Dis'ordre'ly Loopholes: TRIPS Patent Protection, GATT, and the ECJ
1997; Routledge; Volume: 32; Issue: 3 Linguagem: Inglês
ISSN
0163-7479
Autores Tópico(s)Intellectual Property Law
ResumoI have seen with real alarm, several recent attempts in quarters carrying some authority to impugn the principle of altogether- attempts which, if practically successful, would enthrone free stealing under the prostituted name of free trade.1 I. INTRODUCTION A large Latin American nation, with whom both the U.S. ambassador2 and the United States have good relations,3 accuses the U.S. ambassador of insulting the nation's sovereign decisions,4 and the nation's legislature comes close to declaring the ambassador persona non grata.5 Eight months later, the legislature, citing threatened sanctions,6 very nearly does so again.7 The next month, the ambassador announces that he will leave the country and retire, despite his having lived there for three years.8 Sound like the latest political thriller? No-it's just the latest in the high-stakes world of international trade and intellectual property. The insult that precipitated the Latin American nation's actions? It was a comment by the U.S. ambassador calling Argentina's proposed patent protection law fit only for like Surinam or Burundi.9 Although patent protection and international trade might seem unlikely subjects to spur heated arguments, the General Agreement on Tariffs and Trade (GATT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)10 are likely to spur even more. TRIPS provides higher international minimum standards for patent protection11 than those that previously existed.12 Members are required, generally, to provide protection without discrimination as to the technology involved or the nationality of the party claiming the protection.13 There are, however, clauses in TRIPS allowing states to deny inventions protection under certain circumstances. This Comment focuses specifically on those clauses allowing patent exclusion based on the need to or morality, particularly because there is a lack of definition as to how the termsand thus the ordre and clause-is intended to be applied. This lack of definition would allow countries-it is primarily the lesser developed countries (LDCs) that are of concern-to exclude inventions if it were in their economic interest to do so. They could do so even though that exclusion might not comply with the terms of the TRIPS provision describing the scope of the exclusion. There may, however, be a means to limit or narrow the latitude for the LDCs to exclude inventions under TRIPS. Although the terms ordre public and morality are not narrowly defined, one may analogize to the usage of the terms by the Court of Justice of the European Communities (ECJ), which provides guidance as to how the ordre and clause might be applied. Further, the jurisprudence of the GATT dispute resolution panels is instructive as to the meaning of the term necessary. When the clause is applied with the ECJ and GATT guidance in mind, it becomes clear that states could not use this clause to exceed the intended scope of the TRIPS exclusion while purportedly complying with the clause. II. EXCLUSIONS OF INVENTIONS FROM PATENTABILITY UNDER TRIPS A. TRIPS Allows Potential Exclusions TRIPS generally requires that patents shall be available for any inventions, . . . and patent rights [shall be] enjoyable without discrimination as to . . . the field of technology.4 This requirement should be interpreted to mean that states should not exclude inventions from patent protection if they otherwise meet the stated requirements.'5 However, TRIPS expressly grants Member States the right to exclude inventions from patentability under certain conditions. The scope of the exclusions is largely dependent on the interpretation of the grounds'6 upon which the exclusion is premised. This Comment focuses on the interpretation given TRIPS Article 27(2).17 Under this provision, a state may exclude an invention from patent protection if prevention of commercial exploitation of that invention in their territory is necessary in order to protect or morality. …
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