Patents today

1. Introduction

The subject of patents is currently of great interest internationally, particularly in Argentina, where its benefits have been called into doubt by some sectors.

We will quickly review early patent legislation and those main features that are in force today, reviewing certain topical aspects, then analyze the clauses of the law and its regulations, as well as comparing it to the international agreements to which we are party.

2. The first patent laws

The history of patent laws is closely linked to the history of industry, because before the industrial age work was performed on an individual scale or in small groups and did not generally require such protection. The benefits of a sound patent system can only be appreciated in markets of certain significance, normally exceeding the scope of individual actions and requiring adequately financed research groups.

In the Middle Ages it was common for sovereigns to grant privileges or monopolies to certain persons, but such decisions had no other justification than the absolute power of the sovereign. The right to patent as it is known today derived from objective circumstances –the invention or discovery- that can provide grounds for analysis by the sovereign, but which do not depend on his will.

In Florence in 1427 architect Filippo Brunelleschi was granted a three-year privilege to make exclusive use of a specific kind of vessel that he employed to ship marble and materials for the constructions he was building. In 1474 the Venetian Senate issued the first known patent law, the basic rules of which are worth quoting as some concepts remain valid today. It reads as follows: "It is decreed by the authority of this Council that any person in this city creating a novel and ingenious artifice shall be obliged to register it at the office of the ‘Proveditori’ of the Commune as soon as it has been perfected in such a manner as to be possible to make use of it and apply it. It shall be prohibited for any other person, in any part of our country and land, to make any other similar artifice without the consent of the author during a term of ten years." Except for the mandatory nature imposed by the Venetian Senate and the term that may vary, not preserved today, in all other aspects the rule is fully current today.

England was the first country where the discretion of the sovereign to grant monopolies was called into question. In 1601 Queen Elizabeth I justified herself before Parliament, claiming that since she had been Queen she had not signed any privilege that she did not think was good and useful for her subjects. In the famous ruling in the case of “Darcy vs. Allen”, it was ruled that “no occupation can be prohibited or subject to a monopoly, unless it be a novel invention created by the skill of man or which can be appropriated by means of a patent”. In 1624 the Statute of Monopolies was passed, adopting the same principles. The first laws dealing specifically with patents were passed in the United States in 1790 and in France in 1791. Legislation in those countries and elsewhere were altered with relative frequency. The French law of 1844 is of particular interest to us because it was the basis for our first law on the matter that was sanctioned in 1864.

3. Basic principles of patentability

From these and other subsequent laws certain basic principles of patent legislation have developed that are still valid.

The first of these is the principle of novelty. An almost universally accepted principle is that patents can only be granted as a result of something novel, and that this novelty must be universal and not merely local.

Another principle that is accepted almost without exception is the requirement that the invention it is intended to protect should have an industrial application, industrial being understood to cover all human activity, including agriculture for example.

It has been harder to define another concept, known as the inventive activity or inventive step, that is required to grant patent rights. Its definition is difficult, and I think that the best way to do so is probably indirect, by indicating that this requirement is lacking in everything that would be obvious to a person skilled in the particular branch of industry.

If these three requirements are met, it is understood that the inventor has the right to prevent others from using his invention without his consent, under the terms of the Venetian law we have quoted.

This privilege is granted not just on the merit of the invention but also as a reward for the benefit to society as a result of the publication of the invention and its contribution to the progress of science.

This mandatory communication by means of the publishing of the invention is another common feature of patent legislation.

Most laws protect only inventions, excluding discoveries. Our first law allowed discoveries to be patented, but this has not been the case of the 1995 law that is currently in force. Nevertheless, article 17 of our Constitution guarantees patenting rights to all authors or inventors who “are the exclusive owners of their work, invention or discovery for the term accorded by law”.

Regrettably, this has been one of the many inconsistencies in our current patent law, which was the subject of an arduous and even scandalous treatment in Congress. However, we have grown accustomed to the fact that our law-makers do not usually concern themselves with ensuring that their laws are coherent with other legislation, even in the case of the law of laws, as our Constitution is known, being more interested in the so-called “political profit” to be gained from voting one way or another.

Lastly, another common feature of patent laws is that privileges are granted for a fixed period.

To sum up, we can say that the standard requirements for patenting are:

a) novelty,
b) industrial application,
c) inventive step,
d) publication of an adequate description, and
e) that rights are granted for a given period.

