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1. INTRODUCTION 2. INTRODUCTION TO TRIPs 3. FEATURES 3.1 Non-discrimination 3.2 Duration of iprs 3.3 Scope of iprs 3.4 Licensing 3.5 Transition period for ldcs 3.6 Enforcement mechanism 4. NECESSITY 4.1 Protection 4.2 New situations and problems 4.3 US interest 4.4 Benefits to developed nations 4.5 Cost of r&d 5. DIFFERENT IPRs 5.1 Copyrights and Related rights 5.2 Trademarks 5.3 Geographical indications 5.4 Industrial designs 5.5 Patents Issues and doha rounds of talks on public health 5.6 Layout-designs of integrated circuits 5.7 Protection of undisclosed information 5.8 Control of anti-competitive practices in contractual licenses 6. IMPACT OR TRIPs ON INDIAN SECTORS 6.1 Software sector 6.2 Pharmaceutical sector I. Indian patent law 1970 II. TRIPS and public health 6.3 Agricultural sector 6.4 Traditional knowledge and bio diversity I. Reasons II. Negotiations 7. CONCLUSION 8. ENFORCEMENT 9. RECENT DISPUTES 10.CRITICISMS 11. BIBLIOGRAPHY &WEBSITES

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Ideas and knowledge are an increasingly important part of trade. Most of the value of new medicines and other high technology products lies in the amount of invention, innovation, research, design and testing involved. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, not usually because of the plastic, metal or paper used to make them. Many products that used to be traded as low-technology goods or commodities now contain a higher proportion of invention and design in their value — for example brand named clothing or new varieties of plants. Creators can be given the right to prevent others from using their inventions, designs or other creations — and to use that right to negotiate payment in return for others using them. These are “intellectual property rights”. They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brandnames and product logos can be registered as trademarks; and so on. Governments and parliaments have given creators these rights as an incentive to produce ideas that will benefit society as a whole. Intellectual Property is a term that under its umbrella covers

exclusive rights that are conferred upon a person regarding the production of the material in same or other form of representation .It includes patents, copyright laws, trade marks nindustrial design rights and trade secrets
The concept of intellectual property seeks to divorce the idea itself, which is treated as freely shareable, from the expression of the idea, the design or process, which becomes property. As the design or process becomes increasingly abstract, it becomes harder to distinguish it from the idea behind it. The difficulty in making this distinction is a serious dilemma that patent offices worldwide are having to increasingly grapple with, a problem that is becoming more serious as marketable products become more abstract in an information age.

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The extent of protection and enforcement of these rights varied widely around the world; and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. Certain agreements on IP rights already existed before the WTO was created: • the Paris Convention for the Protection of Industrial Property 1883(patents, industrial designs, etc) • the Berne Convention for the Protection of Literary and Artistic Works 1886 (copyright). However certain problems were perceived in these agreements like: 1. Some standards were weak and vaguely specified. 2. There were no effective procedures to settle disputes and hence were only statements of intentions on part of signatories. 3. They were not flexible enough to handle new technologies.

In Uraguay rounds (1987) TRIPS were included for the first time in WTO with US being the prime mover. Brazil and India were leading the opposition from the side of developing nations. Developed nations argued that entrepreneurship and innovation could never be encouraged without proper protection of intellectual property rights, while Developing nations contended that the rights of the patent-holder or inventor would need to be circumscribed by his/ her obligations to the rest of society and the world at large. TRIPS Agreement : It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. It should provide these protections in the form of enforceable private property rights. In doing so, it strikes a balance between the long term benefits and possible short term costs to society. These costs occur because the market and the society are deprived of the benefits it can derive out of new free transfer of new technology. Society benefits in the long term when pg. 4

intellectual property protection encourages creation and invention, especially when the period of protection expires and the creations and inventions enter the public domain. Governments are allowed to reduce any short term costs through various exceptions, for example to tackle public health problems. And, when there are trade disputes over intellectual property rights, the WTO’s dispute settlement system is now available.

