Geoscience Reference
In-Depth Information
Besides the question of whether such inventions meet the three traditional statutory
patentability requirements, certain inventions may not fall within the scope of patentable
subject matter as defined by national law. This varies from one country to another. Many
countries exclude from patentability such subject matter as scientific theories, mathematic-
al methods, plant or animal varieties, discoveries of natural substances, methods for med-
ical treatment (as opposed to medical products), and any invention where prevention of
its commercial exploitation is necessary to protect public order and good moral or public
health (WIPO, 2012 ). Nevertheless, patent offices in countries with advanced biotechno-
logy capacity have routinely granted patents for gene-based inventions (as a matter of eco-
nomic policy), while leaving courts to decide whether they should stand in the case of dis-
putes.
The World Trade Organization (WTO) Agreement on Trade Related Aspects of Intel-
lectual Property Rights (the TRIPs Agreement) requires all WTO member states to provide
minimum standards of protection for a wide range of intellectual property rights. In so
doing, the TRIPs Agreement incorporates provisions from several international intellec-
tual property agreements administered by the World Intellectual Property Organization
(WIPO). It also introduces a number of new obligations, including in relation to patents
and trade secrets (Chiarolla, 2011 ) . In terms of the rights conferred by patents and their
duration, the TRIPs Agreement provides that a patent shall confer on its owner the right
to prevent others from making, using, offering for sale, selling, or importing the patented
product for a period of 20 years or more (TRIPs Agreement, Article 28). In the case of a
process patent, the same rights extend at least to the product obtained directly by the paten-
ted process.
Article 27.1 of the TRIPs Agreement states: 'Patents shall be available for any inven-
tions, whether products or processes, in all fields of technology, provided that they are new,
involve an inventive step and are capable of industrial application.' This provision calls
on WTO member states to provide patent protection for both products and processes, and
forbids discrimination among different fields of technology. Thus, states are not allowed to
take measures that would discriminate against the granting of patents, for instance, because
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