The Patentability of Second and Subsequent Medical Uses in Asia's Patent Legislation

Abstract

This study examines, from a comparative law perspective, how jurisdictions across East, Southeast and South Asia deal with the issue of the patentability of second/subsequent medical uses. The Covid-19 pandemic highlighted the importance of subsequent medical uses of known medical compositions, as a number of medicines that are being used to treat Covid-19 were originally developed for other illnesses. The decision whether second/subsequent medical uses of pharmaceuticals are patentable in any given jurisdiction is, however, a policy decision to the extent that it is one of the main exclusions available to countries as a 'flexibility' under the World Trade Organization's Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement). The results of this study show that there is a wide variation in Asia regarding the patentability of second/subsequent uses, and examines the possible reasons for this variation. The paper concludes with recommendations for countries in the region.