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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.

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