NEW DELHI – Is the United States in breach of TRIPS? This was the hypothesis outlined by Daniel E. Altman and Harnik Shukla, speaking during the second day of the 8th Global IP Convention here. Altman is a partner and Shulka an associate in the Orange County, California, office of Knobbe, Martens, Olson & Bear.

TRIPS requires World Trade Organization members to provide certain IP rights and follow enforcement procedures, with the ultimate goals being harmonization, uniformity, and consistency, the speakers said. In particular, they noted, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial application. 

Under TRIPS, the US (and other signatories) may exclude inventions necessary to protect public order and health. However, under a variety of US case law, laws of nature, abstract ideas and natural phenomena are all excluded from patent protection. 

In addition, although the US Congress has incorporated provisions of TRIPS into relevant laws, statutes should be interpreted to not conflict with the international treaty, and no provision of the TRIPS treaty has effect if it is inconsistent with US law, said Altman and Shulka, who also explained that violation of TRIPS does not create a direct cause of action in a US court. 

The WTO provides a dispute settlement system whose jurisdiction includes violations of TRIPS, but only member countries, not individual companies, can participate in the system. “Does anyone in audience wish to lobby the Indian government to raise such a complaint?” the speakers asked.