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
Close this folderIV. POLICY OPTIONS: PROTECTING AND PROMOTING TRM
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.4. Inventive step

Countries wishing to limit patentability, as much as possible, in order to prevent misappropriation in the area of TRM, may apply a strict standard of inventive step. As mentioned above, if the role of a “skilled average person” is played by persons trained in TRM, some applications that would otherwise have been accepted, may well be rejected. It may also be the case that concepts familiar to anyone trained in Western chemistry, are deemed non-obvious by the TRM specialist. Examiners and judges, therefore, will face the difficult task of determining the body of knowledge under which inventiveness is to be evaluated. The patent system being a Western concept, however, an inclination to apply Western science is predictable, unless different policies on the matter are established.

In contrast, in countries that wish to promote patenting in the field of TRM, the inventive step may be defined so as to allow patentability of improved variants of existing products, for instance, better bio-availability or higher stability. Higher purity would normally not be enough to justify an inventive step, though purification processes may be patentable.

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