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Patent harmonisation - the holy grail

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From the perspective of an outsider – which is what I was 5 years ago – the world’s patents system looks on the face of it rather strange – critics might even say dysfunctional.

Even focussing just on the developed world, some 50 or 60 countries all have IP offices performing the same functions often in relation to the same inventions.

From the customer’s point of view, they need to have their patent application examined multiple times against broadly similar criteria. This without any certainty that they will get the same result. Does that describe an efficient and effective system for the customer? Or good use of valuable examination resource for qualified scientists and engineers?

Technical differences

Then just to spice things up further, different countries have introduced helpful individual tweaks.  This might mean, for instance, that you can get a patent for software more easily in the US than in Europe. But it also means you have to navigate a number of “technical” differences which can trip you up along your global journey. Then there are the different judicial systems under which you might actually enforce your patent or challenge someone you believe is infringing it.

Of course, Governments and IP offices have done quite a few things to address some of these problems. Probably one of the most significant is the international treaty which set up a single “post box” for businesses wanting patent protection across the world – the Patent Cooperation Treaty (PCT). A UK priority is to get this system working to its full potential so that as much of the work as possible is done once rather than 50 times or more.
We’ve also been a leader in other initiatives to cut duplication and speed up case handling. Most notably a multilateral arrangement called the Global Patent Prosecution Highway.  This prioritises cases where patents have already been granted by another Office.

Image licensed by Ingram Image.
Image licensed by Ingram Image.

Regional initiatives

Regional initiatives, such as the European Patent Office (EPO) and newer initiatives in South America and SE Asia are also making a big difference. Collaboration between the big 5 Offices – US, EPO, Japan, China and Korea - is gathering momentum.

But there’s plenty of scope to do more. When we read that the Chinese Government has a target to triple Chinese patent filings – already the largest in the world - by 2020, action is essential. Otherwise we are likely to see the world’s patent systems collapsing under their own weight before too long.

There is an interesting debate to be had about the relationship between levels of patent filings and innovation. But leaving that for another day, we can and must work to improve the way the system operates. In many ways harmonisation of patent law is the most difficult area to make progress in. It requires every participant to be prepared to change their domestic law, handle domestic stakeholders, navigate through Parliaments and so forth. Recent attempts to agree a package of changes have foundered in the face of these challenges.

But over the last 12 months we’ve seen renewed impetus to agree a set of changes which could make things easier for businesses and Offices. Progress has included issues such as the circumstances in which you can publish details of your invention and still get a patent for it (the so called grace period). This can be important especially for academics or businesses less familiar with the patent system.

Partly this has been driven by business organisations rather than Governments.  This is important as it demonstrates that there is real demand for change. US, Japanese and European business organisations have been active. But ultimately this will only happen if Governments sign up.

The challenge

The challenge is to find the right forum for Governments to discuss these issues. It must combine the right technical expertise but also the ability to see the big picture. It also requires the political momentum necessary to make change.  Currently a group of countries (the so called B+ Group) is trying to make progress. I’m the chairman of this Group. It's a fascinating test of international diplomacy trying to find solutions for all the IP offices worldwide.

Watch out for more over the months to come and if you have views on where we should focus our efforts let me know.

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