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
Open this folder and view contentsIII. APPLYING EXISTING IPRS
View the documentA. Defining Public Domain
View the documentB. Title
Close this folderC. Applying Patent Laws
View the documentC.1. Subject matter
View the documentC.2 Patentability requirements
View the documentC.3. Novelty
View the documentC.4. Inventive step
View the documentD. Utility Models
View the documentE. Designing a sui generis Regime
View the documentF. Enforcement
View the documentG. Misappropriation Regime
View the documentH. Investment Incentives
View the documentI. Benefit Sharing
View the documentJ. Customary law
View the documentV. IPRs AND PUBLIC HEALTH
View the documentVI. CONCLUSIONS
View the documentREFERENCES

C.1. Subject matter

As mentioned, WTO Members have a certain leeway to determine what is patentable, notably with regard to the patentability of natural products and therapeutic methods.

Countries concerned with “bio-piracy” may wish to exclude from patentability substances found in nature, as well as the use of known products, in order to prevent misappropriation. In addition, it would seem logical that a country that broadly excludes methods of medical treatment, also broadly exclude new therapeutic uses for known products. Nevertheless, given the territoriality of the patent system, a country that prevents the patenting of uses under its national law cannot force other countries to follow the same approach. In the absence of international rules on the matter, nothing will prevent a country from declaring patentable (if the legal requirements are met) what is not deemed patentable in another country.

From the perspective of public health, the granting of patents over methods of therapeutic treatment seems undesirable, since it would reduce access to health care, particularly for the poor, while it is unlikely to promote in any manner the development of new TRM-based therapeutic methods.

Though WTO Members may limit the scope of patentability, some developing countries may worry that it could hinder investment in local bio-prospecting or research activities that may lead to patents on TRM-based products and successful commercialization. It must be borne in mind, however, that developing countries possessing TRM knowledge often lack the financial resources and the research and industrial capabilities to scientifically identify and isolate the compounds that explain the therapeutic effects of certain traditional medicines. In addition, TRM healers and local/indigenous communities generally lack the skills and resources necessary to follow the complex patent procedures and, in particular, to face the costs of registration and enforcement of IPRs both locally and abroad. Even with a wide scope of patentability, these factors seriously limit the practical utility of such an approach.

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