Twenty years long patents
- 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. 63, 64) that explains one of those global standards: twenty years long patents.
2. The standard: twenty years long patents.
“Finally in this analysis an aspect of great importance in terms of the configuration of the rights conferred by a patent should be referred to: the term of protection. As it has been repeatedly anticipated along this publication, in order to achieve a fair and more effective protection system, this is the aspect that has to change through a system that includes a proportional term of protection in relation to the economic capacity of the different countries (see […] Justice). The TRIPS Agreement provides that the duration of protection conferred by a patent shall be for a period of no less than twenty years from the date of filing.”
“The twenty-year duration of a patent is currently a part of the heart of the worldwide patent. While the TRIPS Agreement in article 1.1.2 allows the domestic legislation of each country to establish a more extensive protection than required by the agreement, this is very unlikely to happen. (Actually it has not happened.) The principles of Most-Favoured-Nation and National-Treatment have in a certain degree vanished granting benefits above the minimum established in the agreement. It is erroneous for any government to promote within its borders a longer period of protection, being that its population would be affected by a longer monopoly without the benefit for its citizens to enjoy of such an extra period of protection in other countries.”
“In a true universal law the term of a patent should not consider the interests of each nation. (The previously mentioned scenario can occur.) But it should account for the welfare of all those who are governed by it. It is in this sense that by overcoming the current conception (by introducing proportionality regarding the term of a patent in relation to the economic capacity of the various countries), the TRIPS could be instituted as a fair, valid, and effective global regulation. The WTO could be envisioned as an organism of human cohesion […].”
(Go back to the validity analysis for more on what the global regulation regarding patents looks like.)