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Alternative health spending III. Patents A. What is a patent? B. Patent in Mexico C. United States Patent D. International Treaties IV. Traditional medicine in the field of international law A. Pharmaceutical and Public Health B. Compulsory licensing C. Biopiracy D. Repealing drug patents V. Options for intellectual property protection of traditional medicine A. The contract B. Databases C. Claim "sui generis" D. Compensation for exploiting indigenous knowledge VI. Conclusion I. Introduction The current conditions of today's globalized world, we have to integrate differe nt cultures and global level had not had to do with each other and therefore cla sh of cultures and ways of seeing and applying the law has created barriers at s ome point to achieve perfection in this matter is concerned. The game rules are dictated by powerful countries through international treaties that bind to other cultures and peoples to submit to the guidelines which were not used because most of them lived in isolation and under their own customs ove r time became law. One of the most ancient to have been affected by this, so to speak, interference from abroad are the customs of indigenous peoples and what about the traditiona l medicine that has characterized the relationship of indigenous peoples with th eir geographical environment . Large pharmaceutical companies have benefited greatly from the knowledge passed on for generations among the natives of each region, whose union goes beyond exi sting borders and that are related by race, origin of language, and so on. It is then that raises the argument about who should receive the compensation an d the native community by the billionaire business that has created the drug com panies around the world and the way is the goal of this thesis. In the first chapter, we will give a more precise definition of what is traditio nal medicine from their origins and above all the effectiveness that have been s hown how to relieve various illnesses over time, this without leaving the suppor t should be provided in a controlled manner to reduce public sector spending and spending to support the most needy in these matters, when used as first choice. The second chapter will focus on what a patent was patented and what we will see how international treaties, in the specific case of Mexico, greatly affect the legislation in this area to make them more in line with those of the United Stat es of North America, and in the same category as this type of agreements have ch anged the way we do business globally. The third chapter, after defining the concepts of traditional medicine and paten ts in their respective environments, takes us through an analysis of how drug co mpanies conduct their research agreements for the exploitation of traditional kn owledge of the countries to patent the themselves in ways that can be categorize d under unfair but legal systems existing patent protection. The fourth chapter, show the various options that have been used to the present time by various countries and organizations worldwide to protect traditional med icinal knowledge of indigenous peoples for their legal avenues, and some example
s of the effectiveness or ineffectiveness that have been in litigation, patent m edicines. In conclusion, after analyzing all these aspects will follow the relevant recomm endations on issues pertaining to patent the main stakeholders such as: indigeno us, drug companies and the governments of each country and how can harmonize the various views of the same on the subject. II. Traditional Medicine A. Definition of traditional medicine Several authors have tried to give his own definition of what is traditional med icine, but if we try to unify all the concepts that each employee could say that is the result of man's interaction with nature, caring, watching and especially learning from her, which results in a cultural enrichment in knowledge about th e use of biological diversity in their geographical environment in the treatment of various diseases of his nature. Traditional medicine goes beyond a simple definition on the use of medicinal pla nts used to cure ills that have to do with the physical aspects of man, but who also has to do with the spirit (evil eye, fright) this is why we mistakenly see beyond the same things as witchcraft or shamanism, is misplaced. B. Origins The origins of traditional medicine, they have to do with the origins of the ear th itself, only a small part of the planet is occupied by tropical forests and t hus the majority of organisms and species diversity of the planet. The moment the man begins to discover the benefits of drug plants were in their natural environment, began to use collective since for these ethnic groups such knowledge should be used with the ultimate aim of preserving the community and i ts members themselves, and then, they begin to be transmitted from generation to generation orally. Then you start to create what we now call worldview (the way of seeing the world ) on the part of indigenous peoples, whatever are their customs, traditions, dan ces and of course medicine as part of it. The idea was and is that all this knowledge to be shared by all members of the c ommunity and humanity at present, to benefit from them and for the healing prope rties of plants, health relief, so we have as creators of unique traditional med icine to the indigenous peoples living in areas with greatest biodiversity in th e world. C. The effectiveness of drugs vernacular When we speak of a generalized knowledge is efficient, it is because he has endu red through the years, generations and technological advances of the world, one example is Mexico, a country which still use traditional knowledge through what now they are called home remedies. Ponytail, blue palo Mozote, are examples of plants that can be achieved in the n ational markets for the eradication of kidney stones, the only one of the exampl es in which traditional medicine have proven their effectiveness in treatment of certain ailments has endured through time. But the strongest evidence on the effectiveness of drugs vernacular comes from t he same drug which have used them to develop their own products and continue to develop new from them. D. Alternative health spending The difficult economic situation of developing countries makes the traditional m edicine and holders of this knowledge one of the first options that most humble people go when they need a service to remedy their ailments or diseases. As we have already discussed this type of treatment based on the healing propert ies of plants can be reduced in cost-effective manner common human ailments, it is then, that health authorities have begun to document, monitor and support thi s type of sanitary practices. The knowledge of traditional medicine are currently disseminated through convent ional teaching models such as universities, courses, etc.. which is making the s ame will be more accessible to the general population with better trained profes sionals in the area of â â the same.
