There is also some flexibility for the determination of the novelty and inventiveness standards in national laws, in ways that may expand or restrict the patenting of TRM. There are no restrictions in the TRIPS Agreement138 or in other international instruments, that limit countries’ freedom to determine such standards, provided that they do not discriminate on the basis of the place of the invention or the field of technology.139 The stricter those standards are, the narrower the scope for holders of TRM knowledge (and for those acquiring rights over it) to obtain patent protection.
138 See, e.g. Correa and Yusuf, 1998, p. 200-201.
139 See article 27.1 of the TRIPS Agreement.
What the standards of patentability should be is a matter of national policy. Low standards may increase the possibility of local/indigenous communities to obtain patents, should they wish to do so, but the society will bear the cost of recognizing patents over knowledge that is and should remain in the public domain. In addition, acquiring patents and enforcing them are complex and costly endeavors, and there is nothing suggesting that such communities will become in the near future more interested in or able to use the patent system than they are today.
It is conceivable, however, that - particularly in the case of codified TRM systems - some research institutions and local companies take advantage of such low standards in order to protect and commercially exploit products with already known properties. This may favor the development of a domestic industry based on TRM. The counter point is, however, that knowledge that could be publicly available would become subject to monopolistic rights, in turn reducing access to medical treatment, all that without any real contribution to the advancement of knowledge.
In addition, should a country opt to favor the patentability of TRM via low standards, given the national treatment principle, both national and foreigners would enjoy equal rights to apply for and obtain patents under such standards. Who would benefit the most may be an open question until the experience shows what the outcome is, but there is a great chance that, because of greater technological and financial resources, foreign companies could take advantage in exploiting lax standards. A collateral but significant problem is that, given the non-discrimination principle contained in article 27.1 of the TRIPS Agreement, the same low standards should be applied to any other field of technology, including pharmaceuticals, possibly leading to a wide number of patents on marginal developments, aimed mainly at blocking competition or extending de facto the life time of a patent on certain active ingredients.140 As a result, the costs to be supported in the area of public health (and other sectors) by an unnecessary restriction of competition, may significantly exceed the benefits (if any) of that policy.
140 See, on these practices, often known as “evergreening”, Correa, 2001.