4. Rights from patenting

Although in legislation and among those familiar with the topic there is no major confusion in this regard, it should be pointed out that patents simply confer the right to prevent others from exploiting the patent for commercial purposes. Therefore, the holder of the patent cannot exploit it unless complying with all the legal requirements that the activity demands.

So it is interesting to transcribe section 14 of the recitals of the Common Position approved by the Council of European Communities on February 26, 1998, in relation to adopting a directive regarding legal protection for biotechnology inventions, which reads as follows:

“(14) Whereas a patent for invention does not authorize the holder to implement that invention, but merely entitles him to prohibit third parties from exploiting it for industrial and commercial purposes; whereas, consequently, substantive patent law cannot serve to replace or render superfluous national, European or international law which may impose restrictions or prohibitions or which concerns the monitoring of research and of the use or commercialization of its results, notably from the point of view of the requirements of public health, safety, environmental protection, animal welfare, the preservation of genetic diversity and compliance with certain ethical standards.”

5. The Paris Convention

The first major landmark in international law was the Paris Convention signed in 1883 by eleven nations (Belgium, Brazil, France, Guatemala, Italy, the Netherlands, Portugal, El Salvador, Serbia, Spain and Switzerland), that came into effect on July 7, 1884.

This Convention laid down that the signatories formed a Union for the protection of industrial property, and that there would be regular revision conferences, which then took place in Rome (1886), Madrid (1890), Brussels (1897 and 1900) and Washington (1911) although the reforms made there were not ratified by any state.

Various countries did ratify the texts approved at the conferences held at The Hague (1925), London (1934) and Lisbon (1958). The last conference, held in Stockholm, (1967) established the text that is currently in force for all GATT members.

This Convention has various categories of rules.

The first category covers rules that regulate relationships between Union members, their rights and the functioning of the Union.

Th second category is made up of the rules that require Union members to legislate on certain matters, or which allow them to do so.

For example, article 5A (2) that authorizes countries to take legislative measures to prevent the abuses which might result from the exercise of the exclusive rights conferred by a patent, introduced at the conference held at The Hague (1925). In addition, article 10 bis (1) binds the countries of the Union to assure nationals of such countries effective protection against unfair competition.

The third category establishes the rights of individuals regarding the domestic laws of each country. This category emphasizes the obligation of all member countries to provide equal treatment to its own nationals and the nationals of all other members.

One significant aspect that varies according to country is the matter of the immediate enforcement of Convention regulations, or whether in each instance it will be necessary for a specific change to be made to domestic legislation. This depends on the constitutional system in force in each country. In Argentina the Supreme Court has indicated that the rules of international treaties come into effect immediately, if their wording makes such enforcement possible.

This is an important aspect, because until our domestic laws comply with international law, the latter shall prevail, as established by article 75 clause 22 of the Argentine Constitution.

“Art. 75, cl. 22: To approve or reject treaties signed with other nations and international organizations and concordats with the Holy See. Treaties and concordats shall rank above laws.

The American Declaration of Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the Universal Covenant on Civil and Political Rights and its Optional Protocol; the Convention on the Prevention and Sanctioning of the Crime of Genocide; the International Convention on the Elimination of all Forms of Discrimination against Women; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; in the conditions they are in force do not repeal any article of the first part of this Constitution and should be understood to be complementary to the rights and guarantees it recognizes. Notice of withdrawal shall only be able to be communicated by the National Executive Branch following approval by two thirds of all members of each Chamber.

The remaining treaties and conventions on human rights, once approved by Congress, shall require the vote of two thirds of all members of each Chamber to enjoy constitutional standing”.

The Paris Convention has been the basis for many members to then enter into other parallel agreements, such as the TCP (Treaty for Cooperation on Patents) among others. Another treaty has recently been signed that will have enormous repercussions on world trade.

6. TRIPS

At this point it would be useful to recall the fundamental principles of the ADPIC agreement, also known as GATT-TRIPS on the matter of intellectual property, signed by over one hundred countries at Marrakech in April 1994.

This treaty establishes minimum standards for protection that all member countries must ensure, and repeats the principle of national treatment in the Paris Convention, as well as establishing the most favored nation treatment for all member countries.

