Developing Countries May Have Difficulties In Construe

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Developing countries may have difficulties in construe the substantive provisions of TRIPS when exploiting TRIPS flexibilities. For instance, article 14 of Brazil 's Industrial Property Law distinguishes less inventive inventions applying a utility model from the “unusual” inventions. The test of inventive step is the “common or usual manner” test, instructing examination should be observed from the view of a person skilled in the art. This provision intends to identify the inventions eligible only for utility model protection from those eligible for both utility model and patent protection. Nevertheless, Dr. Romandini indicates that “the German legislature in 1978 finally abandoned it without significant opposition in the …show more content…

A research reports that the IPO never examined more than 5,000 patent applications in a single year before the 2005 amendments. There were only 163 professionals capable of performing patent examination at the IPO, according to a research published in 2010. Nevertheless, the capable 62 examiners granted 7,166 patents during 2007–08. Under this serious pressure to review, Indian examiners have relatively less legal resources than those countries having established standards for decades. Insufficient human resources and training are two most discernable difficulties for India to fully implement the IPA. In addition, examiners have other choices, such as working for private entities after training for a better salary. As for the hurdle of examination, how to use substantial standards to realize the legislative purpose and spirit of section 3(d) is another challenge for the IPO. Patent law itself does not define these “secondary” patents, i.e. patents with a lower quality or value, but merely compared with the primary patents from a time perspective, i.e. the comparison of the application and prior art. It still can be argued that some of the secondary patents are not just merely a tool to prolong product life cycle (“evergreening”). To prevent evergreening, Indian examiners must distinguish a trivial change from the previous patented products with no significant additional improvements from a

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