The TRIPS Agreement under Article 27 provides for three permissible exceptions to the basic rule on patentability. One for inventions contrary to public order or morality, the second is for the exclusion of diagnostic, therapeutic and surgical methods for the treatment of humans or animals, and the third is that Members may exclude plants and animals other than those categorized in the Article.
Section 1(1) of the Patents Bill 2001 defines what is a patent and defines what is an invention for the purposes of this Bill, mentioning the two existing categories of inventions, namely product inventions and process inventions. Product inventions exist in tangible form, e.g. machines, equipment, devices, etc., and process inventions generally consist of a series of steps for producing a product or a desired result, e.g. artificially colouring citrus fruits.
Subsection 2 also lists subject-matter that is excluded from patent protection in accordance with Article 27. The basic difference between a discovery, mentioned in item (i), and an invention is that a person who makes an invention "creates" something that has not existed before whereas the person who makes a discovery does not create but reveals the existence of something which was unknown up to then. Item (ii) concerns instructions to the human mind that cannot be patented. The exclusion of methods of treatment and diagnostic methods is in item (iii), clearly states that products for applying such methods (e.g., medical equipment) are not excluded. Section 3 deals with patentable inventions.
"(2) The following, even if they are inventions within the meaning of subsection (1), shall be excluded from patent protection:
(i) discoveries, scientific theories and mathematical methods;
(ii) schemes, rules or methods for doing business, performing purely mental acts or playing games;
(iii) methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practised on the human or animal body; this provision shall not apply to products for use in any of those methods;
(iv) plants and animals other than micro-organisms;
(v) essentially biological processes for the production of plants or animals other than non-biological and microbiological processes;
(vi) plant varieties;
(vii) inventions, the prevention within Antigua and Barbuda of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by law.
3(1) An invention is patentable if it is new, involves an inventive step and is industrially applicable.
(2) An invention is new if it is not anticipated by prior art.
(3) Prior art shall consist of everything disclosed to the public, anywhere in the world, by
publication in tangible form or by oral disclosure, by use or in any other way, prior to the filing or, where appropriate, the priority date, of the application claiming the invention.
(4) For the purposes of paragraph (3), disclosure to the public of the invention shall not be taken into consideration if it occurred within twelve months preceding the filing date or, where applicable, the priority date of the application, and if it was by reason or in consequence of acts committed by the applicant or his predecessor in title or of an abuse committed by a third party with regard to the applicant or his predecessor in title.
(5) An invention shall be considered as involving an inventive step if, having regard to the prior art relevant to the application claiming the invention and as defined in subsection (2)(b), it would not have been obvious to a person having ordinary skill in the Article.
(6) An invention shall be considered industrially applicable if it can be made or used in any kind of industry. 'Industry' shall be understood in its broadest sense; it shall cover, in particular, handicraft, agriculture, fishery and services.
(7) Inventions the commercial exploitation of which would be contrary to public order or morality shall not be patentable."
