(2002; 131 pages)
A.3. What can be patented?
The range of possible TRM-based inventions is wide. This section illustrates - without being exhaustive - some of the possible areas of patenting, and describes the modalities under which patents are granted in some jurisdictions. In examining the scope of patentability, it should be remembered that the granting of patents is dependent on each national law, and that a patent is only effective in the country of grant. Therefore the patentability in one country does not mean that certain TRM could be not patented in another country, and vice-versa. It is also important to note that neither the TRIPS Agreement nor any other international instrument in force, requires the granting of patents over certain natural materials as such (including genes). The Agreement specifically allows Members not to patent plants and animals, except microorganisms (article 27.3 (b)). There is, hence, considerable leeway to nationally specify the patent policy on this matter103. Some developing countries have expressed the view that the patentability of living materials is contrary to basic cultural and ethical values, and have suggested that the Agreement should be amended to allow Members not grant patents on living materials if they so decide.104
103 The Agreement only requires (Article 27.3 (b)) the patentability of microorganisms, that is of organisms not visible with the naked eye. Even in this case, there is no obligation on the WTO Members to grant patents on microorganisms which, according to the national law are not “invented”, but merely found in nature.
104 See, the proposal for review of article 27.3 b of the TRIPS Agreement submitted by Kenya on behalf of the African countries (WT/GC/W/302, of August 6, 1999). See also IP/C/W/206 of 20 September 2000.