Abstract

The patent law has been harmonized at the international level in 1994 by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In practice, this text requires all member States of the World Trade Organization (WTO) to recognize the patentability in all industrial sectors. A pharmaceutical patent shall then be granted for any pharmaceutical invention insofar as it fulfills all three criteria for patentability: novelty, inventive step and industrial application. Thus, developing countries can no longer copy molecules protected by patents. At first glance, the trips Agreement completely prevents the development of pharmaceutical industries in the most advanced developing countries from a technological point of view –emerging countries– and dried up sources of supply of cheap medicines for poor countries. However, if the trips agreement strengthens the protection of intellectual property rights, flexibilities have been provided by the wto law to ease international patent law under certain circums-tances, like public health considerations. The objective of this article is then to show how India, Brazil and Thailand, are using some of these flexibilities to ease the general principle of pharmaceutical inventions patenting according to their development goals, so that other emerging countries can inspire themselves by these examples.

Highlights

  • The patent law has been harmonized at the international level in 1994 by the Agreement on Trade-Related Aspects of Intellectual Property Rights.1 under Article 27 of this agreement “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application”

  • The recognition of patentability for pharmaceutical inventions is due to the expansion of international trade and correspondingly increased counterfeiting of patented products of multinational firms, it places pharmaceuticals on a legal equal footing with other industrial products, despite the fact that drugs, as they relate to public health, are not like other goods

  • Two systems existed : industrialized countries had put in place intellectual property systems to protect their innovations, and developing countries traditionally excluding medicines from patent protection, which allowed them in practice to copy, in any lawful point of view of their legal system, the molecules patented in industrialized countries provided that these “tolerated” copies were not re-exported to protected markets (Robine, 2008)

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Summary

Introduction

The patent law has been harmonized at the international level in 1994 by the Agreement on Trade-Related Aspects of Intellectual Property Rights (trips). under Article 27 of this agreement “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application”. Under Article 27 of this agreement “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application” This provision requires all member States of the World Trade Organization (wto) to recognize the patentability in all industrial sectors. Some emerging countries have benefited from inaccuracies in the text, and in particular from the lack of definition of the patentability criteria, in order to adapt their patent system to the specific objectives of their socio-economic and technological policy (Remiche et Desterbecq, 1996) Such is the case of Brazil and India which adopted restrictive patentability criteria to limit the scope of pharmaceutical inventions patents. Cia prévia” while India has chosen to exclude me-too drugs from patentability

The Brazilian mechanism of prior authorization
The use of the threat of compulsory licensing by Brazil
Granting of compulsory licensing in Thailand and Brazil
Conclusion
Abigail Rodríguez
Francisco Venegas
Enrique Hernández Laos
Sonia Beatriz Roitter
Analía Erbes
Gabriel Yoguel
Andrea Pujol
Findings
Amélie Robine

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