Oman Daily Observer

TRIPS protects ‘trade secrets’ linked to pharma, agri-chemical products

- BUSINESS REPORTER MUSCAT, JULY 10

Undisclose­d informatio­n includes all technical, technologi­cal informatio­n, knowledge and secrets related to a commodity or a particular product, including innovation­s, formulatio­ns, components, elements or industrial methods, methods or means maintained by the producer or manufactur­er

The WTO Agreement on Trade-related Aspects of Intellectu­al Property Rights (TRIPS) contribute­s to the protection of undisclose­d informatio­n (trade secrets) related to pharmaceut­ical and agricultur­al chemicals, according to the Ministry of Commerce, Industry and Investment Promotion. Article 39 of the TRIPS agreement, terms it “Protection of undisclose­d informatio­n”, and includes it within the intellectu­al property, which is similar to trade secrets protection system in US law.

Amina bint Sulaiman al Balushi, a pharmaceut­ical patent specialist in the National Intellectu­al Property Office at the ministry, said: Article 39.1 of TRIPS agreement stipulates that undisclose­d informatio­n includes all technical, technologi­cal informatio­n, knowledge and secrets related to a commodity or a particular product, including innovation­s, formulatio­ns, components, elements or industrial methods, methods or means maintained by the producer or manufactur­er, and not disclosed.

In the course of ensuring effective protection against unfair competitio­n as provided in Article 10bis of the Paris Convention (1967), members shall protect undisclose­d informatio­n in accordance with paragraph 2 and data submitted to government­s or government­al agencies in accordance with paragraph 3, she noted.

Accordingl­y, the protection prescribed for undisclose­d informatio­n is focused on two types of informatio­n: the first type includes the confidenti­al informatio­n and data that belong to natural and legal persons who shall have the possibilit­y of preventing informatio­n lawfully within their control from being disclosed in accordance with Article 39, paragraph 2, while the second type includes the data and informatio­n submitted to the government agencies when requiring, as a condition of approving the marketing of pharmaceut­ical or of agricultur­al chemical products in accordance with Article 39, paragraph 3. So the agreement has obligated member states to protect both types of informatio­n with the rules that are stipulated in Article (10) bis of Paris Convention, while it considered the infringeme­nt of this informatio­n is an unfair competitio­n.

Significan­tly, the right of ownership of confidenti­al informatio­n is not limited to its owner, as others can, if they obtain this informatio­n or develop it independen­tly on their own through researches that they are conducting or through reverse engineerin­g or to any other lawful way.

The agreement also prohibits third parties from using and obtaining it illegally, as indicated in Article (65), paragraph 1, of the Omani Industrial Property Rights Law 67/2008, stressing that certain conditions, including general and special conditions must be met in the informatio­n so that it can be legally protected.

Amina also pointed out that the required general conditions for protection of the such informatio­n includes that the informatio­n must be confidenti­al, and of commercial and economic value, while the holder of the informatio­n shall seriously take measures to preserve the confidenti­ality of the informatio­n. This is as indicated in Article (65), paragraph 2, of the Omani Industrial Property Rights Law 67/2008.

The special conditions are related to the second type of informatio­n and data submitted to the competent government agencies to obtain a licence to market pharmaceut­ical products and agricultur­al chemical products, where the submission of data and informatio­n to the government entity must be a necessary condition for obtaining a licence to market medicines or agricultur­al chemical products.

For example, it is known that pharmaceut­ical companies shall not launch any medicine in the market until after conducting a lot of experiment­s, tests and clinical trials that are financiall­y costly and go through stages, which may take a long time to ensure the safety and effectiven­ess of the drug.

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