Ordre public, health, environment, among others
- 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: to protect certain values.
Taken from a “A global solution for the protection of inventions“, pp 145-146.
“[C]ountries can exclude from patentability inventions whose exploitation must be prevented to protect certain values, such as ordre public or morality, health or life [environment], etc. These exclusions can be instituted under certain conditions determined by the agreement, provided that there is a righteous reason to do so. In the words of the agreement, ‘Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.'”
(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.)