International protection of industrial property rights in DRC: A comparative analysis

Details

Supervisors

Philippe, Denis

Faculty

Faculté de droit et de criminologie

Degree label

Master de spécialisation en droit international

Abstract

This work deals with principles of international law that govern the protection of industrial property rights in DRC. It makes a particular attention on rules regulating some patentable inventions that have used, in a way or another, traditional knowledge. More particularly, the review of international legal instruments related to industrial property rights and that have been ratified by DRC constitutes the cornerstone of this work. The aforesaid legal instruments, which are mainly the Paris Convention and TRIPS Agreement, work in a complementarity system and set principles and strategies useful in the protection of industrial property rights. Going deeply into them, it is better revealing that their implementation in respective national systems of contracting parties constitutes an obligation. Therefore, in the compliance with such obligation, DRC had adopted a law that addresses issues of industrial property rights. Despite the adoption of the law above-mentioned and the transitory period granted by the WIPO, DRC national legal system is still characterized by a serious lack of conformity with TRIPS Agreement requirements. Due to that, a majority of scholars have supported that DRC had not made major efforts to comply with its international obligation under TRIPS Agreement and claimed the application of reciprocity (even if prohibited by the Paris convention) to Congolese nationals living abroad. Besides, it is currently noticed in DRC that some inventions, internationally protected under industrial property law, have used traditional knowledge regardless of rules and principles of international law related to. This has been the object of a very interesting debate in doctrine that inspired the recent report of pharmacists in DRC. According to that report, the use of traditional knowledge in several pharmaceutical inventions has increased. Unfortunately, that increasing use of traditional knowledge in patentable inventions violates, by and large, the Convention on the biodiversity and the Nagoya protocol setting principles that should govern such activity. The convention on the biodiversity principles, have to be integrated by contracting parties in their respective national system. Surprisingly, today on, there is no a law that implements principles set in the convention and protocol above-mentioned in DRC. Consequently, Congolese indigenous or local communities whose traditional knowledge have been used in patentable inventions, especially drugs, have no effective legal framework to claim the violation of rights recognized by international law through the convention on the biodiversity and the Nagoya protocol.