The non-discrimination clause contained in Article 27.1 of the TRIPS Agreement120 has often been mentioned as preventing any differentiation under patent law in the treatment of various products or sectors. This interpretation would suggest that any solution under paragraph 6 would likely violate Article 27.1’s non-discrimination clause.
120 TRIPS Article 27.1 “Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced”.
However, as stated by the panel in the EC-Canada case121 Article 27.1 prohibits “discrimination,” as opposed to “differentiation”. The panel held that:
“Article 27 prohibits only discrimination as the place of invention, the field of technology, and whether products are imported or produced locally. Article 27 does not prohibit bona fide exceptions to deal with problems that may exist only in certain product areas. Moreover, to the extent the prohibition of discrimination does limit the ability to target certain products in dealing with certain of the important national policies referred to in Articles 7 and 8.1, that fact may well constitute a deliberate limitation rather than frustration of purpose” (para 7.92)122.
121 WT/DS114/R, 17 March 2000.
122 The USA also held in the same case, based on the panel report on Section 337, that “differential treatment was not necessarily treatment that was inconsistent with TRIPS requirements” (para. 5.36 (b)(3) (ii), WT/DS114/R).
It is implicit within the Doha Declaration that differentiation in patent rules may be necessary to protect public health. The singling out of public health, and in particular pharmaceuticals (paragraphs 6 and 7), as an issue needing special attention in TRIPS implementation constitutes recognition that public health-related patents deserve to be treated differently from other patents.
The French patent law provides an interesting example of a patent law that differentiates the treatment of pharmaceutical products on public health grounds. It provides that:
“Where the interest of public health demand, patents granted for medicines or for processes for obtaining medicines, for products necessary in obtaining such medicines or for processes for manufacturing such products may be subject to ex officio licences in accordance with Article L. 613-16 in the event of such medicines being made available to the public in insufficient quantity or quality or at (abnormally high prices) by order of the Minister responsible for industrial property at the request of the Minister responsible for health.123
*123 Article L. 613-16.
Moreover, public health is not a “field of technology”, but a problem area that may be addressed with products originating in different technological fields, such as equipment, software, diagnostic kits, medicines, and a large variety of devices used for medical treatment.