Harmonizing Patent Law under TRIPS - A Critical Review

Abstract

Prior to the TRIPS Agreement, countries framed their Intellectual Property laws as per their social needs. The TRIPS Agreement has attempted to harmonize inter alia Patent laws by defining the chief elements of patent protection, namely, the subject-matter of Patent; the Patent rights, the exceptions and the minimum term of Patent. The present paper critically reviews the important provisions of TRIPS Agreement regulating the Patent Law. This paper concludes that, although the TRIPS Agreement was aimed at harmonizing patent law, it left the core aspects of patentability namely, patentable subject matter, novelty, inventive step and utility undefined, vague and ambiguous creating room for diverse interpretations leading to further de-harmonization. There is no uniformity regarding the core standards of patentability and patent scope among the member states. The absence of uniformity in patentability standards in the member states has deviated the basic objectives of TRIPS itself, making the TRIPS agenda of global standardization futile. Even after passage of many years for implementation of TRIPS agreement, it is difficult to claim that any sort of “minimum standard” exists on a global scale.

Keywords: TRIPS Agreement, Patent Law Harmonization, Patentability under TRIPS. Implementation of TRIPS