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International patent law or patent law harmonization refers to the initiatives taken to implement standardization and alignment of patent laws and regulations across multiple countries. It is seen as a cooperative action by states to better provide an international public good—patent law—to their citizens.
The goal of these efforts is to create a consistent and cohesive international framework that enables easier and efficient patent trade. Moreover, weak patent protection laws in some nations can lead to piracy, resulting in significant losses for companies.
However, it is often difficult to persuade an entire nation to alter its intellectual property laws to protect the assets of an international trading partner.
History of Patent Law Harmonization
The origins of patent law harmonization can be traced back to the establishment of the Paris Convention for the Protection of Industrial Property in 1883. Around 100 years later, in 1983, discussions began on the legal effects of an international grace period on patent law.
The evolution of patent law harmonization began with the expansion of the Paris Convention’s work, eventually leading to the drafting of a treaty supplement. Despite the unsuccessful 1991 Diplomatic Conference, some provisions from the proposed treaty found their way into the TRIPS Agreement in 1994. Unresolved issues include aspects such as novelty and inventive steps.
In 1995, WIPO discussions shifted to formalities, resulting in the adoption of the Patent Law Treaty (PLT) in 2000, focusing on harmonizing and streamlining formal procedures for national and regional patent applications.
In 2000, recognizing the need for substantive patent law harmonization, WIPO’s Standing Committee on the Law of Patents (SCP) initiated work on a Substantive Patent Law Treaty (SPLT). However, differing views among WIPO Member States led to a halt in negotiations in 2006.
To this day, many organizations are making constant efforts to realize the idea of an international and unified patent law that helps all parties transact with ease on a multi-national level.
The Benefits of Patent Law Harmonization
Patent law harmonization has certain proven benefits that help accentuate international trade. Let us dive deeper into them and explore some more advantages born out of this initiative depending on the geographical region it is implemented:
- First-to-file system
The most important aspect of patent harmonization in the US and some other global regions revolves around the adoption of the first-to-file system in place of the first-to-invent system. This system is considered superior and poses a minimal threat to investor interests. The US has now adopted it already.
The first-to-file system greatly diminishes the cost of the patenting process, making it exceptionally beneficial for smaller companies and independent investors, curbing the inherent disadvantage in interference proceedings against large corporations, as a simple comparison of filing dates will end any question of priority.
- Easier settlement of patent disputes
Patent law harmonization can simplify the resolution of disputes. Inconsistencies in patent laws can lead to disputes and litigation. Harmonization helps you reduce the chances of conflicts by establishing a common framework that minimizes ambiguity and differences in interpretation, and patent filing dates.
- International collaboration and accelerated innovation
A harmonized patent system facilitates international cooperation and collaboration in research and development. It encourages companies and inventors to share knowledge and work together. It also makes working together much easier as it provides a standardized framework for patent trade and knowledge transfer.
- Cost-effectiveness
With consistent patent laws, inventors and companies don’t have to navigate through complex and often unknown foreign legal systems when seeking protection for their inventions in diverse jurisdictions. This reduces redundancy in the application process and lowers associated legal costs drastically.
- International trade benefits
When intellectual property rights receive a predictable and adequate amount of protection, the companies holding those rights will be more comfortable entering the patent marketplace. Securing intellectual property in a standardized manner facilitates trade by providing a formulaic environment, rife for business.
The benefits don’t end here. You can look at different benefits depending on your location, whether it be the US, Europe, or a developing country.
The Challenges of Patent Law Harmonization
While Patent law harmonization brings multiple benefits, certain aspects can often hold it back. Let’s look at them:
- Inherent national conflicts
There is a conflict between the rights of inventors and the public interest in promoting technological and economic development at the national level. National governments seek to control their patent systems to influence technological and economic advancements within their own countries. Knowledge sharing can also be seen as knowledge leakage by some state bodies. Thus, not all nations are on board with patent law harmonization, fearing economic drain.
- Piracy concerns from developed nations towards developing nations
Piracy of intellectual property, particularly in third-world countries, creates conflicts between the rights of intellectual property owners in developed nations and the economic goals of developing nations. Bridging this gap is a complex challenge for patent harmonization. National patent grants are valid and enforceable only within the territorial boundaries of the granting nation. Without international treaties, nations lack the power to enforce patents beyond their borders. This can render patents less effective, especially in developing countries, leading to rampant piracy.
- Patent law diversity challenges
Inconsistencies among the patent laws of different countries pose a significant obstacle to harmonization. Variances in definitions of patentable subject matter, application procedures, examination processes, and remedies contribute to an increased complexity which increases the difficulty for harmonization to occur.
- First-to-File Issue
Differences in the first-to-file versus first-to-invent systems create potential conflicts, where different parties may be awarded patents for the same invention in different countries. The United States follows a first-to-invent system, while most other countries operate on a first-to-file basis.
These challenges underscore the multifaceted nature of the obstacles that must be addressed to achieve effective patent law harmonization.
Emerging Trends and Technologies
The world is becoming “flatter” each year and so the time is rife for the harmonization process to begin given the emergence of new technological marvels that are facilitating a streamlined knowledge transfer system. The advent of globally prevalent technologies like Artificial Intelligence, Blockchain, and the Internet of Things, have made it even simpler to transfer knowledge.
Blockchain, being a widely embraced emerging technology, boasts several valuable features, including tamper-proofing, distributed data management, timestamping, asymmetric encryption, and the capability for smart contracts. This system incorporates functionalities for patent registration and storage, patent trading, safeguarding user privacy throughout the patent registration and trading processes and maintaining comprehensive control over data access.
While IP laws for IoT are advancing, there is a lack of established principles, leading to potential governance challenges. Interest in patenting for IoT technologies is on the rise but there are some problems associated with it. Patenting IoT technologies may result in costly litigations, especially in licensing and cross-licensing disputes. Balancing the protection of rights and ensuring interoperability poses a significant legal and technological hurdle. Additionally, the extensive data involved in IoT is vulnerable to security risks like cyber-terrorism and bullying. To address this, companies must advance data handling technologies and implement robust security measures to safeguard users from potential harm.
This will inevitably force the stakeholders to move towards a more unified patent search and protective system. A global solution to IP will immediately curb all the negatives.
The same rings true in the AI world, which is also developing at a rapid pace. This is evident from the fact that 40% of all AI-related patents studied showed a growth rate of 28% per year on average from 2013 to 2016.
Patent law harmonization may come up as a balanced patent system, there will be a need to understand the existing patent data from various jurisdictions. Now this is where patent searching and analysis tools will be playing a crucial role.
The benefits that patent law harmonization will bring are undeniable. While there may be a few obstacles to overcome, many of these challenges stem from the lack of uniformity that has persisted over the years. Implementing a uniform intellectual property protection system on a global scale will simplify the process of patent research and prosecution.
It is not surprising that global authorities are discussing meaningful and comprehensive measures to establish this unified system.
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