Patenting Human DNA: What Flexibilities Does the TRIPS Agreement Allow?
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) requires World Trade Organization (WTO) members to grant patents in all fields of technology. A large number of patents covering genes, including of human origin, have been issued in developed countries. In some cases, patents granted cover any possible use of the gene, even if not disclosed in the application. However, WTO members enjoy a significant flexibility to determine their policy regarding gene patents. The TRIPS Agreement does not define what an “invention” is; it does not determine either how the novelty and other patentability requirements are to be applied. Hence, national laws may exclude genes, even if claimed as isolated, altogether from patent protection. If gene patents were issued, they may nonetheless apply limitations to the scope of claims, such as circumscribing protection to the uses specifically claimed by the applicant. An exception based on moral considerations is also viable, particularly in the case of human genes. In view of this flexibility, countries may adopt the policies on this subject that best suit their cultural and moral values and their technological or industrial policies.
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