In Part 2, I described the philosophy and current status of the PCT (Patent Cooperation Treaty), especially from the perspective of the international search system. Here, I will address the importance of the “patent harmonization” discussion that has had to gradually converge, due to various circumstances and while being discussed heatedly for a long time at the WIPO.
The “Patent Harmonization” discussion seeks to coordinate the patent system between countries as much as possible on the premise of each country’s legal system being based on territorial principle. Note, therefore, that it is not a move to automatically unify the legislation of each country.
The starting point for the discussion is to avoid situations of “an invention patented in one country and not in another country”, and to create a patent system that is easy for inventors and right holders to use internationally. The basic idea is to be “user-friendly”, which is the same as the spirit of PCT.
Again, the discussion of “patent harmonization” does not aim for the global “Unification” of the patent system or its global “Standardization”. The difference from the PCT is that the PCT creates the concept of an “international stage” without any involvement in the differences in domestic legislation of each country, and creates a unified international procedure scheme until entering the domestic examination stage. The patent harmonization discussion, on the other hand, goes one step further and seeks to reconcile the differences in domestic legislation between countries.
That is, even if an international application is filed using the PCT and then enters the national stage of various countries, the examination in each country is carried out according to the the law, examination standards and guidelines of each country’s patent office. Although many laws are common across countries nowadays, there are still differences in the legal systems and, of course, the actual operation of the law differs from country to country.
As a result, the situation that “an invention was patented in one country but not in another” still occurs as of 2021. The “patent harmonization” movement is to overcome this situation: a problem that we patent attorneys make efforts to overcome every day. Therefore, the discussion of “patent harmonization” remains important today.
Regarding the rise and fall of “patent harmonization” discussions in WIPO, not only are there transitions in issues in the specialized field of patents, but also among developed and developing countries such as are often seen in international conferences and discussions in recent years like the recent COP 26. There were various issues such as the challenges of the world’s industrial structure, the pros and cons of how to proceed with discussions at international conferences, and the nature of the international organization itself. These points are expressed internationally in the discussions.
Originally, the discussions on “patent harmonization” was actively discussed among the patent offices of Japan, the United States, and Europe. These are developed countries, and, of course, the patent system was most useful and relevant for industrialized countries as opposed to non – industrialized countries.
On the other hand, the number of developed countries is overwhelmingly smaller than the number of developing countries. In such an international situation, when WIPO, which is a specialized agency of the United Nations, holds an international conference, it will issue invitations to all member states – 185 member states as of this year – including developed and developing countries.
In the early stages, many developing countries did not attend “Patent Harmonization” meetings when invited by the WIPO because it was not directly related to their own interests. However, when the discussion the “Substantive Patent Law Treaty” (SPLT) commenced, they all started attending the meetings. (SPLT includes the substantive patent requirements i.e. novelty and inventive step and so on.) The reason was the perception that if the treaty required only developed countries to have a high level of patent standards, it would be necessary to revise the patent laws of their own countries. Developing countries thought that there was the possibility that developed counties would obtain many patents in developing countries based on the treaty, and this would demand greater patent governance.
The above perception and concerns however have no true basis. Still, the many international political factors due have great influence on such concerns, and gradually developing countries are working closely with each other in WIPO conference rooms and outside of WIPO.
There was a movement to oppose the discussion of patent harmonization itself, and it came to the point of attending meetings to delay or prevent the discussion of patent harmonization. The meetings were about the highly specialized field of “patents”: most of the attendees from developed countries were patent practitioners such as PTO examiners, patent attorneys, and attorneys – at – law. On the other hand, the attendees from the developing countries were mostly diplomats not having the knowledge patents but having the power of political discussion and influence.
Therefore, the meetings were suddenly faced with international political dynamics, the “South- North problem”, etc. As a result, the discussion was completely stopped. This is the tragedy of the patent harmonization discussion.
Not surprisingly, most of the attendees, including myself, were very surprised at this process. It reaffirmed the reality of the international political situation and the differences in the industrial structure between developed and developing countries,.
In summary, we have no choice but to think about “How the patent system in the world should be, and for whom the patent system exists”. We can now understand the importance of the “Patent Harmonization” discussion.
In future articles we will trace precisely the history of patent harmonization, focusing on discussions at WIPO. For past and future articles, please visit our Resources page.