LDC members of the WTO are not obliged to protect pharmaceutical patents until 1 January 2033 (TRIPS Council decision, 6 November 2015, IP/C/73). Non-LDC developing countries are obliged to provide the minimum standard of protection for pharmaceutical patents (20 years).
Moreover, LDCs benefit from a waiver on the obligation to provide the means for filing patents and provide patent protection and exclusive marketing rights. Countries that did not provide patent protection for pharmaceuticals at the entry into force of the WTO in 1995 had to establish a means by which applications of patents for these products could be filed and to put into place systems for granting exclusive marketing rights for these products. To complement the longer transition period for pharmaceutical products, LDC Members were exempted from the obligation to provide for the possibility of filing mailbox applications (that is a means for patents to be filed while the country does not yet provide product patent protection) and to provide exclusive marketing rights until January 2033 (General Council Decision WT/L/971).
Utilization by LDCs:
In the survey undertaken by DESA, the following LDCs confirmed to having granted new patents on pharmaceutical products:
In Bangladesh patents for pharmaceutical products had been granted under the Patents and Designs Act No. 11, 1911 till 2006. According to available information, recently the country has discontinued the practice to grant patents on pharmaceutical products.
Nepal reported that the country does not grant new patents on pharmaceutical products.
Solomon Islands do not grant patents on pharmaceutical products.
Most African countries are members of regional intellectual property organizations who administer patents on behalf of Member states. They are the African Regional Intellectual Property Organization (ARIPO) for English-speaking Africa and the African Intellectual Property Organization (OAPI) for French-speaking Africa. Both organizations grant patents on pharmaceutical products.
In the case of OAPI, once it grants a patent, it automatically applies in all Member states. In the case of ARIPO, once a request to register a patent is received and examined by ARIPO, the request is circulated to Member states and Members will be expected to make comments within 6 months, after which the patent will be granted. Failure to comment by Member states means that the patent will be automatically accepted in Member states according to their laws.
Madagascar, not a member of OAPI or ARIPO, indicated that the Malagasy Intellectual Property Office issues patents for pharmaceutical products, including marketing rights since it became WTO Member.
- Special and Differential Treatment Provisions in WTO Agreements and Decisions – Note by the Secretariat
- Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health
- Paragraph 18 of the Doha Ministerial Declaration
- WTO document IP/C/25, 1 July 2002, “Extension of the Transition Period under Article 66.1 of the TRIPS Agreement for Least-Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products – Decision of the Council for TRIPS of 27 June 2002“
- WTO document WT/L/478, 12 July 2002, Least-Developed Country Members — Obligations Under Article 70.9 of the TRIPS Agreement with Respect to Pharmaceutical Products Decision of 8 July 2002
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