Understanding TRIPS 1995: A Milestone in Intellectual Property Rights

When the World Trade Organization came into existence on January 1, 1995, it brought with it a landmark agreement that fundamentally changed how intellectual property is treated in international trade. The Agreement on Trade-Related Aspects of Intellectual Property Rights – universally known as TRIPS – introduced IP law into the multilateral trading system for the first time, setting binding minimum standards that every WTO member state must follow. For law students in India, understanding TRIPS is not just an academic exercise. It directly shaped Indian patent law, the pharmaceutical industry, and how India balances public health obligations with international trade commitments.

What is the TRIPS Agreement and how did it come about? 🔗

Before the Uruguay Round of negotiations (1986-1994), there was no comprehensive multilateral treaty specifically governing intellectual property in the context of international trade. The older framework under GATT 1947 had limited provisions touching on IP, but no dedicated standards. Developed nations – particularly the United States and members of the European Community – pushed hard for a unified global IP regime, arguing that weak IP protection in developing countries was costing their industries billions in lost revenues from piracy and counterfeiting.

The result was TRIPS, concluded as Annex 1C of the Marrakesh Agreement signed on April 15, 1994, and entering into force on January 1, 1995. It remains, to this day, the most comprehensive multilateral agreement on intellectual property in existence. All 164 WTO member countries are bound by it – there is no opt-out. Joining the WTO means accepting TRIPS as part of a “single undertaking.”

Core structure: what does TRIPS actually cover? 🔗

TRIPS is organized around three main pillars: standards of protection, enforcement mechanisms, and dispute settlement. Together, these pillars move IP protection from a matter of domestic discretion into a binding international obligation.

Categories of intellectual property covered 🔗

The agreement covers a wide range of IP categories. According to the WTO, these include copyrights and related rights, trademarks and service marks, geographical indications, industrial designs, patents (including plant varieties), integrated circuit layout-designs, and undisclosed information such as trade secrets. Each category has its own set of minimum standards defined within the agreement.

Minimum standards of protection 🔗

A defining feature of TRIPS is that it sets minimum standards, not maximum ones. Countries are free to provide stronger protection if they choose, but they cannot fall below what TRIPS requires. These standards are established partly by incorporating the core substantive obligations of two pre-existing WIPO conventions – the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works – and then adding significant new obligations on top. This is why TRIPS is sometimes called a “Berne and Paris-plus” agreement.

Some key minimum standards set by TRIPS include: copyright terms of at least 50 years (unless measured by the life of the author), computer programs treated as literary works, patent protection available in all fields of technology for a minimum of 20 years from the filing date, and industrial designs protected for at least 10 years.

The principle of non-discrimination: national treatment and MFN 🔗

Two foundational non-discrimination principles run through TRIPS, and understanding them is essential for any student of international IP law.

National treatment 🔗

National treatment requires that each WTO member must give the nationals of other member countries IP protection that is no less favorable than it gives to its own nationals. Article 3 of TRIPS codifies this principle, ensuring that a foreign author, inventor, or trademark owner is not treated worse than a domestic one when seeking IP protection in any member country.

Most-favoured-nation (MFN) treatment 🔗

Most-favoured-nation (MFN) treatment goes a step further. Under Article 4 of TRIPS, any advantage given to nationals of one country must be extended immediately and unconditionally to the nationals of all other WTO members. So if India grants a particular IP benefit to rights-holders from Germany, it must automatically extend that same benefit to rights-holders from every other WTO member. This principle ensures that no WTO country receives a privileged position in IP protection at the expense of others. Exceptions exist – for example, advantages arising from pre-existing bilateral agreements – but these must be notified to the TRIPS Council.

Patents under TRIPS: a landmark shift 🔗

The provisions on patents represent one of the most consequential parts of TRIPS, especially for developing countries like India. Prior to TRIPS, countries had wide discretion in defining what could be patented and for how long. TRIPS changed this fundamentally.

Under TRIPS, patents must be available for inventions in all fields of technology, provided they meet the standard tests of novelty, inventive step, and industrial applicability. The minimum patent term is 20 years from the date of filing. Countries may exclude certain inventions from patentability – such as those contrary to public order or morality, diagnostic methods, and essentially biological processes for producing plants or animals – but these exceptions are specifically defined and limited.

Critically, TRIPS also requires that patent rights extend to both products and processes. This distinction matters enormously in the pharmaceutical sector, where some countries had previously allowed process patents only – meaning a competitor could make the same drug using a different manufacturing method, keeping generic medicines affordable. TRIPS closed this flexibility for most purposes.

TRIPS and India: a transformative relationship 🔗

India’s engagement with TRIPS is one of the most studied examples of how a developing country navigates its international IP obligations while protecting domestic interests.

Before joining the WTO, India’s Patents Act 1970 did not allow product patents in pharmaceuticals and agrochemicals – only process patents. This enabled Indian companies to reverse-engineer drugs and produce affordable generics, making India one of the world’s largest suppliers of low-cost medicines. TRIPS required India to overhaul this system in three stages. The Patents (Amendment) Act 1999 implemented the “mailbox” procedure under Article 70.8, storing pharmaceutical patent applications without examination. The 2002 amendment extended the patent term to 20 years and revised compulsory licensing provisions. Finally, the 2005 amendment introduced full product patent protection for pharmaceuticals, as required before January 1, 2005.

