263 / 610
261
for patents for new uses of known products.
48
In Australia, evergreening has been
a common practice even before the adoption of the FTA.
49
However, the rest of the
countries had to implement the possibility to patent the new use of an existing sub-
stance. The FTAs therefore limited their freedom to determine what should be pro-
tected under patents and allowed the pharmaceutical companies to prolong their mo-
nopoly on essential medicines.
50
The final version of the TPP allows patents for “any invention, whether a product
or process, in all fields of technology, provided that the invention is new, involves an
inventive step, and is capable of industrial application;”
51
the patents will be available
for inventions that are “new use of a known product, new methods of using a known
product, or new processes of using a known product.” This version allows evergreening
in the signatories of the TPP; the wording was proposed by the US. It was opposed
by other negotiators, however, as was mentioned previously, the other negotiators ap-
parently accepted the evergreening proposal in exchange for the US giving up their
proposal for the patentability of medical procedures. This was a rational movement—
whereas evergreening is a common practice, patentability of medical procedures
would mean a substantial negative change, endangering health care in the signatories.
However, the fact is that evergreening will have negative impact on public healthcare
as well. It obliges the signatories to grant patents even for minor variations to already
existing substances that do not contribute to enhancing medical care (for example
changes “in drug dosage regimes, drug delivery, and even packaging systems”).
52
Such
a provision undermines the whole purpose of patent protection, which is to enhance
health care by encouraging development of new substances with therapeutic benefits.
IV. Patent Term Adjustment
TRIPS provides every patent with twenty-year protection. During this period, the
patent inventor has the right to exclude other competitors from making, selling and
distributing the invention. The period of twenty years starts running at the first filling
of the application; during the twenty years, the patentee is protected from competi-
tion even if someone else independently found the same invention. When filling, the
inventor will disclose his invention in the patent application ”in a way that enables
others to make the invention without undue experimentation.”
53
At the time when
TRIPS was concluded, some Members have already had a twenty-year protection. On
the other hand, some other countries (mostly developing countries), such as India, had
48
Van Hoa Tran & Charles Harvie,
Regional trade agreements in Asia
, (Northampton: Cheltenham, 2008)
at 222.
49
Chesmond, supra
nota 110 at 53.
50
Christopher Heat; Kamperman Sanders, Anselm, eds,
Intellectual Property and Free Trade Agreements
(Oxford and Portland, Oregon: Hart Publishing, 2007) at 33 [Heat].
51
TPP.
52
Ibid.
53
Guzman
at 445.