A possible option for developing countries is to define and apply strict criteria for inventive step, in order to avoid the granting of patents that may unduly block competition in health-related products and processes. Such strict criteria may prevent the protection of locally developed “minor” innovations. But these innovations may be covered by utility models (or other forms of sui generis protection for know-how to provide compensatory rewards without exclusive property rights), rather than by diluting the inventive step requirement.
However, inventive step criteria cannot be so strict as to undermine the duty to grant patents in all fields of technology under Article 27.1 of the TRIPs Agreement. Coordination among the patent offices of developing countries could help to establish sound State practices and to avoid disputes.
The inventive step may be incorporated in national law as presented in model option.
a) Patents shall not be granted in respect of a product or processes which is obvious to a person skilled in the art.
b) In particular, an invention shall be deemed obvious when the prior art provides motivation to try the invention, or when the method of making a claimed product is disclosed in or rendered obvious by a single piece or any combination of pieces of prior art.
A national law may only include a general provision, as contained in paragraph a). This is what most laws in force do. However, it may be possible to clarify the general rule through wording as presented in paragraph b), which specifies cases in which the existence of inventive step would be denied. This additional paragraph may help to avoid the patenting of obvious-to-try inventions and other trivial developments, and in particular, of products which are obtainable through obvious methods.