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Article 27.2) Trips Agreement

Posted by Josh On September - 11 - 2021

Subject to the provisions of Article 37(1), Members consider that the following acts are unlawful if carried out without the authorization of the right holder: (9) import, sale or other distribution for commercial purposes of a protected layout design, an integrated circuit in which a protected layout design is integrated or an article containing such an integrated circuit, only to the extent that: when it continues to contain an illegally reproduced layout design. 1. Notwithstanding Article 36, no Member may consider unlawful the implementation of any of the acts referred to in that Article, in respect of an integrated circuit containing an unlawfully reproduced layout scheme or an article containing such an integrated circuit, if the person undertaking or ordering such acts did not know so and had no reasonable reason to know so; upon acquisition of the integrated circuit or article containing such an integrated circuit that it contained an illegally reproduced layout design. Members shall provide that upon being duly informed that the design of the layout has been unlawfully reproduced, that person may perform any act concerning the stock available or ordered before that date, but that he is required to pay the holder an amount corresponding to a reasonable licence fee which should be paid under a freely negotiated licence for such a layout. This argument has been used by some opponents[5] of software patents to argue that software patents would not be allowed by the TRIPS Agreement. [6] TRIPS manuals see no conflict, for example Correa & Yusuf[7] finds that software patents complement copyright because copyright does not protect the underlying ideas. There has been no dispute resolution procedure for software patents. Its relevance to patentability in the areas, for example, of computer-implemented business methods, computer science and software information technology remains uncertain, given that the TRIPS Agreement, like all legal texts, is interpreted[4]. (i) the validity of a decision authorising such use is subject to independent judicial or other review by a higher authority separate from that member; Although `pure software` is not mentioned as an exception to Article 27(2) and (3) of trip TRIPS, it is not considered an invention under European law. [1] The States Party to the TRIPS Agreement, i.e.

the WTO Member States, have decided to grant patents in all fields of technology without discrimination (Article 27(1) TRIPS[2]). However, according to Paul Hartnack, a former comptroller general at the UK Patent Office, it is doubtful whether pure software is a technology or, in many cases, whether it is industrial.

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