Article 70.8
Protection of existing subject matter

Comments

8. Where a Member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall:

For countries that do not grant pharmaceutical patent protection as of 1 January 1995,

(a) notwithstanding the provisions of Part VI,

independently of the transitional periods accorded to them,

provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed;

these countries must implement as from 1 January 1995 an adequate infrastructure to receive patent applications for such inventions of pharmaceutical products.

(b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and

These applications shall be examined at the latest in 2005 for developing countries and 2006 for the least-developed countries, in terms of the criteria for patentability set out in the Agreement, which shall be applied as if they were being applied on the filing (or priority) date of the application. This is a juridical artifice to preserve the novelty of the inventions made from 1995 onwards that will not receive patent protection for a maximum of some ten years.

(c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b).

Such inventions will receive the protection due to them (if they meet the criteria of the Agreement for patentability) as from the date of the grant of the patent after the end of the transition period and for the remainder of the 20 years counted from the filing date.