Patent law Flashcards
Explain why patents are important in farma and how that relates to the shift from traditional medicine to precision medicine
What are the theories underlying patent protection?
The Natural rights theory: we have a natural right to our ideas. And a natural right to the sole exploitation of these ideas. this property is personal and exclusive. Unauthorised use without compensation would be theft.
Problems: this theory does not make any distinction between intellectual property and traditional, tangible property. IP are based on things that are not naturally appropriable and non-rival.
Term: If IP was based on this theory, we would have endless IP rights, because an idea will not “end”.
The issue with the exclusive right: If two people had the same idea independently, how would it work?
so there is no clear basis or justification for patents under Natural Rights Theory.
Reward theory: a patent is an exclusive right as a reward for the creators’ creative efforts. or an incentive for their creative efforts. According to the reward theory, inventors deserve a fair reward, proportionate to the usefulness of the invention to society and its costs
It allows recoup of the investments. this may spur innovation, disclose knowledge
amount of effort is relevant
value for society is a determining factor.
Problem:
what is the subject of the reward?
if it is labour –> then see labour theory
is it creativity?
- then why “first to file” principle?
- how do we explain that initial creation is more valuable then independent re-creation? why should we exclude from patentability things that are huge efforts and have a lot of relevance to society? ex.: discoveries
how to justify patents if they conflict with other human rights
no clear basis for justification under reward theory
what are the 3 domains in which the Paris Convention for International Protection of Industrial Property has substantive provisions.
national treatment for all nationals of the Member States of the Union,
priority right,
common rules: patents granted in different countries of the Union covering the same invention are independent from each other.
the inventor has the right to be named in the patent.
grant of the patent will not be refused on the basis of restrictions on sales of the products/processes covered.
compulsory licensing is optional, under certain conditions.
what did the TRIPS agreement say regarding patent law?
Regarding patent law, it created harmonised patentability requirements under article 27.1
how does the reform of the pharmaceutical legislation change the IP protection covering products?
The reform does not propose changes to the IP covering pharmaceutical products. it does not affect the EU system of intellectual property protection (patents, trademarks, copyright…)
how does the social contract in the patent system work?
owner receives exclusivity, society receives disclosure of the invention, so that others can learn from it, and secrecy is avoided.
which inventions are excluded from patentability? ordre public
diagnostic, therapeutic and surgical methodsfor the treatment of humans or anymals.
plants and animals other than micro’organisms, and essentially biological processes for the production of plants or animals.