Basic principles:
• national treatment: treating one’s own nationals and foreigners equally), • most-favoured-nation treatment (equal treatment for nationals of all trading partners in the WTO • Balanced protection : intellectual property protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced.

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The main features of the Agreement are:
1. Nondiscrimination. It signifies that Member states must not favor the
intellectual property rights of their own citizens against the intellectual property rights of citizens of other GATT members, and they must not favor the rights of citizens of one member country over those of another. 2. Standards: In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection. 3. Enforcement: This set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. 4.Dispute settlement: The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures. 5. Duration of intellectual property rights- The duration of a patent under TRIPS has been standardized to a minimum of twenty years from the date of filing; copyrights are standardized at fifty years on sound recordings and at least fifty years on motion pictures and other works. Trademark protection is established for seven years and is indefinitely renewable as long as the trademark is in use. 6. Scope of intellectual property rights- TRIPS expands the existing scope of protection for trade secrets, computer programs, and databases. In the case of pharmaceuticals, although TRIPS extends the scope of what is patentable, it excludes natural or artificially produced biological material, animals, and plant varieties. TRIPS also confers on patentees the following exclusive rights: the ability to prevent third parties from the acts of producing, distributing, selling, or importing a patented product; the exclusion of third parties from using, selling, and importing a patented process; full protection of the product obtained through the patented process; and the flexibility to sell or license patent rights. pg. 6

7. Licensing: This is an area where international disputes are common. TRIPS has failed to resolve the sources of conflict because it allows nations to grant compulsory licenses for "adequate remuneration" after considering each case "on its individual merits" and after attempting to negotiate "reasonable commercial terms" with holders of intellectual property rights. TRIPS specifies that compulsory licenses must be nonexclusive and of limited duration. 8. Transition periods for less-developed countries. TRIPS allows developing countries grace period till 2016 to extend intellectual property rights to categories of inventions that were previously unprotected. The TRIPS provisions do not require "pipeline" or retroactive protection for inventions that are covered under the new proposed laws but were not protected under the old laws. 9. Enforcement mechanisms. The TRIPS agreement attempts to cure the problems in international market transactions of high-technology goods and services. It also provides benefits to those developing countries that have had limited access to high technologies because of their lack of technological capabilities. By providing clear and enforceable rules plus dispute settlement mechanisms through the WTO framework, TRIPS promotes the institutional capacity of developing nations to absorb complex technologies. In short, TRIPS is a source of international legal convergence.

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There are several reasons for the emergence of TRIPS. They are1. To be successful, a nation has to have an adequate protective mechanism to protect such types of rights of a creator or a generator of information. 2. The application of new technologies has given rise to a number of new situations and problems, particularly in the field of information technologies and biotechnology which marks the basic necessity for such an agreement as TRIPS. 3. US leadership in manufacturing and technology was challenged by the catching up of Japan and a few other countries, including Newly Industrialised Countries (NICs). These challenges were perceived in the United States as resulting from too open a technological and scientific system which allowed other countries to imitate US innovations and which gave rise to the proliferation of counterfeiting and piracy. Also, developed countries were also pressing for a more open world trading system which would open up markets for their R&D intensive exports in particular. 4. For developed countries, the combination of strengthened IPRs and open global markets would provide scope for them to choose to trade rather than to diffuse their technology. 5. There was also a strong interest on the part of industrialized countries in a more robust and forceful IPRs system in order to help their enterprises recoup the costs of their R&D efforts.

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TRIPS agreement includes the following intellectual property rights (IPRs):
1. Copyright and Related rights

2. 3. 4. 5.

