Protection and Promotion of Traditional Medicine - Implications for Public Health in Developing Countries
(2002; 131 pages) View the PDF document
Table of Contents
View the documentThe South Centre
View the documentPREFACE
View the documentINTRODUCTION
Open this folder and view contentsI. INTELLECTUAL PROPERTY AND TRM
Open this folder and view contentsII. RATIONALE FOR PROTECTION
Close this folderIII. APPLYING EXISTING IPRS
Close this folderA. Patents
View the documentA.1. Novelty
View the documentA.2. Inventive step
Close this folderA.3. What can be patented?
View the document(i) Natural products
View the document(ii) Extracts and formulations
View the document(iii) Combinations and preparations
View the document(iv) Production and extraction processes
View the document(v) Methods for treatment and diagnostics
View the document(vi) Uses of known products
View the document(d) Patenting of TRM in practice
View the documentB. Trade Secrets
View the documentC. Trademarks
View the documentD. Geographical Indications
Open this folder and view contentsIV. POLICY OPTIONS: PROTECTING AND PROMOTING TRM
View the documentV. IPRs AND PUBLIC HEALTH
View the documentVI. CONCLUSIONS
View the documentREFERENCES
 

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.

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