Besides the substantive conditions for patentability, patent applicants must also fulfil a number of procedural requirements. Among these, is the condition that a full-written description of the invention must be given. This must, at least by legal framework, be specific enough to allow someone skilled in the art to reproduce the invention. This is the principle of sufficient and enabling disclosure, which is, for instance, incorporated in the Substantive Patent Law Treaty ⁷.

Even where the conditions for patentability are fulfilled, most patent regimes admit, to certain exceptions, to patentability. Thus, under the TRIPS Agreement, patentability can be denied where the commercial exploitation of the invention will, for instance, endanger human, animal or plant life or health or cause serious prejudice to the environment ⁸. Before the adoption of the TRIPS Agreement, some patent regimes used to make a distinction between process patents covering the method or technology through which a product is manufactured and product patents encompassing the substance or product itself. A number of countries, thus, made a distinction between product and process patents in the pharmaceutical field and only permitted the patenting by pharmaceutical companies of the specific process through which a medicine was made but not the medicine itself. This was done largely to provide access to medicines for different segments of society. In India, this has, for instance, been of tremendous importance since 1970s in providing incentives for the development of a generic pharmaceutical industry. The distinction between product and process patents is progressively losing its significance because the TRIPS Agreement imposes patentability of process and product patents in all fields of technology.

Rights Conferred

The main rights conferred by a patent are the rights to prevent others from manufacturing, using or marketing the invention. The patent generally provides the exclusive right to exploit the subject-matter of the claims, including the right to manufacture, use and market it. However, the right to use the invention is not a direct consequence of the grant of a patent. The right to exploit is, in fact, like in the case of medicines or transgenic organisms, subject to a number of other conditions in most legal orders.

Notes and References

⁷ Article 10, Draft Substantive Patent Law Treaty, Standing Committee on the Law of Patents, Tenth Session, Geneva, May 2004, WIPO Doc SCP/10/4.

⁸ Article 27 (2), TRIPS Agreement.