Trademarks Geographical indications Industrial designs Patents 6. Layout-designs of integrated circuits 7. Protection of undisclosed information

5.1 Copyright

and Related rights

1. Article 9.2 confirms that copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. 2. Article 10.1 provides that computer programs, whether in source or object code, shall be protected as literary work 3. It also expands international copyright rules to cover rental rights. Authors of computer programs and producers of sound recordings and films must have the right to prohibit the commercial rental of their works to the publicThe agreement says performers must also have the right to prevent unauthorized recording, reproduction and broadcast of live performances (bootlegging) for no less than 50 years. Producers of sound recordings must have the right to prevent the unauthorized reproduction of recordings for a period of 50 years



1. The basic rule contained in Article 15 is that any sign, or any combination of signs, capable of distinguishing the goods and services of one undertaking from those of other undertakings, must be eligible for registration as a trademark, provided that it is visually perceptible. 2. The Agreement requires service marks to be protected in the same way as marks distinguishing goods. . Marks that have become well-known in a particular country enjoy additional protection. pg. 9

3. The owner of a registered trademark must be granted the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for goods or services. 4.Initial registration, and each renewal of registration, of a trademark shall be for a term of not less than seven years. The registration of a trademark shall be renewable indefinitely (Article 18).

Geographical indications

A place name is sometimes used to identify a product. This “geographical indication” does not only say where the product was made. More importantly, it identifies the product’s special characteristics, which are the result of the product’s origins.Well-known examples include “Champagne”, “Scotch”, “Tequila”, and “Roquefort” cheese. Wine and spirits makers are particularly concerned about the use of placenames to identify products, and the TRIPS Agreement contains special provisions for these products. But the issue is also important for other types of goods.


Industrial designs

Article 25.1 of the TRIPS Agreement obliges Members to provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Under the TRIPS Agreement, industrial designs must be protected for at least 10 years. Owners of protected designs must be able to prevent the manufacture, sale or importation of articles bearing or embodying a design which is a copy of the protected design.



Patents must be available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability. They are issued for a period of 20 years. pg. 10

The exclusive rights includes right to make, use, sell. Imported products enjoy same rights in any other country. Process patents will also apply to products directly received from the process. An applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art.

1. Governments can refuse to issue a patent for an invention if its commercial exploitation is prohibited for reasons of public order or morality. They can also exclude diagnostic, therapeutic and surgical methods, plants and animals (other than microorganisms), and biological processes for the production of plants or animals (other than microbiological processes).Plant varieties, however, must be protectable by patents or by a special system. 2. A patent owner could abuse his rights, for example by failing to supply the product on the market. To deal with that possibility, the agreement says governments can issue “compulsory licences”, allowing a competitor to produce the product or use the process under licence. But this can only be done under certain conditions aimed at safeguarding the legitimate interests of the patent-holder.

An issue that has arisen recently is how to ensure patent protection for pharmaceutical products does not prevent people in poor countries from having access to medicines — while at the same time maintaining the patent system’s role in providing incentives for research and development into new medicines. Flexibilities such as compulsory licensing are written into the TRIPS Agreement, but some governments were unsure of how these would be interpreted, and how far their right to use them would be respected.

A large part of this was settled when WTO ministers issued a special declaration at the Doha Ministerial Conference in November 2001. They agreed that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. They underscored countries’ pg. 11

ability to use the flexibilities that are built into the TRIPS Agreement. And they agreed to extend exemptions on pharmaceutical patent protection for least-developed countries until 2016. On one remaining question, they assigned further work to the TRIPS Council — to sort out how to provide extra flexibility, so that countries unable to produce pharmaceuticals domestically can import patented drugs made under compulsory licensing. A waiver providing this flexibility was agreed on 30 August 2003.

5.6 Layout-designs of integrated circuits
The basis for protecting integrated circuit designs (“topographies”) in the TRIPS agreement is the Washington Treaty on Intellectual Property in Respect of Integrated Circuits, which comes under the World Intellectual Property Organization. This was adopted in 1989 but has not yet entered into force. The TRIPS agreement adds a number of provisions: for example, protection must be available for at least 10 years.

