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Increasing access to medicines 165
for 20 years after filing, it would likely further delay the granting
of patents. This would both delay investments in R&D related to
the patented innovation and reduce the effective life of the patent
once granted. In the context of medicines, this would mean fewer
new drugs and longer delays in their appearance on the market.
Others argue that the rules applied by patent examiners should be
changed. For example, it has been suggested that patent applications
should be evaluated not only on the basis of the three standard
criteria (novelty, non-obviousness, and utility) 29 but also on the basis
of their effectiveness. This, however, presupposes that effectiveness
can be measured prior to the development and testing of a product,
which usually it cannot – especially in the case of new molecular
entities. In such circumstances, the requirement of ‘effectiveness’ will
lead to arbitrary decisions by patent examiners and judges, and
patents will not be granted to many potentially effective products.
We believe that there are better solutions, including:
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Simplified procedures for granting patents. At present, many
countries have highly bureaucratised patent agencies, which
are extremely slow in making decisions on the granting of
patents; streamlining procedures along the lines of
international best-practice could improve the situation.
The introduction of regional patent granting agencies. Where
resource constraints are a problem for patent offices, such
agencies could reduce costs and increase throughput, thereby
increasing the competitiveness of the whole region.
Improved incentives for patent agents to make decisions. For
example, introducing a performance related pay system
(appropriately constrained by quality requirements) might
increase throughput of patent applications; contracting out the
service to the private sector could have a similar effect.
Simplified procedures for challenging patents in courts. This
would enable more rapid and less costly resolution of disputes.
The introduction of petty patents or ‘utility models.’ This
would be useful for certain classes of product where a full