Elgar Commentaries series
In the TRIPS context, a patent is essentially a utilitarian economic measure to address a perceived problem in the failure of functioning markets to promote useful inventions. Narratives describing the TRIPS negotiations of patent measures provide some insight into what may have been intended, but the outcome was to establish a number of basic minimum standards, limited exemptions and exceptions, as well as a prohibition against discriminating between different places of invention, fields of technology and importation. This left Members to determine the details of their domestic patent schemes. The TRIPS patent minimum standards essentially reflect the existing patent schemes among developed Members at the time of the negotiations. The effective harmonisation of these minimum patent standards was probably pursued in TRIPS because of the perceived failure of the Paris Convention (1967) to adequately delineate the scope of patentable subject matter and obligations. TRIPS does, however, incorporate elements of the Paris Convention (1967), with the effect that Members’ patent-related obligations are determined by their complicity with both the minimum standards of TRIPS and those incorporated by TRIPS from the Paris Convention (1967). However, TRIPS does not fully deal with patent harmonisation or establish each element required for a comprehensive domestic patent scheme. Many controversies remain about different approaches to patent regulation among Members. While TRIPS may be a significant advance in patent standards, it is by no means the final word.
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