5.7Protection of undisclosed information
Trade secrets and other types of “undisclosed information” which have commercial value must be protected against breach of confidence and other acts contrary to honest commercial practices. But reasonable steps must have been taken to keep the information secret. Test data submitted to governments in order to obtain marketing approval for new pharmaceutical or agricultural chemicals must also be protected against unfair commercial use.

Control of anti-competitive practices in contractual licences
Trade secrets and other types of “undisclosed information” which have commercial value must be protected against breach of confidence and other acts contrary to honest commercial practices. But reasonable steps must have been taken to keep the information secret. Test data submitted to governments in order to obtain marketing approval for new pharmaceutical or agricultural chemicals must also be protected against unfair commercial use.

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WTO agreement on TRIPS has wide-ranging implications on the Indian software sector. They are1 Education- NASSCOM-McKinsey report indicates apart from other infrastructural requirements, manpower requirement to be about 250 000 skilled professionals per year. The existing availability of professionals, including engineers from IITs and RECs, is about 70 000 to 80 000. This figure includes the output from private computer training institutes. When stricter copyright laws are enforced, these private institutes will be compelled to use licensed software. This would automatically result in the increase in the fees charged, thereby causing an adverse impact on the number of persons opting for these courses, which would in turn affect the availability of trained professionals. 2 Impact on the Development of software-There are several free software that are available in the market. Currently, these are being used by users all over the world, including India, without any license/access fees. Hence, by having such ‘Open’ software, people will have the opportunity to explore and improve the functioning of software. This not only improves the quality of software continually, but also spares developing countries like India of a financial burden.

3 Impact on exports-Barely one-tenth of the computer software produced
in India is actually registered and credited to this country on account of inadequate protection of intellectual property rights (IPRs). Whereas India's share of world trade in information technology (IT) and computer software is officially placed at less than one per cent - 0.72 per cent - it is estimated that as much as eight per cent of international production of software is actually being created in India. In other words, barely one-tenth of the software that comes out of India gets formally registered and shows up in government statistics.

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4 Impact on electronic commerce It is important that each country have in place a framework of intellectual property laws and regulations, and a supporting infrastructure of intellectual property services, to reassure intellectual property owners and commercial enterprises that their assets will be protected in an online environment. Existence of such a legal infrastructure offers three distinct advantages: • Encourage Private Sector Investment • Accelerate Economic Development • Provide A Secure Foundation


In pharmaceutical industry, Stronger universal patents because of the exclusive rights effectively rules out competition and ensures the monopoly power of the patent holder throughout the period of protection. The impact of product patents on the pharmaceutical industry in India has centered on the issues of price of the patented product and their accessibility. Due to patented drugs, local manufacturers cannot produce the drugs locally, hence a very high price may be charged from the consumers for a life saving drug, then there is also a possibility of accessibility as an expensive drug will be stored by a few chemists leading to shortage in certain areas. INDIA HAS INDIAN PATENT LAW 1970. It did not provided product patents for pharmaceuticals, instead it provided production processes that may be patented for seven years. In addition, the law allowed for compulsory licences granted by the state, in the case of a patent holder's not granting voluntary licences on fair conditions. India profited from a large section of well-qualified experts who made good use of the new opportunities. Thus Indian pharmaceutical players have benefitted from this system. Companies like Cipla produces life saving drugs like AIDS vaccine at prices much lesser than its US counterparts thus benefitting from the system and doing good to the society. The original product of the British firm Glaxo Wellcome is sold for more than double the price in India, Pakistan and pg. 14

Indonesia - and costs five to six times more in the USA and Great Britain. But with new patent laws such benefits will not be available to Indian firms and hence will lead to high increase in prices of such drugs.

A large part of this was settled when WTO ministers issued a special declaration at the Doha Ministerial Conference in November 2001. They agreed that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. They underscored countries’ ability to use the flexibilities that are built into the TRIPS Agreement. And they agreed to extend exemptions on pharmaceutical patent protection for least-developed countries until 2016.

