 70.8
says even before countries have to award patents, they have to
set up a provision for accepting patent applications.  This is
the so called "mail-box" requirement.

Article 70.9 says that during the transition, if a patent 
request is pending, and the same patent has been awarded in 
another country, the country has to give 5 years of 
exclusive marketing rights.  This has been a big factor
in the Thailand case.  

http://www.wto.org/wto/intellec/8-iptrns.htm


              Article 65.5

        Transitional Arrangements

5.    A Member availing itself of a transitional period under 
paragraphs 1, 2, 3 or 4 shall ensure that any changes in its 
laws, regulations and practice made during that period do not 
result in a lesser degree of consistency with the provisions 
of this Agreement.


http://www.wto.org/wto/intellec/9-ipinar.htm

                   Article 70.8, 70.9

         Protection of Existing Subject Matter


8.    Where a Member does not make available as of the date of
entry into force of the WTO Agreement patent protection for
pharmaceutical and agricultural chemical products commensurate
with its obligations under Article 27, that Member shall:

    (a)    notwithstanding the provisions of Part VI, provide as
from the date of entry into force of the WTO Agreement a means by
which applications for patents for such inventions can be filed; 

    (b)    apply to these applications, as of the date of
application of this Agreement, the criteria for patentability as
laid down in this Agreement as if those criteria were being
applied on the date of filing in that Member or, where priority
is available and claimed, the priority date of the application;
and 

    (c)    provide patent protection in accordance with this
Agreement as from the grant of the patent and for the remainder
of the patent term, counted from the filing date in accordance
with Article 33 of this Agreement, for those of these
applications that meet the criteria for protection referred to in
subparagraph (b). 

9.    Where a product is the subject of a patent application in a
Member in accordance with paragraph 8(a), exclusive marketing
rights shall be granted, notwithstanding the provisions of Part
VI, for a period of five years after obtaining marketing approval
in that Member or until a product patent is granted or rejected
in that Member, whichever period is shorter, provided that,
subsequent to the entry into force of the WTO Agreement, a patent
application has been filed and a patent granted for that product
in another Member and marketing approval obtained in such other
Member. 


-- 
James Love / Director, Consumer Project on Technology
http://www.cptech.org / love@cptech.org
P.O. Box 19367, Washington, DC 20036
voice 202.387.8030 / fax 202.234.5176