TRIPS Articles 35 to 38

In one line

Four short articles: one incorporates most of the Washington Treaty, one fixes the scope, one protects the innocent buyer and permits compulsory licences, and one sets the term at ten years.

Article 35: the incorporation

The text. "Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as 'layout-designs') in accordance with Articles 2 through 7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions."

Read what is in and what is out.

In: Articles 2 to 7 of the Washington Treaty, that is definitions, subject matter, the legal form, national treatment, the scope of protection and the exploitation and registration provisions; Article 12, the safeguard for the Paris and Berne Conventions; and Article 16(3), the right not to apply the Treaty to layout-designs existing at entry into force.

Out: Article 6(3), non-voluntary licences. Chapter 670 explains why that exclusion was the point.

And "in addition": Articles 36, 37 and 38 add three obligations of their own.

So a Member of the World Trade Organisation is bound to the Treaty's substance without being a party to the Treaty. That is how India is bound, and it is the answer to the commonest question on this topic.

Article 36: the scope

The text. "Subject to the provisions of paragraph 1 of Article 37, Members shall consider unlawful the following acts if performed without the authorization of the right holder: importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout-design."

Three things to notice.

It names three levels of product. The layout-design; the integrated circuit containing it; and the article containing that circuit. So the right follows the chip into the washing machine.

The last clause limits the third level. An article is caught "only in so far as it continues to contain an unlawfully reproduced layout-design". Take the chip out and the article is clean.

Article 36 does not mention reproduction. Reproduction is unlawful under Article 6(1)(a) of the Washington Treaty, which Article 35 has already incorporated. Article 36 adds the commercial dealing limb.

A footnote to Article 36 provides that "right holder" in the Section has the same meaning as "holder of the right" in the IPIC Treaty.

Section 18(1)(b) of the Indian Act is Article 36, and it uses the same three levels.