(2002; 131 pages)
(iv) Production and extraction processes
Many traditional medicines are obtained through fractional distillation,108 purification or concentration. The processes for obtaining such products, if novel and non-obvious, may be patented.
108 The process of separating components that have different boiling points from a volatile liquid, by first heating the liquid and then condensing and collecting the components as they vaporize.
There are numerous examples of patents relating to extraction and other processes for the preparation of medicines based on natural products, such as ES 475.812 on a process for the extraction of organic compounds with therapeutic activity from plants; ES 2010127 for the preparation of a medicine for skin reparation; EP 0530833 on a process to prepare hard gelatine capsules containing Chinese herbal extracts; ES 8801986 for preparation of a juice or gel of aloe; ES 393347 on a process for the extraction of an active ingredient from anacardium occidentale; and US 4956429 on a method of making a coca leaf flavor extract.
As mentioned, process patents confer less market power than product patents, because alternative, non-infringing processes, may be sometimes utilized to obtain the same product. The TRIPS Agreement, however, obliges Members to extend the protection conferred over a process to the product directly obtained by the patented process.109 Hence, if the patented process is unique, or the alternative processes are difficult to apply or not economically viable, process patents may effectively be used to block the commercialization of the product obtained.
109 See article 28.1 (b) of the TRIPS Agreement.