Patents for both product and process
- 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. 54, 55) that explains one of those global standards: patents are given for both products and process.
2. The standard: patents are given for both products and process.
“[The] TRIPS Agreement establishes (as a principle that admits no exception) that patents should be granted for inventions whether they are products or processes. A process patent consists in the protection granted to a process leading to a result or the completion of a product and not on the actual product or outcome. The rights that a patent provides its holder vary depending on the type of patent in question. This regulation does not constitute a parameter that could be conceptually exceeded. It is a principle that all signatories should establish in their legislation. It is a uniform rule that will be applied to all countries equally, which outlines what is understood as an invention. Conceptually there is no way of exceeding this minimum. It is a broad concept of the patentable subject matter, which could be a positive feature as long as aspects of elemental justice are introduced (especially in terms of the duration of the exclusive right in a proportional way).”
(Go back to the validity analysis for more on what the global regulation regarding patents looks like.)