The relative significance of the limitations and exceptions vs the heart of the worldwide patent
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 in terms of importance 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.). Up next you will find quotes “A global solution for the protection of inventions” (pp. 70-71) that explains this.
(Go back to the validity analysis for more on what the global regulation regarding patents looks like.)
The heart of the worldwide patent.
“The heart of the global legal institution known as patent has been delineated by the rules that come from the TRIPS Agreement. This has been claimed throughout this document, recognizing the existence of elements that escape this worldwide heart. It should be recognized that there are several possible exceptions, and some are critical. Some countries (others don’t) apply the exceptions that the agreement allows, and all countries legislate freely in matters that they are allowed to (in each case in strict accordance with the principles of National-Treatment and Most-Favoured-Nation). The implementation of the principles and exceptions contained in the agreement will result in hundreds of independent and disparate laws—each with different implications—that when applied will create thousands of administrative and judicial acts and rulings around the world; however, the central core or heart of the universal patent (the rules of the TRIPS) will remain.” In that sense the developing countries resist the system; they consider it unfair and there is no much they could do about it more than to apply the exceptions and limitations it provides to the fullest. Nonetheless, that by itself won’t make it just. The system needs to be reset by TRIPS PLUS ULTRA.
The ultimate flexibility.
The TRIPS PLUS ULTRA could reset the system with the introduction of proportionality in way that the developing world won’t find it unfair, form which more harmonization could follow (an aspiration of the developed world). The ultimate flexibility should be found in the term of protection as this proposal argue, which will allow for a truly worldwide system of protection. 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).
The TRIPS PLUS ULTRA proposes a modification to the central core of the worldwide patent, introducing the principle of proportionality in terms of the duration of the protection granted to a patent by the different countries. As it provides justice to the essence of the legal institution, this could allow bringing together around the universal patent hart a greater number of elements that now are not part of it, i.e. to limit exceptions that now are allowed, and to get to cooperative agreements.