Sovereignty matters

Formally at least, patent administration remains an area of state sovereignty. State sovereignty has been eroded over patent standards, where through multilateral, regional and bilateral trade agreements, many states, most of them developing countries, have moved up to ‘international’ standards that really are the standards of the US and EU. Even though states largely retain discretion over how to administer a patent system, we have seen that the patent offices of many developing countries are becoming integrated into a system of global governance led by the Trilateral Offices.

The integration of developing-country patent offices into this global governance structure is not necessarily consistent with their national interests. It is not immediately obvious, for example, that a developing country which imports medicines should follow the pharmaceutical examination standards of developed-country patent offices that are prepared to accept the gaming behaviour of patent attorneys in the drafting of patent claims. By doing so a developing country is simply importing that gaming behaviour. It is changing the selection pressures that operate in its markets. We have seen that India and Brazil have taken steps to avoid the quality problems that exist in this area at least. In India, the Indian Patents Act allows the examiner to come to a different view of the patentability of a pharmaceutical product (see Chapter 7), and in Brazil the outcome may be different because the Brazilian pharmaceutical regulatory authority has the power to overturn the Brazilian patent examiner's decision in the case of pharmaceutical patents.