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Article 27.1, discrimination and patent extentions under Hatch/Waxman Act
As an apparent last ditch effort to claim that compulsory
licensing of pharmaceutical drugs is somehow illegal
under the TRIPS, PhRMA and the South African PMA
now claim that Article 27.1 of the TRIPS make it
illegal to "single out" pharmaceuticals or health
care for compulsory licensing, on the grounds that
it is discrimination as to "the field of technology."
This is a very very weak argument. The USA already
has field of technology specific compulsory licensing
programs, such as for nuclear energy (42 USC 2183),
air pollution control devices (42 USC 7608) and for
public health under our Bayh-Dole Act (35 USC 203).
But more generally, we have other areas of discrimination,
and in particular, for patent extensions and research
exemptions under the Hatch/Waxman Act.
I have now asked the WTO, WIPO, USTR and US PTO if the
TRIPS Article 27.1 provisions would make US patent extensions,
which PhRMA supports, illegal under the TRIPS.
The entire TRIPS agreement is on the web at:
Patentable Subject Matter
1. Subject to the provisions of paragraphs 2 and 3, patents
shall be available for any inventions, whether products or
processes, in all fields of technology, provided that they are
new, involve an inventive step and are capable of industrial
application.See footnote 5 Subject to paragraph 4 of Article 65,
paragraph 8 of Article 70 and paragraph 3 of this Article,
patents shall be available and patent rights enjoyable without
discrimination as to the place of invention, the field of
technology and whether products are imported or locally produced.
[Footnote: 5. For the purposes of this Article, the
terms "inventive step" and "capable of industrial
application" may be deemed by a Member to be synonymous
with the terms "non-obvious" and "useful"
James Love, Director, Consumer Project on Technology
I can be reached at email@example.com, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org