Provisions of TRIPs seriously threaten self reliance in Agriculture and the livelihoods of farmers, by seeking to establish a monopoly for the Life Science Corporations on seed production and sale. Most of the world's biological diversity occurs in the Asian countries, whereas most of the development utilizing it occurs in the America and Europe. Developing countries like India are suppliers of almost all original germplasm used in research but do not have the resources to develop along the line of IPRs. • TRIPs provides for wide property rights to be obtained in gene technology, profiting the IPR holder and restricting the use of the product derived from the genetic material implies that if the requirement of human inventiveness is met, an individual or corporate entity can gain monopoly rights on: any type of living being (except humans) and its products, cells, genes and DNA (including natural);

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the specific uses of a "biological agent (novel or pre-existing)"; and the processes of gene technology. • IPRs have helped to create a climate in biotechnology where only the huge agricultural conglomerates can afford the costs of research and patenting. By requiring developing countries to institute a strict IPR regime, TRIPs creates an environment that will allow TNCs(Trans national corporations) to dominate the agricultural industry. • One of the direct costs of the 'biopatents' is that they can decrease the independence of farmers. Prompted to keep up with the production of high yield varieties, farmers that buy genetically modified organisms (GMOs) for production are then locked into a relationship of dependence with the patent owner-supplier. They are not legally entitled to save and use seed, or keep the offspring from their livestock without paying royalties to the patent owner. This pattern of production moves farmers further away from sustainable farming practices and increases their vulnerability to the vagaries of the market. • Indian farmers have used neem for generations as a pesticide and fungicide. There are now more than 35 patents from the neem tree in the United States and Europe. None of the profits from the patents are returning to the traditional owners and the increased market cost has resulted in decreased availability to local communities. Another example was a patent granted in 1995 to US scientists for the use of turmeric for healing wounds. They claimed its use to be novel whereas this had been a traditional use, amongst others, in India for centuries.


Biodiversity encompasses all species of plants, animals and microorganisms and the variation between them, and the eco-systems of which they form a part. It occurs at three levels, namely: (i) species level - refers to number and kinds of living organisms; (ii) genetic level - refers to genetic variation within a population of species and (iii) eco-system level - refers to the variety of habitats, biological communities and ecological processes that occur in such habitats. pg. 16

Traditional knowledge (TK) associated with biological resources is an intangible component of the resource itself. TK has the potential of being translated into commercial benefits by providing leads for development of useful products and processes. The valuable leads provided by TK save time, money and investment of modern biotech industry into any research and product development. Hence, a share of benefits must accrue to creators and holders of TK. Only new knowledge can be patented. Patents only apply to inventions, not to existing knowledge. But if knowledge is held only in oral form, then many IPR regimes, do not consider oral knowledge as proof of previous documentation and therefore such knowledge is in danger of being patented. India is pressing for changes in the WTO TRIPs regime in order to protect traditional knowledge and prevent bio-piracy. Issue was important for developing countries as piracy of biological material and misappropriation of traditional knowledge was taking place. Hence, India, along with some other mega-biodiverse developing countries, is demanding a legally binding regime which would enjoin all WTO members to amend their IPR laws. This was to include the following three principles: • Disclosure of country or origin of source of biological material or traditional knowledge • Prior Informed Consent (PIC), and Equitable • Benefit Sharing

