The Impact of the TRIPS Agreement on the Law of the Kingdom of Saudi Arabia
Dr. Samia Awad Hassan
Trade Related Aspect of Intellectual Property (TRIPs) is one of the most important agreements in the intellectual property protection regime. The Purpose of this paper is to explore the implementation of the Trade Related Aspects of Intellectual Property Rights “TRIPs” requirements in Saudi Arabia.
The Evolution of Intellectual Property Laws in Saudi Arabic
Saudi Arabia established the Saudi Patent Office (SPO) in 1977. The Patent Office’s main activity and objective is to apply the patent law and it is implementing regulations: Law of Patents, Layout Designs of Integrated Circuits, Plant Varieties and Industrial Designs.
The first Law of Patents was issued by the Royal Decree No. (M / 38) dated 10/6/1409 H (18/1/1989 AD). The Law aimed to provide protection for inventions in Saudi Arabia, and it was modified in 2004 by virtue of a regulation promulgated by the Royal Decree No. (M/27) dated 17/7/2004 and was published in the Official Gazette (Om Alqura) in 7/8/2004, and became effective as of 5/9/2004.
As ma member of the WTO, the KSA has committed to implement the TRIPS without any transition period. The following new intellectual property laws and regulations have been enacted in the course of Saudi Arabia’s WTO accession process: Copyright Law (30 August 2003); Copyright Law Implementing Regulations (29 May 2004); Law of Patents, Layout Designs of Integrated Circuit, Plant Varieties and Industrial designs (17 July 2004); New Patent Law Implementing regulations’( 26 December 2004);Trademark Law (7 August 2002);Trademark Law Implementing Regulations (2005); Border Measures Regulations (3 July2004); Rules of Protection of Trade Secrets (including protection for Pharmaceutical and agricultural chemical test data) (2005)
Harmonizing National laws with International Agreements
The TRIPS agreement contained some of the principles of the GATT, namely: the national treatment that the country party to the agreement should accord to the nationals of countries parties to the agreement; and the most favored nation’s concept. The national treatment gives the party to the Marrakesh convention the right to retaliate in another domain of the agreement if the party’s intellectual property rights are infringed in a member country without that country taking any measures against the infringer.
According to Cullen, (2010) many of the traditional arguments against TRIPS have not been voiced adamantly under Shari’a. The issue of patenting living organisms does not seem to conflict with Shari’a and there has been little if any scholarly work on this topic. However, the moral conundrum created by restricting access to patented medicines and various agricultural products creates more of a problem. Although the argument has not been prominently voiced by legal scholars, restricting such access may violate the principle of Maslaha which requires Muslims to care for and share with those less fortunate or facing hardship. By preventing the sick from using vital medicines or depriving the starving of an efficient and plentiful food source, enforcement of such patent rights stands directly opposed to that perspective on Maslaha and may be considered a violation of sharia. However, the absence of this argument in contemporary scholarship may indicate that it carries little weight in practice. Islam demands that treaties must be respected under sharia, thus binding Islamic states to their treaties with other nations. This suggests that an Islamic member state of the WTO is under a sacred obligation to uphold the requirements of TRIPS.
The obligation under sharia to uphold TRIPS has led many Islamic states to enact intellectual property laws meeting the TRIPS minimum standards. Under these laws, intellectual property is placed in a status equivalent to that of tangible personal property, suggesting that these states agree with the majority belief that intellectual property rights are compatible with Sharia. Sharia, therefore, obligates Islamic governments to introduce strong punishment for transgressions against intellectual property. Thus, by enacting laws in compliance with TRIPS, an Islamic state effectively verifies that it believes intellectual property rights are compatible with Islamic notions and concepts.
According to the Saudi Report (2005), Saudi Arabia has completely overhauled and modernized its legislative frame work and administrative infrastructure for the protection of intellectual property right to bring them in compliance with the Trips Agreement. The patent Office in Saudi Arabia has taken measures to address the back log of pending applications, including significantly increasing the number of patent examiners, utilizing search and examination reports, as well as granted patents issued by other offices, and expect to clear its backlog by the end of 2006. Saudi Arabia has committed to protect Pharmaceutical and agricultural chemical test data submitted to obtain marketing approval against unfair commercial use for a period of 5 years from the date of approval, and will not register a generic form of a pharmaceutical when a patent application is on file, unless the invention in the application is not patentable.
Saudi Arabia excluded from the regulations concerning Article (23) of the TRIPs Agreement dealing with the additional protection of geographical indications concerning alcohol and alcoholic beverages, which was also deleted from the list of classification of goods and services attached to the trademark system. As a response to Saudi’s obligation under TRIPS, the Saudi government enacted new intellectual property laws meeting the TRIPS minimum standards. Further, Saudi Arabia created a full examination system for patents and an automated patent filing system to improve the efficiency of the application procedure. Moreover, introduced specific provisions on enforcement with an emphasis on conservatory measures such as the seizure of goods to determine infringement and preserve evidence.
Trips is the most important and comprehensive international agreement on intellectual property rights. Saudi Arabia, which adopts sharia law, is automatically bound by the agreement because of its membership. This paper reveals that a sharia-based system is flexible and adoptable and this flexibility is to be used in order to face economic reality.