ABSTRACT

This chapter addresses the latter aspect with specific reference to the pharmaceutical sector. It examines an anecdotal approach, taking up questions related to patentability raised European, United States or Asian courts, where the Trade-Related Aspects of Intellectual Property Rights (TRIPS)-consistency of a domestic practice or interpretation has been an issue. The European Court of Justice further considered the argument of the patentee according to which TRIPS would require an absolute protection for genetic sequences. As a consequence, the ECJ held excluding an absolute patent protection for deoxyribonucleic acid molecules to be TRIPS-compliant. Section 3(d) and the Supreme Court interpretation have initiated a debate about its consistency with the TRIPS Agreement, as well as the wider policy question on how to deal with minor modifications and incremental innovation in the pharmaceutical sector. Based on the transition periods of the agreement, developing countries had until 2005 to introduce product patent protection in areas not protectable prior to TRIPS.