(1998; 97 pages) [French] [Spanish]
Extension of the duration of the monopoly
Pursuant to Article 33, the duration of protection offered will not cease until expiry of a period of 20 years from the date the patent application is filed.
This provision may result in an increase in the duration of the patent owner’s monopoly in many Member States where there is no therapeutic competition. In the pharmaceutical field, the logical consequence of this provision is that drugs will be sold at high prices, as is the case for all monopoly products, for a longer period of time, and manufacturers of generic products will have to wait longer before they can produce the drug in question and sell it at a more accessible price.
It is thus in regard to the length of protection that the Agreement will have one of its most important harmonizing effects. Unlike other provisions, which leave Member States a certain amount of room for manoeuvre, the Agreement is particularly strict and specific concerning the duration of patents.
In other words, the Agreement prohibits Member States from deciding on a special period of protection of less than 20 years depending on the field of technology, as was done by certain developing countries in the case of pharmaceutical products. The Agreement, indeed, imposes a minimum duration; but there is no provision in the Agreement that obliges Member States to issue patents for an even longer duration, as is the case in the United States and in Europe, especially for pharmaceutical products, to compensate for the length of time elapsing between the filing of a patent application and the effective marketing of the product.