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The development of international patent law

INTRODUCTION

Patents are the oldest form of intellectual property and patent registration systems, in a form which is not dissimilar to what we have today. Patent began to emerge in Europe in the late middle ages and in Britain in the late 15th century .

Before the English registration system was in place, the English Crown began to grant protection and safe conduct to foreign craftsmen to enable them to practice their trade in England without from the local guilds. This was offered as an inducement for the trades’ men to settle in England and play a role in the development of local industry. The native cloth industry was one of the first to benefit from the intervention of the Crown . In effect the crown was granting franchise to foreign textile craftsmen to further develop the English industry.

The crown issued letters patent that provided any person with a “monopoly” for the production of particular goods for providing to particular services.
In the year 1449, the first of such letter was granted to a Flemish man by Henry IV for a monopoly of 20 years for his invention. The crown permitted “letters patents” meaning unsealed letters, granting monopolies to those persons favoured for their deeds. The letters patent where issued in respect of all types of common goods.
Public unrest, prompted James I to lift all the granted existing monopolies and declare that monopolies can be used only for new intervention projects. Gradually patent law in the UK developed system based on the Statue of Monopolies, which includes a combination of UK and European practices.

RATIONALES FOR A PATENT SYSTEM

PATENT CO OPERATION TREATY (1970) (PCT)

The Patent Co operation treaty (the PTC) formed the most comprehensive guide to international patent standards of its time with a membership in 2008 of over 138 members . The PCT offers a single application in which an applicant may seek patent protection for an invention simultaneously in each of a large number of countries by filing an “international” patent application. The application may be filed a resident or national of a PCT contracting State . It is common for the application to lodged with the national patent office of the contracting State. Alternatively an application may be lodged with the International Bureau of World Intellectual Property Organization (WIPO) in Geneva .

The filing of a PCT application automatically has the effect of the designation of all PCT contracting States. The effect of the international application in each designated State is the same as if a national patent application had been filed with the national patent office of that State.

The international application is subjected to what is called an “international search.” That search is carried out by one of the major patent offices [1] and results in an “international search report,” that is, a listing of the citations of published documents that might affect the patentability of the invention claimed in the international application. In addition, a preliminary and non binding, written opinion on whether the invention appears to meet the patentability criteria in light of the search report results is also issued.

The international search report and the written opinion are communicated to the applicant who, after evaluating their content, may decide to withdraw his application, in particular where the content of the report and opinion suggest that the granting of patents is unlikely, or he may decide to amend the claims in the application.
If the international application is not withdrawn, it is, together with the international search report, published by the International Bureau. The written opinion is not published at this time.

If the applicant decides to continue with the international application with a view to obtaining national (or regional) patents, he can, in relation to most contracting States, wait until the end of the thirtieth month from the priority date to commence the national procedure before each designated Office by furnishing a translation (where necessary) of the application into the official language of that Office, paying to it the necessary fees and acquiring the services of local patent agents.

If the applicant wishes to make amendments to the application, for example, in order to overcome documents identified in the search report and conclusions made in the written opinion, and to have the potential patentability of the “as amended” application reviewed, the optional international preliminary examination may be used. The result of the preliminary examination is an international preliminary report on patentability (IPRP Chapter II) which is prepared by one of the major patent offices [2] and which contains, once again, a preliminary and non binding opinion on the patentability of the claimed invention. It provides the applicant with an even stronger basis on which to evaluate his chances of obtaining patents, and, if the report is favorable, a stronger basis on which to continue with his application before the national and regional patent Offices.

The procedure under the PCT has great advantages for the applicant, the patent offices and the general public:

(i) applicants have up to 18 months more than if they had not used the PCT to reflect on the desirability of seeking protection in foreign countries, to appoint local patent agents in each foreign country, to prepare the necessary translations and to pay the national fees;
(ii) applicants can rest assured that, if their international application is in the form prescribed by the PCT, it cannot be rejected on formal grounds by any PCT contracting State patent Office during the national phase of the processing of the application;
(iii) on the basis of the international search report and the written opinion, applicants can evaluate with reasonable probability the chances of their invention being patented;
(iv) applicants have the possibility during the optional international preliminary examination to amend the international application and thus put it in order before processing by the various patent Offices;
(v) the search and examination work of patent Offices can be considerably reduced or eliminated thanks to the international search report, the written opinion and, where applicable, the international preliminary report on patentability which are communicated to the national and regional Offices together with the international application;
(vi) since each international application is published together with an international search report, third parties are in a better position to formulate a well founded opinion about the potential patentability of the claimed invention; and
(vii) for applicants, international publication puts the world on notice of their applications, which can be an effective means of advertising and looking for potential licensees.

THE PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY (1883)

Prior to any international convention it was difficult to obtain any protection for industrial property rights in the various countries of the world because of the diversity of their laws. Furthermore, patent applications had to be made roughly at the same time in all countries in order to avoid a publication in one country destroying the novelty of the invention in the other countries. These practical problems created a strong desire to overcome such difficulties .

The second half of the last century saw the rapid development of internationally trade and technology. The Austria Hungary Government reacted to the buoyant international trade by inviting a number of countries to Vienna in 1873 to participate in an international exhibition of inventions. However foreign inventors were not willing to exhibit their inventions because there was a lack of adequate legal protection. This signified the need for a urgent harmonization of international patent laws.
In 1873 a special Austrian law secured temporary protection to all foreigners participating in the exhibition. Further progress was made when the Congress of Vienna for Patent Reform was convened during the same year. The patent reform recommended a number of principles on which an effective and useful patent system should be based. The premise of the reforms was to present a harmonised understanding of international patent protection.

Following the Vienna Congress, an International Congress on Industrial Property was convened at Paris in 1878. This resulted in a draft proposal for the international union for the protection of industrial property. The French Government presented a number of countries with a draft copy of the convention and invited them to attend the 1880 International Conference in Paris. By 1883 11 states had signed the Convention with a further three countries joining in 1884. Whilst it has been revised from time to time the substantive provisions signed in 1883 are still the main features of the Paris Convention today.

242 WIPO Intellectual Property Handbook: Policy, Law and Use

Under the Convention there are three main categories, national treatment, common rules and right of priority.

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