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 folderA. Patents
View the documentA.1. Novelty
View the documentA.2. Inventive step
Open this folder and view contentsA.3. What can be patented?
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. Patents

This sub-section illustrates how the patent system may be applied to different components of knowledge, based on, or related to, the medicinal use of plants and other natural products. Though, as shown below, applicants from developed countries have been the main users of the patent system in the field of TRM, applications from local companies and researchers from developing countries are reportedly93 growing, particularly in the context of codified TRM systems.

93 See, e.g., Karki, 2001; Yongfeng, 2002.

Patents protect inventions, that is, new, non-obvious technical solutions. Patents are granted by a government authority and confer the exclusive right to make, use or sell an invention generally for a period of 20 years (counted from the date on which the application for the patent was filed). In order to be patentable, an invention usually needs to meet the requirements of absolute novelty (previously unknown to the public), inventive step or non-obviousness, and be capable of industrial application (or useful). Patents may be granted for all types of processes and products, including those related to primary production, namely agriculture, fishing or mining.

Patents may be conferred to protect inventions based on or consisting of natural substances (including genetic materials), plants and animals. As discussed below, they can also be granted in some countries in respect of the use of a product and of methods of diagnostics, surgical and therapeutic treatment. Though there are important differences among national laws on the subject matter of patent protection, at least in principle, patents may be applied to different components of TRM, provided that the above mentioned patentability requirements are met.

There are, however, several major obstacles to affording patent protection to existing TRM knowledge. Some such obstacles stem from the legal standards established to acquire patent rights in national laws.

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