The Declaration on Patent Protection: Regulatory sovereignty under TRIPS was drafted under the auspices of the Max Planck Institute for Innovation and Competition in Munich. It is the result of two decades of intensive research and prepared with the support of scholars all over the world. It has been issued in the context of the 20th anniversary of the establishment of the WTO and the adoption of the TRIPS Agreement on 15 April 1994.

The purpose of the Declaration indicates the interpretive scope of the TRIPS norms. Overall, it remains neutral – it is neither directed at states with a specific level of development nor does it aspire to provide recommendations for legal action. It only points out the regulatory discretion that national legislators enjoy when it comes to implementing their own patent systems.

According to the drafters

“Sovereign states should retain the discretion to adopt a patent system that best suits their technological capabilities as well as their social, cultural and economic needs and priorities, with the proviso that the exercise of such discretion must remain within the boundaries of international law. Taking into account the customary principles of interpretation of international law, this Declaration seeks to shed light on these boundaries. The purpose is to clarify the policy space that the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) leaves to national legislators and judicial authorities with regard to the implementation and administration of their patent systems.”

The Declaration deals accordingly with the following aspects of patent law: a) general principles; b) differentiation of fields of technology; c) patentability and disclosure; d) scope of protection; e) exhaustion issues; f) exceptions to the scope of protection; g) compulsory licence; h) government use; i) undisclosed information; j) enforcement; k) goods in transit; and l) criminal measures.

The Declaration on Patent Protection shows that it is possible to design a patent system that reflects both the interest of inventors and right holders as well as the national public interest, without infringing the international obligations of WTO members and taking advantage of the TRIPS Agreement flexibilities.

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