This is a multi-part message in MIME format. --------------82B107058045CE719E5E4F09 Content-Type: multipart/alternative; boundary="------------0F8137F7D0D43A9190015F5F" --------------0F8137F7D0D43A9190015F5F Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit I am afraid if we leave it at this, that one of the most valuable features of this TRIPS exception may be misunderstood. While it may be true (I am actually not willing to concede that pharmaceuticals constitute a field of technology otherwise not excludable from TRIPS) that pharmaceuticals cannot be excluded, this bar may not be as wide as it appears. Many pharmaceuticals--perhaps even most, certainly over time--are not patented as pharmaceuticals. Many, perhaps most, are patented as methods of using pharmaceuticals (because, for one reason or another the underlying drug may not be patentable). Those methods can be excluded from protection, allowing such drugs to be commercialized royalty-free in any country caring to take advantage of this TRIPS power. One of the best examples that comes to my mind is the patent over AZT, the AIDS drug. AZT is not patented as such, but only its therapeutic use. All of the various countries, especially Asian and African ones, that are having trouble financing the purchase of AZT could easily avoid this and still be in full compliance with TRIPS by barring patents on therapeutic methods. Most of these patents are simply therapeutic methods. Mickey Davis Alan Story wrote: > Mickey is quite right. Under TRIPS Art. 27 3 a), TRIPS > signatories can exclude "diagnostic, therepeutic and > surgical methods for the treatment of humans or > animals"...but they cannot exclude pharmaceuticals, which > was the main point I was making about compulsory > licenses. > > But then, again as Mickey mentions, S. 301 could come down > on such countries with a thump on those countries who don't > do things the U.S. way. > > Interestingly, when the U.S. Congress added subsection (c) > to section 287 of the U.S. Patent Act which denied > holders of patents and surgical procedures the > right to sue medical practioners for the > unauthorised use of these procedures in medical > activities (meaning, failure/refusal to pay royalties), > this protection against damages was only given to U.S. > medical practioners and not those practicing medicine > elsewhere. > > Cheers > Alan Story > > > > On Mon, 20 Mar 2000 10:08:49 -0500 "Michael H. Davis" > <Michael.Davis@law.csuohio.edu> wrote: > > ---------------------- > Alan Story > Kent Law School > Eliot College > University of Kent > Canterbury Kent UK > CT2 7NS > a.c.story@ukc.ac.uk > Ph. 01227 823316 > Fax 01227 827831 --------------0F8137F7D0D43A9190015F5F Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit <!doctype html public "-//w3c//dtd html 4.0 transitional//en"> I am afraid if we leave it at this, that one of the most valuable features of this TRIPS exception may be misunderstood. While it may be true (I am actually not willing to concede that pharmaceuticals constitute a field of technology otherwise not excludable from TRIPS) that pharmaceuticals cannot be excluded, this bar may not be as wide as it appears. Many pharmaceuticals--perhaps even most, certainly over time--are not patented as pharmaceuticals. Many, perhaps most, are patented as methods of using pharmaceuticals (because, for one reason or another the underlying drug may not be patentable). Those methods can be excluded from protection, allowing such drugs to be commercialized royalty-free in any country caring to take advantage of this TRIPS power. One of the best examples that comes to my mind is the patent over AZT, the AIDS drug. AZT is not patented as such, but only its therapeutic use. All of the various countries, especially Asian and African ones, that are having trouble financing the purchase of AZT could easily avoid this and still be in full compliance with TRIPS by barring patents on therapeutic methods. Most of these patents are simply therapeutic methods.Mickey Davis
Alan Story wrote:
Mickey is quite right. Under TRIPS Art. 27 3 a), TRIPS--------------0F8137F7D0D43A9190015F5F-- --------------82B107058045CE719E5E4F09 Content-Type: text/x-vcard; charset=us-ascii; name="michael.davis.vcf" Content-Transfer-Encoding: 7bit Content-Description: Card for Prof. Michael H. Davis Content-Disposition: attachment; filename="michael.davis.vcf" begin:vcard n:; tel;fax:216-687-6881 tel;work:216-687-2228 x-mozilla-html:FALSE org:College of Law;Cleveland State University adr:;;1801 Euclid Ave.;Cleveland;OH;44115; version:2.1 email;internet:michael.davis@law.csuohio.edu title:Professor of Law x-mozilla-cpt:;-1 fn:Michael H. Davis end:vcard --------------82B107058045CE719E5E4F09--
signatories can exclude "diagnostic, therepeutic and
surgical methods for the treatment of humans or
animals"...but they cannot exclude pharmaceuticals, which
was the main point I was making about compulsory
licenses.But then, again as Mickey mentions, S. 301 could come down
on such countries with a thump on those countries who don't
do things the U.S. way.Interestingly, when the U.S. Congress added subsection (c)
to section 287 of the U.S. Patent Act which denied
holders of patents and surgical procedures the
right to sue medical practioners for the
unauthorised use of these procedures in medical
activities (meaning, failure/refusal to pay royalties),
this protection against damages was only given to U.S.
medical practioners and not those practicing medicine
elsewhere.Cheers
Alan Story
On Mon, 20 Mar 2000 10:08:49 -0500 "Michael H. Davis"
<Michael.Davis@law.csuohio.edu> wrote:----------------------
Alan Story
Kent Law School
Eliot College
University of Kent
Canterbury Kent UK
CT2 7NS
a.c.story@ukc.ac.uk
Ph. 01227 823316
Fax 01227 827831