Elizabeth Morgan | Jamaica’s Patents and Designs Bill: It’s never too late …

In an online search, I happened to find a Jamaica Information Service report informing that the Senate, on January 23, passed the Patents and Designs Bill. The passage of this important legislation seems to have attracted little attention. This bill, expected to become law later this year, will replace the 1857 Patents Act and its 1974-75 amendments and the 1937 Designs Act, further modernising Jamaica’s intellectual property regime.

It will generate increased revenue and promote innovation in Jamaica through research and development, which is a contributor to industry and economic growth and development. It is amazing how little interest is generally shown in those things which could contribute to Jamaica expanding exports and increasing its rate of economic growth!

The Patents and Designs Bill is part of implementing the World Trade Organization (WTO) Agreement on Trade-related Intellectual Property Rights (TRIPS), which entered into force on January 1, 1995. As a developing country, Jamaica had a transition period of five years in which to upgrade its intellectual property regime to meet international standards. This meant that its intellectual property rights (IPRs) legislation, including Patents and Designs, should have been improved and notified to the WTO TRIPS Council by 2000.

While Jamaica notified its 1993 Copyright Act and its 1999 Trademark Act, the Geographical Indications Act was not adopted until 2009, and the Patents and Designs Bill remained more than 20 years in the drafting and adoption process. The country thus continued to be non-compliant with the WTO TRIPS Agreement and remained on the Section 301 watch list of the US Trade Act.

The TRIPS Agreement was one of the more controversial of the WTO multilateral trade agreements (MTNs). The World Intellectual Property Organization (WIPO), a United Nations (UN) specialised agency established in 1967, administers a range of international intellectual property treaties dating back to the 19th century. WIPO informs that intellectual property (IP) refers to creations of the mind as inventions, literary and artistic works, designs, symbols, names and images used in commerce.

WIPO further informs that IP is protected by law, patents, copyright and trademarks, enabling people to earn recognition and financial benefit from their creations. Copyright treaties were also developed in the UN Educational, Scientific and Cultural Organization (UNESCO), for example, the 1952 Universal Copyright Convention. There was concern about negotiating an IP treaty under the umbrella of the General Agreement on Tariffs and Trade (GATT) in its Uruguay Round MTNs.

BENEFIT TO COUNTRIES

With increasing IP infringements, however, the USA and European communities were the leaders in the push for the TRIPS Agreement, which would ensure compliance and enforcement under the strengthened WTO dispute settlement mechanism. It was recognised, however, that a strengthened IP regime would also benefit countries such as Jamaica.

Compliance with the TRIPS Agreement means adherence to the WIPO treaties. Jamaica is now a party to the 1883 Paris Convention for the Protection of Industrial Property; the 1886 Berne Convention for the Protection of Literary and Artistic Works; and the 1961 Rome Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, among others.

Enactment of the Patents and Designs Bill will enable Jamaica to accede to other WIPO treaties such as the 1925 Hague Agreement Concerning the International Registration of Industrial Designs, and the 1970 Patents Cooperation Treaty.

Jamaica will also be able to charge a significantly higher fee for the registration of patents.

Given the work of the Scientific Research Council, the agriculture ministry, scientists such as Dr Henry Lowe, and with its creative and cultural industries, it has clearly been in Jamaica’s interest to have a modern IPR regime.

Dianne Daley McClure of the IP law firm, Foga Daley, describes the new legislation as “a seismic shift in Jamaica’s intellectual property landscape”. I hope that this legislation, when in effect, will lead to more investment in research and development.

Our producers in manufacturing and agriculture, and creative minds emerging from our universities and colleges, will hopefully embrace it and fully utilise its provisions. I welcome the adoption of the Patents and Designs Bill after its long gestation period. Indeed, it is never too late for a shower of rain.

Elizabeth Morgan is a specialist in international trade policy and international politics. Email feedback to columns@gleanerjm.com