TRIPS and the exception of diagnostic, therapeutic and surgical methods for the treatment of humans or animals from patentability

Abstract

The main objectives of the system of patents are, among others, to promote research and development of competences following two fundamental paths: first, through the concession of rights and privileges to the inventors and secondly, through the exclusion which these rights recognize and thus prevents others from utilizing or developing inventions already created. In this article exceptions that affect the research and development within the realm of biomedicine will be analysed. With particular focus on the flexible content and the juridical problems derived from the application of article 27.3 a) TRIPS. This article excludes the methods of treatment of persons or animals from the patentable matter, that is to say medical or veterinary treatments. Nevertheless, the article also clearly states that products or procedures used during a medical treatment indeed are patentable to full extension when not included in the category of “methods of treatment”. Resting on the basis of the jurisprudence of the administrative body integrated in the European Patent Office, given the inexistence in the World Trade Organization (WTO), this article is cantered on the intent to interpret this precept and to clarify the outlines of its application and the material scope of the exception to be studied. Furthermore we will examine whether the adopted solutions or criterions by the States Parties varies considerably or if they on the contrary are characterized by similarity in the considerations based on the need for the protection of public health, the necessity to incentivize the innovation or if they are based on the level of economic development of every country.