Flexibility (in regards to the length of the patent: the ultimately flexibility)
When analyzing the limitations of the economic model and when describing the economic model, a flexible system is envisioned. The TRIPS PLUS ULTRA will create the ultimately flexibility, by which the world could decide to get ride of the rest of them. Form it further benefits for developing (justice, technology transfer, orphan diseases) and developed countries (effectiveness, which will reduce the free riders problem -in it self unfair) could follow, and for the world as a whole (efficiency, justice, cooperation –proper exhaustion rights and properly address climate change).
“Under this hypothetical system, the term of protection granted by a patent will not be the same in all countries. An additional consideration must then be added. It won’t be a permanent one either. Given that the determination of the term of protection a patent grants would be in relation to a variable factor as it is with the economic capacity of countries, this may vary over time. The frequency of revisions is a matter to be determined under a deep technical and economic analysis, yet it must be pointed out that the revisions should tend to be as frequent as possible. The solutions to this kind of issues surely can be determined.”
Taken from “A global solution for the protection of inventions”, pp 91-92.
- Advantages of the flexibility.
“The flexibility referred to […] far from being a negative aspect would mean a great contribution to the system. The nations of the world for various reasons can undergo economic crises. Almost without exceptions the different countries have suffered crises. Being so, any country could benefit in the course of history with this hypothetical system (coherent with an axiological perspective), given that in a crisis scenario their inhabitants would see decreased the period of exclusivity granted to patented inventions in their territory. What a better way to sympathize with fellow countries when they are in crises. This kind of solidarity undoubtedly could have a positive impact on the cohesion of humanity. If a country benefits from a short-term protection, it will be because it is passing through a bad economic situation, which obviously that country will try to solve. If this is achieved and the country improves its economic condition, it will be in a position to contribute more to the technological progress of humanity. Consequently the exclusivity period that this country grants to patent holders in its territory will be extended.”
Taken from “A global solution for the protection of inventions”, pp 91-92.
2. Issues about flexibility that will have to be considered.
“This flexibility can be a positive element, as it was briefly reviewed in the previous paragraphs, but it may bring some practical complications that must be overcome with specific regulations. There may be situations in which (because of the better or worse economic situation of a country) a patent that had expired under a previous exclusivity period would be in a position to recover its availability (or vice versa), which could in turn affect third parties. In any case, it can be said that once the term of protection that a country is required to provide is known (which may vary according to the frequency in which the reviews are determined by the rule), the status of a particular patent will be known (if the patent could be enforced or if it has become of public use in that particular country). This way, if the fact justifying an assignment disappears, the contractual obligations of this assignment (which are accessory to this fact) will disappear too. The proportional system implementation will certainly bring difficulties, but the solutions surely can be found.”
Taken from “A global solution for the protection of inventions”, pp 92.
3. Flexibility and avoidance of distortion in the market.
“In regard of the above, a digression is in order. The existence of minimum compliance regulations in the TRIPS Agreement has harmonized the rules. This has ensured in a certain degree less market distortions. Bercovitz accurately states that the “global market requires minimum levels of protection in all countries, so as not to create competitive differences that distort the functioning of the same” (Bercovitz 1997, 19). However, avoiding market distortions does not require identical terms of protection in regard to the duration of the exclusive right. Actually no patent has the same duration between different countries because of different filing dates. Therefore, the exclusivity granted by a patent could be of a different duration from one country to another in reference to their economic capacity. For the system to work, it is required that the same rules of the game apply the same way for all the market players, but that is not to say that patents must have the same exact duration.”
“In the hypothetical implementation of the proposed system, all trade agents in the world market regardless of their nationalities will be guaranteed the same period of protection for their inventions. The period of protection given to trade agents will vary from country to country—according to the principle of proportionality—but always in the same way for all of them. Thus, the objective of avoiding market distortions will remain untouched despite the lack of an equalized term of duration of the right granted by a patent among different countries. When the rights conferred by a patent are infringed upon or when the rules vary from legislation to legislation, spots of market distortion are presented. The different right duration from one country to another under their different economic capacity will not. If the proposed amendment is accepted, a higher degree of harmonization will be desirable.”
Taken from “A global solution for the protection of inventions”, pp 105-107.