The obligation is established to set up of suitable procedures to provide effective protection, such as special measures for control at customs, at the same time as allowing certain exceptions to patenting rights, especially in public health areas.

The treaty establishes staggered terms for the application of certain rules regarding patents, such as the inclusion of pharmaceutical products as patentable, and the reversal of the burden of proof in favor of the holders of patents on procedures, as it is generally harder to prove they have been violated.

It includes many options and exceptions, which is inevitable if it is intended to include so many countries, but it is nevertheless a huge step forward in the harmonizing of laws on patents and intellectual property rights in general, which will benefit international trade.

7. Patenting of medicines

Both the French law of 1844 and our Law No. 111, currently repealed, prohibited the patenting of “pharmaceutical compositions”.

The French law of 1791 did not exclude the latter from patenting, and as a result many such patents were granted, allowing many charlatans to deceive the public by making them think that their patent was a sign of official approval, which was not the case, as the patents were granted upon mere application. So much so that as by Aracama Zorraquín recalled, this situation gave rise to Law No. 22 Germinal of year IX. Art. 32 of this law forbade pharmacists from dispensing items other than simple drugs or the compounds recorded in the “Codex” created for the purpose.

Starting with the proposal by Breuer Moreno in 1960, various bills were submitted in Argentina to eliminate such a prohibition. Because of strong opposition by a sector of the industry, this was only achieved when Law No. 24,481 was passed.

I consider that the comments by Alberto Bercovitz regarding Spain are equally applicable to Argentina: " It is no secret that it has been precisely the problems related basically to the chemical and pharmaceutical industry that have been responsible for the failure of bills drawn up for reform to the Statute on Industrial Property.”

Today the problem seems to have been overcome, but it was the area that caused the fiercest debate on the rights of inventors, and it is difficult to believe that there will not be further attempts to delay the effective implementation of the new rules that were to be applied without reserves as from 2000 according to the TRIPS Treaty.

8. Can nature be patented?

Genetic engineering and the tremendous advances that have been made and will no doubt continue to be made raise new doubts and are not easy to resolve.

Is it possible to patent parts of the human body, genes, plants animals or other natural species?

To date answers have not been uniform. The US has been more permissive that the European Union, which prohibited such patents in 1995. This decision has been reviewed this year and will probably be changed.

It may be difficult to imagine what parts of the human body can be patented, but there are already products that can be manufactured in a laboratory that will form part of the human body; not just chemical products such as magnesia salts but products that are identical in their DNA to the cells that form part of our body. Are they to be considered a part of our own body?

We consider that those products in the first category are not part of our body, while those of the second category could be, just as a plastic and metallic implant or a pacemaker can work within our body. It would appear that the progress of science is erasing many of our mental limits.

Undoubtedly these new problems have an enormous emotional impact, so that the opinion that the patenting of such items should be rejected is at least understandable.

On the other hand, if we consider that a patent only represents an exclusive right that prevents others from carrying out certain activities, then patenting in itself should not affect our feelings.

The right to patent does not imply appropriating anything, so talking of patenting the human or animal body represents an inadequate use of language. Our genes or those of animals are not usually the result of a voluntary decision, but rather the consequence of a natural uncontrollable process. If someone were to patent a given gene that already exists in nature, the privilege would not be the gene itself -it would not be novel, because it already existed- but the gene as a result of an artificial process used to obtain it. If this patented gene were to reproduce naturally in the offspring of those who already have it, there would be no possibility of a patent being involved, because the gene in question would not have been obtained by the procedure patented. However, it would seem reasonable that whoever solved the problem of how to obtain the gene or the genetic sequence should receive a reward for his invention.

Let us consider a practical example. According to legislation in some countries, including the US no less, vegetable varieties can be patented, as can animal breeds. So can genetic engineering techniques, even those involving humans, as long as they meet the well-known requirements of novelty, inventive activity and industrial application.

In Europe the patenting of such items has been strongly resisted, although in July 1998 the European Parliament voted in favor of a reform along US lines, even though several steps are still required before the new rule can take effect.

The result of this has been that the US has developed a huge lead over Europe in relation to patents concerning genetic engineering, which in turn has led to great benefits for humanity such as inexhaustible supplies of insulin, new treatments for cancer and AIDS and plague and rot-resistant crops. The Europeans have fallen behind in this race, although now at least they have begun to revise their position.