REASONS: Value realisation of traditional knowledge is essential for the sustainable use of biodiversity and can play an important role in the development process. Yet traditional knowledge is often under-utilised, and more dangerously, also being lost or misappropriated. Given the WTO patent regime, any lack of international public law measures to protect against the usurpation of traditional knowledge may even result in a situation where the traditional knowledge holders are deprived of rights to use products which have been theirs for generations together. This is pg. 17

extremely important, as the market value of plant-based medicines sold in the OECD alone has been estimated at about $ 40-60 billion annually. The international regime of TK is governed primarily by the CBD and, therefore, it was recognized that amendments to TRIPS would be needed to develop a viable means for delivering on benefit sharing objective of the CBD. Effective documentation of biodiversity resources and micro organisms was considered essential. NEGOTIATIONS It was noted that some developed countries were agreeable to the disclosure of source and origin of country so long as it had no legal consequences on the patent system. It was felt that this would not suffice Discussion is now underway in the WTO on these issues. NORWEGIAN PROPOSAL At the last IGC meeting Norway also tabled a proposal on traditional knowledge (IPW, WIPO, 25 April 2006). Norwegian Proposal is the first proposal from a developed nation where mandatory disclosure and PIC were accepted. GI Extension Issues Separately, another implementation issue is the proposal to extend the higher protection of geographical indications that wines and spirits enjoy to other products as well. Support for Plant Genetic Treaty Separately, the UN Food and Agriculture Organization (FAO) urged member countries to support the International Treaty on Plant Genetic Resources for Food and Agriculture, whose goal it is to safeguard the genetic diversity of crops and fight hunger and malnutrition.

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Conclusion The increasing role of science based industries in agricultural and industrial production and the growing challenges of environment management means that it has become necessary to impart dynamism to the functioning of R&D laboratories. This in effect means giving teeth to Article 67 of the TRIPS agreement, which provides for technology transfer to developing countries. The main issue relevant for us is how governments of developed countries ensure that technology available with private firms is made available to developing countries that seek it. In many instances, even compulsory licensing can not adequately address this problem. So long as Article 67 remains only a statement of intent, without combining modalities for its operation, the implementation of Uruguay Round would remain incomplete. Enforcement India has one of the toughest copyright laws in the world. As is the case in many other issues, enforcement holds the key to the problem. There are several steps taken by various organisations (such as NASSCOM, etc) in order to effectively implement these laws. The legislation has also been modified to accommodate the hanging requirements posed by new technological areas. Representation in various foray Participation in the finalization of intellectual property must also be widened. Race car drivers would not be the best advisers on public transport, and scientists at the cutting edge of the technological revolution cannot alone decide its path. This calls for collaboration -- in national and global foray – between industry, governments, regulators and civil society organizations.

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Recent disputes
1. With India accepting to comply with the norms of TRIPS on pharmaceutical industry , there was a flood of patent applications filed by several big pharmaceutical companies, which also included a patent application by Novartis on Glivec in 1998. Imatinib was an original invention by Novartis and glivec was seen as an incremental innovation. The case included complicated matters like whether Indian patent laws were upto the standard of TRIPS. Novartis finally lost the case
2. Another famous case was filed by Roche to stop companies like Cipla

and Natco from manufacturing and selling a patented cancer vaccine drug. 3. India has won a decade long battle against the granting of a patent to a Neem - based crop fungicide by the European patent office (EPO). India’s case was presented before EPO by Prof. U.P.Singh. Neem derivatives have been traditionally used to make insect repellents, soaps, contraceptives & Ayurvedic medicines & under normal circumstances a patent application should always be rejected if there is prior existing knowledge about the product

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1. It provides a temporary monopoly where none else is allowed the free




flow of ideas or intellectual property It may lead to private censorship where person holding right may avoid the reproduction of idea The global harmonization of IP laws are criticized by alter globalization movements too who see it as an extension of US influence on third world countries. IP is basically of non rivalrous in nature because the person using it does not devoid its original producer any access to it Transaction losses are high while conferring such rights Last it increases dead weight loss to the economy as one who has info on latest technology to b used for production may curb its use and may lead to rentenig process thus adding losses.

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Bibliography ‘Intellectual Property as a tool for development in knowledgebased economy’ – Shahid Ali Khan, Journal of IPR, May 2000 ‘The protection and Management of intellectual Property’ – Dato’ Pahmin, Journal of IPR, January 2000 Websites:

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