Since all WTO Members are bound by the TRIPS Agreement, its minimum standards for IP protection must be included and implemented in national laws within the transitional periods allocated. These are only minimum standards however, and WTO Member countries may provide for greater IP protection than required in the Agreement. For instance, in Europe and the United States, pharmaceutical patents may be extended (beyond 20 years) for up to 5 years, to compensate for the long delays in obtaining marketing approval for a drug. The patent extension will vary from country to country (since there is no international standard) depending on the date of marketing approval. However, the pharmaceutical patent cannot be extended for more than 15 years from the date of marketing approval in European countries, and 14 years in the United States.
The main TRIPS standards, relating to pharmaceuticals, that countries must include in their patent law are:
• availability of patents for both pharmaceutical products and processes inventions that are new, involve an inventive step (i.e. non-obvious) and are capable of industrial application (or useful);
• protection of the product directly obtained using a patented process;
• availability of procedures at national level to enable patent owners to protect their rights against infringement.
In addition, if exceptions to patent rights and compulsory licences are incorporated in patent legislation, they should be, respectively, limited and conditional to conform with the TRIPS Agreement.