Limitations and exceptions to the standard set by the TRIPS Agreement (exceptions to patent´s global heart)

• Introduction (follow the links for more). 

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), this proposal argues that the heart of the global legal institution known as a patent has been delineated by the rules established within the TRIPS Agreement. This has been sustained throughout this webpage, recognizing that there are elements that escape this worldwide heart (which could be harmonized provided it becomes just).

These elements (from which deviations from the global standard are produced within the different countries) should be address, and for that we have grouped in three categories the issues.

First, the concepts of novelty, inventive step, and industrial application are freely defined by each country within the macro definition of the TRIPS, of course, which generates discrepancies between legislations.

Second, countries may establish exceptions to the patentability.

Finally the exceptions to the rights conferred and the limitations on the exercise of those rights could be stablished by each country.

TRIPS PLUS ULTRA could reset the system with the introduction of proportionality, which will be the ultimate flexibility. This could put and end to the push of greater flexibilities in the small issues, some of which actually hurts developing countries (like the case of orphan diseases and the ill conceptions about national exhaustion; if you add TRIPS PLUS ULTRA and national exhaustion, actually, the system could be use by developing countries properly.

(Go back to the validity analysis for more on what the global regulation regarding patents looks like.)