The need to adapt the models of ancient medicine with respect to the present is something that the current races are taking place through processes aimed at ach ieving a common structure in this area. Such is the degree of compatibility of Mexico, has with the People's Republic of China, in areas such as traditional medicine, an agreement was signed which aim s at a comprehensive cooperation between the two nations on the issue. This shows the government's interest in giving further impetus and recognition o f this ancient practice in our country supporting and receives feedback and also recognized the use of natural resources by traditional Chinese doctors, all in order to find solutions that less public spending impair the use of taxes paid b y the people. III. Patents A. What is a patent? Invariably when we talk about a discovery, invention or process, we reach the po int where its creators seek remuneration for the time, money and effort invested in achieving the same and that's where you seek the protection of designated go vernment agencies for this purpose. Once covered the due requirements of local laws on the matter, or inventors may obtain a document granting them a patent on a par with a temporary monopoly on t he outcome of its investigations, which can be inventions or processes ; for the ir use. B. Patent in Mexico Since Mexico's entry into NAFTA, the current legislation regarding patent was ra dically reformed as a requirement by the United States and Canada to sign the sa me, was that Mexican law would be more consistent with the standards of the coun tries mentioned above to protect the rights of its citizens with patents issued in both countries. This led to a reform of the Law on Inventions and Trademarks issued in the Offic ial Journal of the Federation on February 10, 1976 in terms of intellectual prop erty legislation, on January 16, 1987 and which was published in the middle abov e, being one of the requirements for it to take place. A benchmark of how it was modified the law on intellectual property to facilitat e and ensure the signature and ratification of NAFTA for North America is eviden t in transitional twelfth article which gives the possibility for foreigners to claim patent had passed into the public domain based on existing legislation fro m the mid-seventies and the letter you want to read as follows: "Twelfth. Patent applications filed before the date this law comes into force in any of the member countries of the Cooperation Treaty patents for inventions wi thin fractions announced eighth article 10 of the law of inventions and trademar ks is appealing, in Mexico remain the priority date of the first application fil ed in either country, provided that: I. Be filed with the Secretary an application for a patent on the inventions lis ted by the first applicant for the patent in any country mentioned in the preced ing paragraph or its successor, within 12 months following the entry into force this law; II. the patent applicant that the Secretariat check the terms and conditions tha t would prevent the regulations of this law, when applying for a patent in any o f the member countries of the Cooperation Treaty patent, or if, having obtained respective patent and III. exploitation of the invention or import a commercial scale the patented pro duct or obtained by the patented process we have started by anyone in Mexico pri or to the filing of the application in this country. The validity of the patents that were granted under this Article shall terminate on the same date it was ma de in the country that has submitted the first application, but in no case excee d the term of 20 years counted from the date of presentation. " The agency responsible for issuing, monitoring and regulation of patents in Mexi co, the Mexican Institute of Industrial Property or IMPI which like most of thei r peers worldwide supports and advises inventors who are the formalities for the patent within the same, provided they meet the requirements. Notably, both in Mexico and abroad there are procedures that allow us to verify
that it meets one of the essential requirements to apply for a patent, that is, that is novel and unobvious in view of a professional who has extensive knowledg e related the invention which is seeking official recognition. The Mexican system on industrial property is the most common features on the sub ject can be found in most legal systems worldwide, but on the duration of patent s is the longest given to inventors and that as mentioned in Article 23 of the I ndustrial Property Act is the period of 20 years and is subject to payment of th e fee. On the other hand, another common feature, showing a fragility to the internatio nal protection by the agency responsible for patents: territoriality, is that it s scope is limited by the boundaries that Mexico has with other countries. In Mexico the constitution, local and international laws to which it belongs, gi ve traditional medicine a legal framework that at first glance may seem puny to the issues that deal with intellectual property protection of it. One example could be the Industrial Property Law, in Article 16 which mentions c ases in which an invention is patentable, the text reads: "Shall be patentable inventions that are new, result from an inventive and indus trially applicable, under the terms of this law except: I. Essentially biological processes for the production reproduction and propagat ion of plants and animals; II. biological and genetic material as found nature; III. animal breeds; IV. human body parts that make up