Diagnostic, therapeutic, and surgical methods
- Introduction and general background of the exceptions and limitations to the principle by which patents should be granted to all inventions in all fields of technology.
When analyzing the validity element of the three tier analysis that inspired the TRIPS PLUS ULTRA proposal we´ve said that the TRIPS Agreement sets a global standard, and that this global standard admits exceptions and limitations. We’ve also say that the harmonized aspects (the uniform core or heart of the global patent) are by far more relevant than those that are not harmonized, taking as a parameter to this conclusion the patent legal institution as a whole (a legal institution is the set of rules that gives life to an abstract concept). Nonetheless, it is worth analyzing this exceptions and limitations with detail.
One of the posible limitations that countries may establish within their borders regards the patentable subject matter (exceptions to the patentability of certain products, e.i., determining certain inventions as non-patentable subject matter). According to the general principle of the TRIPS Agreement, patents should be granted to all inventions in all fields of technology. This principle admits exceptions (or leves each country liberty to regulate the issue).
2. The exception: Diagnostic, therapeutic, and surgical methods.
Taken from a “A global solution for the protection of inventions“, pp 155-156. Internal citations omitted.
“The members may also exclude from patentability the diagnostic, therapeutic, and surgical methods for the treatment of humans or animals.” Provided that justice is achieved in the current system as recommended in this publication, the protection of these kind of protection could be analyzed. This could happen if a consensus on this eventual new construction is reached.
(Go back to the patentable subject mater analysis for other ways the principle that state that patents should be granted to all inventions in all fields of technology could be limited.)