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specifies in its Art. 15.9(2) the patentability of products “for the treatment of humans
and animals.”36 On the other hand, for example US-Australia and US-Korea FTA both
include the flexibility to except medical procedures from patentability. This shows
a trend of the US imposing its interest in the patentability of medical procedure on
developing countries, which have a weaker negotiation position.
The US proposal for the TPP was to allow the patent protection to medical methods
and, thus, deprive the other countries of the flexibility given in TRIPS art. 27.3, which
allows the Members to reject patentability to medical procedures. According to the US
proposal, all the methods of treatment, except for those in which a doctor uses only his
own bare hands, would become a potential patent.37 The goal of the proposition was to
apply the same regulation of this issue as the US has to the rest of the signatories. It is
true that the US law allows patentability of medical methods. However, it also includes
safeguards to limit the negative impact of the provision—for example, the US law does
not allow suing doctors for patent infringement in the course of medical activity.38 The
TPP draft, however, did not include such safeguards. All the other negotiators opposed
the US proposal.
Luckily, the final version of TPP does not include the provision regarding patent-
ability of medical procedures. The reason why the US eventually stepped back from
their proposal might be explained in footnote 56 of the leaked version of TPP pro-
posal from 2014. The footnote related how the US and Japan were reconsidering the
inclusion of the medical procedures patentability subject to “consensus in the patent
landing zones.”39 This may refer to a compromise in which the US traded the medical
procedures patentability for the patentability of new methods of use of known sub-
stances – a proposal, which was accepted in the end.40
As was shown before, the patentability of medical procedures hurts the patients in
the US. If it was introduced in developing countries, the negative effects would be
even worse.
III. Evergreening
A problem related to the issue of patentable subject matter is evergreening.
Evergreening is a practice in which a patent owner extends the protection of his patent
by obtaining 20-year separate patents on multiple attributes of one product;41 it oc-
curs for example when a pharmaceutical company obtains a new patent for an already
36 Omar Aloui, “Intellectual Property Rights” Peterson Institute for International Economics online <http://
> at 151 [Omar].
37 Medical Procedure supra note 38.
38 Public Citizen, “Australia” supra note 40.
39 Burcu Kilic & Hannah Brennan, “What is Patentable under the Trans-Pacific Partnership?” The Yale
Journal of International Law Online online >.
40 Ibid at 15.
41 “The wrongs of evergreening“ (2008) Managing Intell. Prop. 100 at 100 [Evergreening].