No abstract

As a matter of law patents are granted with a presumption of validity. However, with the public interest considered as an essential basis for the granting of exclusive rights, subject only to procedural fairness, a competent national or regional authority may revoke or invalidate any patent that fails to comply with formal patentability requirements as grounded in law. Remarkably, at the heart of most successful patent regimes lies a sensible framework that allows any interested third-party to challenge the validity of questionable patents except that these instruments are not found within the least developed patent regimes. Importantly, given the conceptual reasoning that invalidly granted patents stand to prejudice the overriding public interest, a principle centrally established in the patent system, this article examines the extent to which states can implement legislative instruments on patent opposition to mitigate the potential consequences of granting questionable patents. Therefore, drawing on the jurisprudence containing substantive law and procedural requirements of patent opposition proceedings within the EPO and USPTO, the author argues that citizens in whose interests' patents are granted have the right to participate in the patent system and to check that only inventions that deserve exclusive rights are granted patents. The conclusion is that, if WTO members without patent opposition mechanisms were to explore and strengthen their regimes, citizens, competitors and other interest groups would be able to detect and invoke key provisions to challenge the granting of invalid patents, while maintaining that the patent system is untainted and free from questionable patent claims.

This article examines whether the so‐called reasonably affordable requirements of the public remains a valid condition under TRIPS on which World Trade Organisation members can grant compulsory licences. This article frames its analysis around Section 84 of the Indian Patent Act 1970 in relation to the compulsory licencing case between Bayer vs Natco. The author argues that despite the reasonably affordable requirements of the public not one of the common grounds on which members normally pursue for granting compulsory licences the fact that India has used similar provisions under its TRIPS‐compliant patent regime in granting a compulsory licence to Natco significantly validates the affordability requirements of the public as an independent condition that is consistent with TRIPS on which members can grant compulsory licences. This conclusion is premised on the understanding that no member state has even attempted to challenge the legality of India's decision before the WTO, under the dispute settlement understanding system and that paucity is more supportive of the thesis that, nothing in the light of TRIPS would, in fact, preclude the possibility of other developing countries amending their patent laws to demand that as substantive conditions patentees must satisfy the reasonably affordable requirements of the public.

The primacy of food security overrides that of energy. This is a reasoned view under the United Nations rights-based theories and practice. Within this context, there are voluntary guidelines according to which countries must secure an adequate food supply. Nevertheless, agro-related fuel has recently attracted scientific and commercial attention, following revolutionary thinking concerning the multifunctionality nature of agriculture products and the innovative use of crop resources as conduits in building our energy security and promote economic growth. Consequently, many countries may be facing the need for strategic decision-making in developing an agro-related fuel programme, given the lack of a credible global framework to inform policy approaches. On the back of this complexity, a key objective of this paper is to provide a critical assessment of whether a credible global collaborative framework can bring muchneeded certainty to enable developing countries to weigh up the importance and risks involved and to manage all of the related biodiversity intricacies connected to agrorelated policy development in relation to the realisation of sustainable food security.

No abstract