Legal status of the new detected uses for old patents as an independent invention is a problematic issue that gives rise to basic legal challenges regarding patent's promotion standards of protection, in particular the prolongation of the patent monopoly's term. International instruments, uncertainties, and a variety of treatments within different national and regional jurisdictions have increased the complexities of patentability of new uses. These uncertainties, especially in Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), the most important covenant on commercial aspects of intellectual properties toward new uses, have resulted in dividing various jurisdictions into contradictory of both proponent and opponent positions. In this article, a comparative framework has been employed for analyzing these contradictory treatments, which are mainly founded on “being novel” and “lack of novelty” through a different sense, i.e. proving act of “creation” via fulfillment the constructive essentials of “process invention” based on patent law's principles. Within that context, we employ a framework has been designed for comparison at three levels: the international level (TRIPS), regional (European Patent Convention and Andean Union) and national level (emphasizing on United States' law because of its most consistency with our sense). In this regard, we are trying to propose an exhaustive and prescriptive criterion that, while satisfying the essentials of customary patent law, meets the interests of both proponent and opponent parties. The criterion lies in adjusting the border of constitutional elements of the process based on desires and interests.
"Emerging Issues: New Uses, Whether Threat or Chance, What is the Current and Appropriate Legal Treatment?,"
Oklahoma Journal of Law and Technology: Vol. 11
, Article 3.
Available at: http://digitalcommons.law.ou.edu/okjolt/vol11/iss1/3