NCCR - The TRIPS Agreement, the Evergreening of Patents and Access to Medicines

Rationalized by fostering innovative research, patent monopolies are (or at least should be) designed to function at an optimum: where maximum incentive is accorded to investment in research given an as large as possible accessibility to third parties of the protected inventions. Achieving this optimum is however a dynamic process involving many elements. The evergreening of patents (basically referring to the situation in which an already patent-protected invention is re-applied under slightly modified descriptions, claims or characteristics shortly before the expiry of the ‘original’ patent) is a phenomenon affecting one of the major cogs in the wheel of patent balancing: the (20 year) term.

With the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs Agreement) obliging the grant of both process and product patents in all fields of technology by 2005 in all developing countries, optimizing access to medicines within the borders of TRIPS has become essential for developing countries and their generic industries.

This paper aims to analyse the issue of evergreening, one feature of the patent balance that is actually not a ‘classic’ topic in the access to medicines debate since it is considered to be an abuse of the patent system. It aspires to show with the (negative) example of India that TRIPS-consistent tackling of evergreening is possible within the traditional patentability requirements and no additional legal action is actually needed.