living, and V. plant varieties " Because most of the medicinal uses of plants given by the Indians of the mummies of Mexico is mostly based on its effects rather than a process for extracting t he active substance of the same would seem that the fractions second and fourth article cited above preclude a record of knowledge itself, but look carefully yo u will see that it does not prohibit medical formula or component thereof are ou t of patent protection, since Article 19 states that is what is not patentable: "It is not considered inventions for the purposes of this Act: I. Theoretical or scientific principles; II. discoveries that consist in making known or revealing something that already exists in nature, even though it was previously unknown to man; III. schemes with more plans, rules and methods for performing mental acts, play ing games or doing business and mathematical methods; IV. computer programs; V. forms of presentation training; VI. aesthetic creations and artistic or literary works; VII. methods of surgical, therapeutic or diagnostic treatment applicable to the human body and to animals, and VIII. mentions the juxtaposition of known or mixtures of known products, change of use, shape, dimensions or materials, except that in reality it is the combina tion or merger so that they can not function separately or the qualities or func tions their characteristics are modified to obtain an industrial result or use n ot stop obvious technical matter. " Unfortunately in the field of medicinal patents health laws and industrial prope rty laws that cause serious contradictions show that inhibits, in some cases, th e ultimate holder of the ownership of the active substance that is marketable. Proof of this is the reform by the Executive Regulation of Health Inputs and Rul es of the Industrial Property Act published in the Official Journal of the Feder ation and the letter says: "Article 167 bis. The registrant of medication apathetic shall append to the app lication the documentation that holds the patent for the active ingredient or su bstance that has the license, both written in the Mexican Institute of Industria l Property. Alternatively, and according to the list of products set out in Article 47 bis o f the rules of industrial property law, may declare, under penalty of perjury, t hat complies with the provisions applicable to patents for the active substance different subject of the request. In this case, the Secretariat immediately afte
r the technical cooperation of the Mexican Institute of Industrial Property so t hat, within the scope of its jurisdiction, it shall determine not later than wit hin 10 days of receipt of the request, if invade existing patent rights. In the event that the Mexican industry itself concluded that there are valid patents on the substance or active ingredient which the applicant is not entitled licensee s, reforming the Secretariat so that it prevents the applicant in order to demon strate that holds the patent or license which has respective ends within Secreta riat, which shall not be less than five working days from the notification unhee ded. In the event that applicant does not correct the omission by the Secretaria t dated the application shall inform the applicant the reasons for this determin ation, where appropriate, the issue before the competent authority. The lack of response from the Mexican Institute of Industrial within own means favorably not ed the applicant " Once the above sought reforms that it will be related to the law of industrial s elf-created for this purpose article 47 bis which reads as follows: "Article 47 bis. In the case of drug patents granted to the apathetic, the insti tute will publish the journal, and then the public will put a list of products t hat should be protected under industrial substance or active ingredient, which r equire the validity of the patent in question. This list contains the correspondence between the generic and identity Negrete p harmaceutical active substance and nomenclature or form of identification in the patent, which should be conducted according to internationally recognized man. The list referred to in this article does not contain patents protect processes of production or formulation of drugs. In case of dispute over the ownership of the patent for the active substance, in terested parties may submit, by agreement, to arbitration in terms of corporate law. " Such shortcomings mentioned in the patent system and its Mexican legislative pat ches have been applied in matters that are related to alternative medicine requi res, in many cases to national inventors seeking better options for protection i n countries more legal presence internationally and the United States. C. U.S. Patent In the United States, title 35 mentioned in section 101 that any person can inve nt or improve any process that may be useful is worthy of being protected by a p atent will be issued by the authorities of that country after studying the same. If the patent is granted, in automatic gives the cardholder a temporary monopoly lasting 17 years and the possibility that it can prevent from entering U.S. ter ritory of products and / or services that use your process or processes as long as it was the case and properly supported. The United States, have the Bill of Rights Indigenous very important document by which the cultural environment in its many and varied forms of indigenous peopl es of this country and they collectively recognize their intellectual rights on it. Currently, the patent office of our northern neighbor, asks for patent