Section 3(d): India’s creative response 🔗

India did not simply capitulate to TRIPS demands. The 2005 amendment introduced Section 3(d) of the Patents Act, which prevents the grant of patents on new forms of known substances – such as new salts, esters, or polymorphs – unless they demonstrate significantly enhanced efficacy. This provision directly targets a practice known as “evergreening,” where pharmaceutical companies make minor modifications to extend patent life without meaningful therapeutic improvement. The Supreme Court upheld Section 3(d) in the landmark Novartis AG v. Union of India (2013) case, confirming that India’s implementation of TRIPS was consistent with international obligations while protecting public health.

Compulsory licensing 🔗

TRIPS does not ban compulsory licensing – the granting of a license to produce a patented product without the patent holder’s consent. Article 31 sets conditions for its use: prior attempts to obtain a voluntary license, non-exclusive use, and adequate remuneration to the patent holder. India used this provision when, in 2012, the Indian Patent Office granted the country’s first-ever compulsory license to Natco Pharma for a generic version of Bayer’s cancer drug Nexavar. The original drug was priced far beyond the reach of most Indian patients; the compulsory license brought the monthly cost down dramatically, with Natco paying royalties to Bayer at 6% of sales.

Enforcement: giving IP rights real teeth 🔗

A major innovation of TRIPS over earlier IP conventions is its comprehensive enforcement framework. Prior international IP agreements focused primarily on defining standards of protection; TRIPS goes further by requiring member countries to make available effective domestic procedures for enforcing IP rights. These include civil and administrative remedies, provisional measures such as injunctions, border measures allowing customs officials to seize infringing goods, and criminal procedures for willful trademark counterfeiting and copyright piracy at a commercial scale.

Unlike other international IP agreements, TRIPS has a powerful enforcement mechanism at the international level as well – member states that fail to comply can be brought before the WTO’s Dispute Settlement Body (DSB). The DSB can authorize retaliatory trade measures, giving TRIPS an enforcement bite that earlier WIPO conventions simply lacked. This integration of IP enforcement into the broader trade system is what truly sets TRIPS apart.

The Doha Declaration: TRIPS with a human face 🔗

From the outset, developing nations raised concerns that TRIPS tilted the balance too far in favor of IP holders, particularly in the pharmaceutical sector. These concerns came to a head at the 2001 WTO Ministerial Conference in Doha, Qatar. The resulting Doha Declaration on TRIPS and Public Health affirmed that TRIPS must be interpreted in a way that supports public health and promotes access to medicines for all. It clarified that each WTO member has the right to grant compulsory licenses and the freedom to determine the grounds on which such licenses are granted.

A further amendment in 2005 (entering into force in 2017 as Article 31bis) created a formal legal mechanism allowing countries that cannot manufacture medicines domestically to import generic versions made under compulsory license from other countries. This amendment directly addressed the needs of the least-developed countries and remains the only amendment to the TRIPS Agreement to date.

Criticisms of TRIPS 🔗

TRIPS has attracted sustained criticism from economists, public health advocates, and developing-country governments. Nobel laureate Joseph Stiglitz argued that TRIPS essentially imposed the dominant IP regime of the US and Europe on the rest of the world – a regime he considered unfavorable even for those developed nations themselves, and even more so for developing countries. The agreement’s effects on concentrating IP-generated wealth in developed nations and restricting access to affordable medicines in lower-income countries remain live debates in international law and trade policy.

At the same time, proponents argue that robust IP protection incentivizes innovation, technology transfer, and foreign direct investment, ultimately benefiting all economies that participate in the global trading system on equal terms.

Why TRIPS remains relevant today 🔗

Nearly three decades after it came into force, TRIPS continues to shape the global IP landscape. Debates around access to COVID-19 vaccines – including India and South Africa’s proposal for a TRIPS waiver in 2020 – demonstrated that the tensions built into the agreement are far from resolved. The question of how to balance patent monopolies with access to essential medicines remains as urgent as ever. For Indian law students, TRIPS is not a historical artifact but a living framework whose provisions, flexibilities, and limitations are continuously tested in courts, trade negotiations, and public health emergencies.

What do you think? Does the TRIPS Agreement strike a fair balance between protecting the interests of innovators and ensuring that developing countries like India can access affordable medicines? And given that Section 3(d) of the Indian Patents Act was India’s creative response to TRIPS obligations, should other developing nations adopt similar anti-evergreening provisions to protect their populations?

References

1. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
2. https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm
3. https://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm
4. https://en.wikipedia.org/wiki/TRIPS_Agreement
5. https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm
6. https://www.wto.org/english/tratop_e/trips_e/trips_notif4_art4d_e.htm
7. https://eur-lex.europa.eu/EN/legal-content/summary/wto-agreement-on-trade-related-aspects-of-intellectual-property.html
8. https://www.lawctopus.com/academike/impact-of-trips-on-pharmaceutical-industry/
9. https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/compulsory-licensing-india-and-changes-brought-it-trips-agreement-2021-10-12_en
10. https://www.wipo.int/wipolex/en/treaties/details/231
11. https://pmc.ncbi.nlm.nih.gov/articles/PMC7468182/