Integrating Public Health Concerns into Patent Legislation in Developing Countries
(2000; 140 pages) [French] [Spanish] View the PDF document
Table of Contents
View the documentTHE SOUTH CENTRE
View the documentFOREWORD
View the documentGLOSSARY*
Open this folder and view contentsI. INTRODUCTION
Open this folder and view contentsII. PATENTABLE SUBJECT MATTER
Open this folder and view contentsIII. SCOPE OF CLAIMS
Open this folder and view contentsIV.1 Novelty
Close this folderIV.2 Inventive Step
View the documentIV.2.1 Options - Inventive Step
Open this folder and view contentsIV.3 Industrial Applicability
Open this folder and view contentsV. SPECIAL CASES IN PHARMACEUTICALS
Open this folder and view contentsVI. DISCLOSURE
Open this folder and view contentsVII. EXCEPTIONS TO EXCLUSIVE RIGHTS
Open this folder and view contentsIX. CLAIMS INTERPRETATION
Open this folder and view contentsX. COMPULSORY LICENSING
View the documentXI. FINAL REMARKS
View the documentREFERENCES
View the documentBACK COVER

IV.2.1 Options - Inventive Step

A possible option for developing countries is to define and apply strict criteria for inventive step, in order to avoid the granting of patents that may unduly block competition in health-related products and processes. Such strict criteria may prevent the protection of locally developed “minor” innovations. But these innovations may be covered by utility models (or other forms of sui generis protection for know-how to provide compensatory rewards without exclusive property rights), rather than by diluting the inventive step requirement.

However, inventive step criteria cannot be so strict as to undermine the duty to grant patents in all fields of technology under Article 27.1 of the TRIPs Agreement. Coordination among the patent offices of developing countries could help to establish sound State practices and to avoid disputes.

The inventive step may be incorporated in national law as presented in model option.

Inventive Step
Model Option

a) Patents shall not be granted in respect of a product or processes which is obvious to a person skilled in the art.

b) In particular, an invention shall be deemed obvious when the prior art provides motivation to try the invention, or when the method of making a claimed product is disclosed in or rendered obvious by a single piece or any combination of pieces of prior art.

A national law may only include a general provision, as contained in paragraph a). This is what most laws in force do. However, it may be possible to clarify the general rule through wording as presented in paragraph b), which specifies cases in which the existence of inventive step would be denied. This additional paragraph may help to avoid the patenting of obvious-to-try inventions and other trivial developments, and in particular, of products which are obtainable through obvious methods.

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