applicati ons (s) process (s) for an active substance, to mention the source (s) Tradition al (s) (if any) and its application in the treatment of diseases in the field of culture or indigenous cultures from which it was obtained. However, one of the main problems facing traditional medicine in the United Stat es is no processing of the materials used in it, in this case in particular from plants of the habitat of indigenous prerequisite for the granting of a patent. Again, referring to title 35 section 102 in the same respect we note that a cons tant that is presented against patent protection for traditional knowledge, incl uding medicine and its application: novelty. Also called "prior art" of U.S. law in the aforementioned section is shown as an obstacle to recognition patent on the subject, as indigenous communities do not usually have the habit of writing his wisdom, but as we have seen the transmiss ion of the same is done through oral communication, generation after generation, which leaves no record of the contribution in the field have done the same. D. International Treaties The globalized economy has not yet reached perfection, but we can see how the in
fluence of more developed countries over the rest of the world is just palpable, and that they are accepted in the market controlled by them, models must adapt their legal parameters that are most beneficial, especially when it comes to pat ent protection are concerned. Europe, always made the first cutting edge intellectual property treaties that a re known worldwide, in order to harmonize the various laws of the region in this matter, but it was not until years later that the main objective was achieved a bove. The process was long since in the first stage of the Paris and Berne Conventions , did not oblige member countries to adopt a generalized scheme to protect inven tions or processes from one country to another which was reflected in the docume nts issued by them and including the structure to continue to do so. During the last century, in the year 1970 what was arguably the first step towar d a kind of patent that would have international recognition, however, as in any treaty or agreement of this nature its scope only to those who were effective s igned the Final Act, in addition to that the idea appeared to prosper as demonst rated by the emergence of new agreements based on the subject of a commercial tr ansaction between the nations of the world. In the eighties, the United States are beginning to emerge as the sole economic and military power globally and in this environment adhering to the Berne Conven tion with the intention that the patent protection can be extended all members o f the same. With the advent of GATT and later the TRIPS and WTO history of American power ex tends to the economic sphere, demanding he respected their intellectual property rights internationally, as demonstrated in the Uruguay Round, being that this n ation in its early days allowed duplication of works that had been printed abroa d in pursuit of public interest concerning education and development of it. This type of treaty gives the world's most industrialized nations the option of punishing by various means poor or no performance of the member fails to comply with the requirements established in the previously signed agreements on industr ial property or similar. One of the clearest examples of the above was the requirement of a change in how we manage the registration of patents in Pakistan by the United States, which s eeks a higher concordance with its own legislation demanded this country impleme nt an application before granting the same, which became a standard for all coun tries included in the TRIPS compulsory basis in the mid 90's. Although the global stage in the commercial and therefore in intellectual proper ty seems to be adverse to those nations whose purpose is to be included in a lar ger reality is that to do so they risk a civil destabilization due to lack of re sources inside to fill their priority needs. IV. Traditional medicine in the field of international law A. Pharmaceutical and Public Health As we saw in the previous chapter, the policy of the World Trade Organization, f orced member countries to adopt the model of intellectual property protection es tablished in countries with greater economic capacity, that for some marked the beginning of a debacle issues in public health. The practices that these companies conducted on called third world countries and contraction cause detriment to their government representatives who are on the horns of a dilemma having to decide whether to remedy the health problems of cit izenship without falling into actions infringe intellectual property rights that may be frowned upon by WTO members. Pharmaceutical companies based much of their income in the control of patents fo r various medicines produced and before the current economic crisis have been se en lately with global distrust of developing countries that have begun to give a higher value on natural resources in countries which lack the control that are in the global economy, as a means of pressure, even though they continue to use legal instruments included in international treaties to master. Taking into account the millions that are handled based on the pharmaceutical in dustry we must understand why the market is so fought and protected by the limit ed number of companies working to that end, and the growing markets of the count
ries underdeveloped makes tracing them are future plans to expand its market and thus their profit margin.