Against Intellectual Monopoly

the Chemical Industry in a memorandum to the
Reichstag.10 The association points out that the same chemical product can
be obtained by different processes and methods, and even by starting from
initially different materials and components. Hence, there is social value
in patenting a new process, as it rewards the innovator without preventing
further innovation. There is negative social value in patenting a specific
product, as this would exclude all others from producing it, even through
different processes. It should be noted, though, that this did not prevent
German chemical companies from patenting their products where possible,
in the United Kingdom and the United States especially."

    In France, under a law of July 5, 1844, pharmaceutical inventions could
not be patented. Legislation then evolved to keep the prohibition for patenting products but to allow patents for processes. The executive order of
February 4, 1959, and then the law of January 2, 1966, finally introduced
limited patents for pharmaceutical products in France; the ban on patenting
drugs was completely lifted only in 1978. In Germany, the law of May 25,
1877, introduced patents for both chemical and pharmaceutical processes,
but products were explicitly excluded. The law of April 4, 1891, extended
patent protection to products obtained via a patented process. Finally, the
law of September 4, 1967, introduced general patentability of chemical and
pharmaceutical products also in Germany.
    In Switzerland, patents for chemical and pharmaceutical products were
explicitly prohibited by the Swiss constitution. The Swiss pharmaceutical
industry, whose strength does not need to be recalled, has, however, been a
historically important competitor for the German pharmaceutical industry.
Constant German pressure, both political and legal, eventually led to the
adoption of patents for chemical processes with the Swiss law of June 21,
1907, which was nevertheless quite restrictive. The law of June 25, 1954,
continued to apply only to processes but extended the length of patents from
ten to eighteen years. Patents for products were introduced in Switzerland
only in 1977.
    In Italy, pharmaceutical patents were prohibited until 1978, when the
Supreme Court ruled in favor of eighteen pharmaceutical companies, all
foreign, requesting the enforcement of foreign patents on medical products in Italy. Despite this complete lack of any patent protection, Italy had
developed a strong pharmaceutical industry: by the end of the 1970s, it was
the fifth-largest world producer of pharmaceuticals and the seventh-largest
exporter.

    In Spain, the Ley de Patentes introduced patents for products in 1986,
as a consequence of the country's entrance in the European Economic
Community. The law began to be applied only in 1992. Before that date,
regulations dating back to 1931 explicitly prohibited the patenting of any
substance and, particularly, of any pharmaceutical substance. Patenting of
processes was instead allowed.'2
    Pharmaceuticals are also covered by a variety of international agreements.
The contemporary era of patenting began with the Convention of the Union
of Paris in 1883 following the Vienna Conference of 1873. More recently,
the Patent Cooperation Treaty was signed in Washington on June 19, 1970,
which started a process of international extension of stronger patent protection for medical products. The Munich Convention of October 3, 1973,
implemented on October 7, 1978, defines the notion of a European patent.
Further revisions and modifications of the original basic agreement led,
eventually, to the definition of the Community Patent Convention, which
was signed in Luxembourg on December 15, 1975. The latter was not ratified by various countries (Denmark, Ireland, Greece, Portugal, and Spain)
and the overall project eventually failed.
    Nevertheless, the core idea of a unified European patent system was
not abandoned and continued to be pursued in various forms, first under
the leadership of the European Commission and then under that of the
European Union. In 2000, the Community Patent Regulation proposal was
approved, which was considered a major step toward the final establishment of a European patent. Things, nevertheless, did not proceed as expeditiously as the supporters of a European patent had expected. As of 2007,
the project is still, in the words of European Union Commissioner Charlie
McCreevy, "stuck in