I. Introduction

As one part of the subject matter of Intellectual Property Law (hereinafter IP), patent is mostly referred as “hard IP” as opposed to “soft IP” which is used to refer copyright, trademark, trade secret and other form of protection. Patent law maintains the lion’s share in the discussion of the subject matter of IP.

Any jurisdiction that tries to govern the patent regime primarily defines the statutory subject matter and provides what should and should not be patented. Under the United States (US) patent system, Section of the Patent Act  provides “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” While this provision clearly instructs what to take before the United States Patent and Trademark Office (USPTO) claiming patent protection, the US Supreme Court in the Bensoncase  has provided categories which are not patent-able subject matter, these include; natural phenomenon, laws of nature, abstract ideas, and mathematical algorithms.

The main purpose of the law to confer the patentable and non-patentable subject matter is because, patent protection grants a monopoly right excluding the invention from the public domain. This paper mainly focuses on the issue of patentability of computer programs (software). The emergence of the idea of software patent in ’s and early ’s invites scientists and legal scholars to the discussion table and led to variety of arguments in favor and against of this concept.

In this paper, the writer primarily addresses the theoretical basis for software patent, and discusses the selected arguments in favor of and against the protection thereof. Then, briefly discuss the likely impact of excluding software patent on other fields of technology as well economic development at large.

Abstract

As a country dealing with a pending WTO accession procedures, Ethiopia is required / expected to go through different legal reforms in order to have WTO-compliant domestic laws. Inter alia, the country specifically needs to review its intellectual property laws to provide a protection for intellectual properties as envisaged under the rule of WTO. However, adopting WTO-compliant rules to protect intellectual property, especially patent, exhibits a cross-road of patent protection and access to patented invention such as pharmaceuticals. It is logical to think that strong patent protection highly challenges an eased public access to the patented invention since the very nature of patent provides a stronger exclusive right to the right holder. To systematically deal with the issue of balancing patent protection to right holders and access to medicine to the public, different countries successfully reformed their laws to facilitate access to medicine while still adhering to WTO’s rules on patent. Thus, scrutinizing areas of reforms under Ethiopian patent law, in order to facilitate access to medicine before joining WTO, would help the country to adopt WTO-compliant rules which exhaustively addresses / exploits all exceptions, flexibilities and legal loopholes available to facilitate access to medicine.

Part One - Introductory Remarks

Before rushing into examining or establishing the details of Ethiopian patent law with regard to its role on facilitating access to pharmaceuticals, it would be helpful to shortly point out the relationship between patent and access to patented innovations in general. Lately, literatures seem to show / define that intellectual properties, especially patentable innovations, and public demand to access patented inventions, as two competing interest (“Monopoly” and “Access”) which hinges on a balance.