Minutes - TRIPS Council - View details of the intervention/statement

Mr. S. Harbinson (Hong Kong)
United States of America
I.i Compliance with Article 70.2
60. The representative of the United States informed the Council that his delegation was consulting with another Member on that Member's application of the provisions of Article 70.2 of the Agreement in relation to existing patents. One feature of Article 70.2 was that it required a Member to apply the provisions of the TRIPS Agreement to existing intellectual property that was still under protection at the time that these provisions came into effect in that Member. Consequently, existing patents should benefit from protection in accordance with the patent provisions of the Agreement. If a patent had been granted before the application of TRIPS implementing legislation under a law that provided for a patent term of ten years, and that patent would still be under protection at the time that TRIPS obligations became effective, the patent should, under Article 70.2, benefit from the patent term stipulated in Article 33 of the TRIPS Agreement, i.e. 20 years from the filing date of the patent application on which the patent in question had been granted. 61. He also wished to address another issue related to Article 70.2. His delegation had started a dispute settlement procedure with the Government of Japan concerning the application of Article 70.2 in respect of rights in sound recordings.3 Article 70.2 referred, in this regard, to Article 14.6 of the Agreement which laid down that protection of rights in sound recordings under the Agreement should extend to existing sound recordings in accordance with the provisions of Article 18 of the Berne Convention. Given that the Agreement laid down a term of protection of 50 years in respect of rights in sound recordings, this meant, in his delegation's view, that TRIPS-consistent legislation in this area that applied as of 1 January 1996 should extend protection to all sound recordings that existed since 1946.