Elgar Commentaries series
Essentially, TRIPS imposes three separate ‘undisclosed information’ schemes: first, the traditional ‘unfair competition’ requirements from the Paris Convention (1967) Article 10bis; second, a TRIPS-specific trade secrets and the like scheme directed to commercially valuable information; and third, a new chemical entity pharmaceuticals and agricultural chemical products test and other data scheme directed to data submitted to governments as part of regulatory compliance arrangements. The advance for TRIPS was to extend the concept of ‘unfair competition’ from the Paris Convention (1967) Article 10bis to all WTO Members as required by TRIPS Article 2.1, and expand the minimum scope of protection for some other undisclosed information and data. While a range of views have interpreted the significance of various Member contributions during the negotiation of TRIPS, the outcome in Article 39 appears to involve three distinct and overlapping schemes for: ‘unfair competition’ according to the Paris Convention (1967) Article 10bis (Article 39.1); a specific trade secrets and the like protection (Article 39.2); and a specific protection for data required for regulatory approval of new chemical entity pharmaceuticals and agricultural chemical products (Article 39.3). The most significant contribution of TRIPS has been in codifying the mini- mum requirements for the latter two specific protection schemes. Unfortunately, the text remains uncertain, perhaps reflecting the ongoing evolution of these schemes and the failure of the TRIPS negotiations to establish key parameters to the schemes, such as the term (period) of protection.
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