What a patent as a minimum must to be in each country, worldwide
- Introduction.
When analyzing the validity element of the three tier analysis that inspired the TRIPS PLUS ULTRA proposal (the other two elements are its justice and its effectiveness), we´ve said that the TRIPS Agreement sets a global standard. Up next you will find quotes from “A global solution for the protection of inventions” (pp. 51, 54) that explains how that global standard (which admits exceptions) gets set within each country . It will also lead you to more information about the standard, by clicking on the links.
(Go back to the validity analysis for more on what the global regulation regarding patents looks like.)
2. The universal standard.
“[…] [T]he basic aspects of intellectual property are covered by the TRIPS Agreement, but its implementation will be done within each country in strict correspondence of its legal system. In general, the TRIPS Agreement establishes the minimum regulation that must be included on a mandatory basis in the laws of the member countries of the WTO, leaving certain other aspects to the discretion of each country. All expressions or references used throughout this [webpage] to a global, worldwide, or universal regulation in regard to intellectual property must be understood taking into account [the previously mentioned nature].
“As it was already mentioned, the rules of the TRIPS Agreement harmonized the regulations of intellectual property up to the standard established therein. As for patents, the minimums parameters of the agreement are either impossible (conceptually there is no such possibility) or hard (because of practical elements) to exceed. As the description of these minimum aspects [is presented through the links provided], reflections are made on why they are not exceeded.”
“Currently, according to the universal rules governing the matter, it could be said (with a general notion) that a patent is the mandatory protection that for (1) twenty years from the filling date—in theory it could be more if a country decides to grant more time—each country must grant to any (2) new invention that involves an inventive step, and that has industrial applicability in (3) all fields of technology (whether it is of a -4- product or a processes), (5) regardless the nationality of the innovator. Finally, a patent gives its owner the exclusive right of exploitation (6) (which includes importation), (7) ius prohibendi (the faculty of exclusion) on the subject patented matter and full power to dispose of these rights, on the condition that (8) the invention is disclosed.” Additionally, the internal regulations of each country must comply with the principles of National-Treatment and MFN. This standards admit exceptions which developing countries should to capture the fullest, which is fought by some (with some reason too -it generates distortions and produces the free ridder problem, which is in tis self unfair). TRIPS PLUS ULTRA could reset the system with the introduction of proportionality, which will be the ultimate flexibility.
Citations omitted.