An important element of the balance is the standard for patentability. There are three generally acknowledged criteria for patentability. The product must:
- Be new
- Involve a non-obvious inventive step
- Be capable of industrial application
Under the TRIPS Agreement these three criteria, and the definition of “invention,” are not further elaborated, leaving countries able to define a broad or narrow scope for patentability. Patent legislation that is narrow, and limited to single technologies or applications allows domestic innovators to “invent around” any given patent, building on previous innovation to increase the impact and reach of new technologies, and stimulating national systems of innovation. Similarly, a stringent standard for the inventive step will prevent the patenting of routine discoveries in ways that frustrate truly valuable innovation.
The current baseline standard for patentability as embodied in the WTO’s TRIPS Agreement arguably strikes a reasonable balance, though each government will need to decide for itself where the appropriate balance lies in line with its domestic priorities and capacities. Our recommendation, from the perspective of fostering green innovation, is that TRIPS-plus strengthening of the standard should be pursued only by those countries with well-developed innovative capacity; others will find that stronger IP protection is costly.
Option 1:No mention of standard for patentability, meaning TRIPS applies
This allows the requirements of TRIPS to prevail.
Examples
In a large number of FTAs concluded by the EU, China, India, Japan and others, the chapters on intellectual property/patents do not mention the standard for patentability.
How Commonly Used
Option 2:Simple restatement of the TRIPS standard
This allows the requirements of TRIPS to prevail.
Examples
“… each Party shall make patents available 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.” (TPP, Article 18.37(1))
How Commonly Used
Option 3:Broadening of the TRIPS standard. This can be done in multiple ways.
Under the example text’s utility standard, for example, computer software—which is an important component in equipment for clean energy production, such as wind turbines—is generally deemed to be patentable as such.
Recommended only for those countries with strong innovative capacity, who will gain from such formulations at the expense of those with less innovative capacity.
“Each Party shall provide that a claimed invention is industrially applicable if it has a specific, substantial, and credible utility.” (US – CAFTA – DR FTA, Article 15.9(9)) How Commonly Used
Examples