The Trade-Related Aspects of Intellectual Property Rights Agreement and the World Trade Organization Dispute Settlement Body-- With a Focus on the Protection and Limitation of Patent Rights in Article 30 --

• Main Authors: Yang , Shu Ling, 楊淑玲
• Other Authors: Luo, Chang Fa
• Format: Others
• Language: zh-TW
• Published: 2003
• Online Access: http://ndltd.ncl.edu.tw/handle/82391915049758759327

碩士 === 東吳大學 === 法律學系研究所 === 91 === The Trade-Related Aspects of Intellectual Property Rights Agreement and the World Trade Organization Dispute Settlement Body -- With a Focus on the Protection and Limitation of Patent Rights in Article 30 -- Abstract Since the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement went into effect on January 1, 1995, disputes regarding patent rights have comprised the largest category of disputes among WTO member economies submitted to the WTO Dispute Settlement Body (DSB). Through the process of attempting to resolve these disputes, the DSB has amassed a body of legal interpretations of the TRIPS Agreement, and at the same time has integrated the realms of intellectual property rights and international trade, which were traditionally under the jurisdiction of separate international organizations. In the wake of these developments, the compatibility of the various relevant regulations has become the subject of much discussion. This thesis addresses the special and complex structure and substantive norms of the TRIPS Agreement within the context of WTO agreements, and the issue of balancing TRIPS Agreement standards of patent-right protection with such principles as public interest, as well as problems engendered when the WTO Dispute Settlement Body handles related disputes. This thesis is generally divided into discussions of the procedural norms of dispute settlement, and of substantive norms. When processing violation complaints against the TRIPS Agreement, the DSB should, in addressing substantive violations of protection obligations by a member, avoid exercising excessive infringement of the member state’s sovereignty, allowing a certain degree of respect for the member state’s right of determination. In addition, the DSB should adopt systematic-complaint principles for determining when members have violated their obligations to enforcement. Currently, WTO regulations covering non-violation complaints are not actually applied to the TRIPS Agreement. However, because of fundamental discrepancies between the obligations of the TRIPS Agreement and tariff reduction commitments within the General Agreement on Tariffs and Trade (GATT), the initially designated functions of the non-violation complaint settlement system have already been replaced, following structural changes to the system of multilateral trade norms. Thus, whether the non-violation complaints settlement system will be applied to the TRIPS Agreement is an issue worthy to be examined anew. The section of this thesis examining substantive norms of dispute settlement firstly analyzes the patent rights standards of the TRIPS Agreement itself and explains some of the regulations of the Paris Convention for the Protection of Industrial Property which TRIPS Agreement directly incorporated, and secondly analyzes the legal framework of the TRIPS Agreement and predispositions of the WTO Dispute Settlement Body in balancing the private interests of patent holders and public interest, as demonstrated in the Canada-Patent Protection case, as it relates to Article 30 of the TRIPS Agreement. The tendency of the TRIPS Agreement and the DSB to excessively favor the protection of patent holders’ private interests has not only elevated intellectual property rights as an absolute and overruling imperative, but also has the potential to inappropriately sideline other rights and values that participating bodies within the multilateral framework of the WTO ought to enjoy, and also restricts the degree of autonomy WTO member states possess in formulating policies and regulations limiting patent rights based on public and administrative interests.