Validity

The validity analysis: one element within the three-tier analysis that inspired the TRIPS PLUS ULTRA proposal (the other two elements are justice and effectiveness).

  1. Analysis of the status quo (the current law in force around the world).

This element addresses the question of what the applicable rules are, “the law of the land”, in each jurisdiction. Currently, the applicable law regarding patents is determined by the TRIPS Agreement, in most countries of the world.

It should be stated that the universalization (the overall global validity) of the TRIPS Agreement flows from an accord as to basic standards, which in the case of patents relate to the core of what a patent is, worldwide (patent regulation has largely vanished from the local or national sphere).

The core of what a patent is has been defined by the TRIPS Agreement globally. It establishes such essential aspects such as the patentable subject matter and the duration of the patent right. Exceptions and limitations to this core, set by the global standard, have also been established within the TRIPS Agreement. Typically, developing countries choose (or are recommended) to use the exceptions and limitations, while the developed world tends not to, thus giving broader protection.

  1. How the TRIPS PLUS ULTRA proposal could change this.

In terms of importance, the harmonized aspects (the uniform core of the global patent) are by far more relevant than those that are not harmonized, taking as a parameter to this conclusion the patent legal institution as a whole. (A legal institution is the set of rules that gives life to an abstract concept.) The basic rules regarding patents, which the TRIPS Agreement sets as a minimum for most WTO members, unequivocally shape the abstract legal institution of patents worldwide. There are calls to strengthen the uniform core of patents (usually coming from developed countries), as there are calls to maintain or even expand the scope of exceptions and augment those aspects open to individual interpretation by countries (usually coming from developing countries that advocate for greater flexibility). TRIPS PLUS ULTRA would entail the ultimate flexibility which, because it is truly comprehensive, could allow for greater harmonization, from which further benefits could follow for developing countries (justice, technology transfer, orphan diseases), developed countries (effectiveness, which would reduce the free riders problem -which is in itself unfair), and for the world as a whole (efficiency, justice, cooperation). Cooperation should be based on setting the proper standard for exhaustion of rights (a long-held wish of the developed world) in TRIPS and could even, maybe, prompt a way to tackle climate change).

If the burden of innovation were shared in accordance with each country´s wealth, which is what the TRIPS PLUS ULTRA proposal entails, it would be simpler for humanity as a whole to agree on the extent of patent protection, since it would hurt all populations alike in proportion to their economic status. TRIPS PLUS ULTRA would change the developing world´s perspective regarding the international system of protection. More harmonization, provided that TRIPS PLUS ULTRA came to be implemented, could actually be advantageous for the developing world (to all of us, actually), and it would meet a desire of the developed world. This may be the only way to move forward in the international arena.

The much-needed balance would be achieved by aligning the term of the patent (its duration), in accordance with each country´s wealth. The answer would not be in the limitations and exceptions, if TRIPS PLUS ULTRA were to be implemented.

Here you will find a conceptual map of the limitations and exceptions currently possible under TRIPS, and their relative significance.