If something were harmful, untradable or inappropriate, banning its patenting would have no practical effect, because it would only imply the failure to grant exclusivity but would not prevent the use of whatever was harmful, which is what should be avoided.

If some countries prohibit patenting and others allow it, the latter will invest in research and will achieve some resounding successes among their many failures.

Therefore there does not seem to be any valid reason to restrict patenting in the field of biology and genetic engineering. The only practical result that would be achieved would be to encourage the carrying out of new product and systems research outside the country itself.

9. Patents and morality

Our patents law, like many others, prohibits the patenting of inventions that are contrary to morals and sound customs.

We will not attempt to determine the principles corresponding to morals and sound customs, and will accept that there are standards that are known and accepted by all.

In the first place we should ask whether this prohibition on patenting is correct.

At first sight any prohibition concerning morals and sound customs (hereafter “morals” for the sake of brevity) is valuable, but patent law has the peculiar feature of invention patents which, unlike the granting of permits, are not a right to do something but a right to prevent others from doing so.

If I were responsible for ensuring compliance with moral rules, in principle nothing would be more effective than to patent in my name as many items contrary to morals as I could, to hold one more weapon to prevent others from incurring in actions contrary to morals, so I could pursue those that did as violators of my patents. Nevertheless, the practical effect would be negligible, because I would be restricted by time and would be limited to novel aspects.

All this might seem a little absurd, but in fact it is not. On the contrary, much to the regret of many detractors of the system, the patent regime is a law like any other and is woven into the general regime of our legal system, being in no way autonomous.

An immoral act should not take place not because its patenting is forbidden but because it is not correct, and article 953 of the Civil Code strikes it down as null and void, as if it had no purpose. This valuable rule in the Civil Code is an adequate instrument to remove any legal value from immoral acts.

Furthermore our Constitution establishes that:

“Art. 19: Private acts by persons that in no way offend public order and morals nor harm third parties are reserved to God and are exempt from the authority of the courts. No inhabitant of the Nation shall be obliged to do what the law does not order, nor be deprived that which it does not forbid.”

We can therefore conclude that private acts are thus excluded from law, and certainly from patent law, which should not judge the morality or immorality of the act.

Now, our patent law –like many others around the world- establishes that applications for patents, after undergoing a merely formal examination, should automatically be published.

What should be done if the application includes a description of an immoral act? Suppose that a patent is applied for that permits poisoning or torturing without leaving traces. Such a thing should not be published not because of the application of the patents law but because of the terms of the mentioned article 953 of the Civil Code:

“953. The purpose of legal acts should be things that are in commerce, or that for some special reason were not to have been forbidden from being the object of some legal act, or events that are not impossible, illicit, contrary to sound customs or forbidden by law, or which are opposed to freedom of action or conscience, of that infringe the rights of others. Legal acts that are not in accordance with this disposition are null as if they had no purpose.”

If the application is not published it will not be possible to grant a patent, but what really matters is that it is not published because otherwise this immoral object would be available to all, having been published in the official gazette, no less.

We can conclude therefore that patent law is not an isolated legal corpus, that it should be interpreted in relation to other laws, and that as a consequence, in our opinion most of the attacks upon it are groundless. Particularly in Argentina, which enshrines as a fundamental principle the concept of the abuse of rights that is defined as follows in article 1071 of the Civil Code:

“1071. The regular exercise of a right or compliance with a legal obligation cannot establish any act to be illegal.

The law does not protect the abusive exercise of rights; such shall be considered to be those that are contrary to the purpose in mind when such rights were recognized or which exceed the limits imposed by good faith, moral and sound customs”.

This rule applies in all cases, including those related to patents, as any right can in principle be the subject of abuse.

10. General conclusions

I consider that in an interactive or globalized world, as it is now known, no country can afford the luxury of falling behind in the race for research and development, to which end a good patent law is an indispensable tool, although it is certainly not the only one.

There are international treaties signed by a vast number of countries and applied by many which form an appropriate basis for a country to defend its interests as it sees fit.

This matter must be resolved by the competent authorities (which does not necessarily imply competence in all senses) bearing in mind the interests of the country in the current situation.

In short, as in the case of many other laws, a well implemented patent law, could be an important tool for growth and global participation, enabling the country to achieve a level of development similar to that of the most advanced countries.