All fields of technology
- 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 the TRIPS Agreement sets a global standard, and that this global standard admits exceptions and limitations. We´ve also said that the relevance of the limitations must be measure in comparison with the global heart of the patent; what was set to be its heart is by far more relevant than what was left out, globally).
When analyzing how those global standards get implemented, we also said that “as for patents, the minimums parameters of the agreement are either impossible (conceptually there is no such possibility) or hard (because of practical elements) to exceed”.
Up next you will find quotes from “A global solution for the protection of inventions” (pp. 57) that explains one of those global standards: patents should be granted in all fields of technology.
2. The standard: patents should be granted in all fields of technology.
This minimum parameter conceptually does not admit the possibility of any additional advantage (not a principle that members could exceed), although it admits exceptions.
This was a polemic issue at the time of the establishment of the TRIPS Agreement, which can be overcome by the implementation of the TRIPS PLUS ULTRA Proposal. The reaction of the Developing world was to freeze the negotiations, reject the system and use limitations and exceptions. The very possibility of the use of one of the limitations, compulsory licensing (although not used as much as some would have wanted), has arguably created the problem of orphan diseases. Provided the TRIPS PLUS ULTRA proposal comes to be implemented, the whole attitude of the developing world towards the system could change, bringing benefits for all.
“With the introduction of this regulation, the scope of protection for inventions was expanded globally. For example, patents of pharmaceutical products were not always admitted […], given their unmistakable links with the sensitive topic of public health. The aforementioned principle is not negative per se. It is obviously a positive element when seeking to reduce market distortions to a minimum by making the regulation a global standard. It is also positive when seeking to ensure research and development in areas that actually require it and of which the whole of humanity benefits (e.g., medicines). Still this principle should be accompanied with the change proposed in this [web page] (in terms of the period of protection) to avoid it to turn into a harmful aspect for humankind, especially for the poorest. This proposal does not seek to step back on relationship to the presence of this principle in the global agreement governing the subject, which inclusion was perhaps the most criticized as it was commented in the previous chapter. It seeks to correct the system by applying proportionality in terms of the period of years of protection that each country grants, while maintaining this principle.” Taken from “A global solution for the protection of inventions“, pp. 57.
(Go back to the validity analysis for more on what the global regulation regarding patents looks like.)