Globalization is a double-edged sword; creating opportunities for companies on one hand and jeopardising their innovation without a proper unified patent regime on the other hand.
There is an undeniable nexus between the phenomenon of globalization and the need for patent harmonization in the global economy. In order to understand their link, the term ‘patent harmonization’ needs to be understood first. Patent harmonization is that process where all the patent regimes of every country are intertwined and moulded in furtherance of a unified patent system, adhered by all, throughout the world. This process of unification of the patent laws of different countries is highly sought after by the international companies and firms who have their chains in different markets of the world. The reason for them seeking patent harmonization contains the explanation as to what sort of a link there is between globalization and patent harmonization.
Since the advent of globalization, various companies started operating in different spheres of the world, trade barriers started being dissolved and trade agreements started coming into place. All this worked in favour of the companies, except the non-conducive national patent laws of the countries in which they operated. The firms and companies had to apply and obtain for patents separately in every country they wished to get their inventions protected. For the bigger companies it was an easier task due to more capital in place with them, being a disadvantage to smaller companies and people who had established new start-ups and gained a quick international market access due to the assistance of the internet. In such circumstances, where the undesirability of the companies to plod into new markets was seen as a threat to globalization, the urgency to streamline the different patent regimes was seen as a priority. The succeeding sections of the article shall discuss the evolution of patent harmonization in the global economy and the areas where efforts of harmonization have been/are taking place.
EVOLUTION OF PATENT HARMONIZATION:
The Paris Convention applies to the protection of the industrial property that includes patents, trademarks, industrial designs and service marks, etc. The provisions of the Convention lay down the various rights and duties of the contracting States and the common rules regarding patents that need to be adhered to.
The Patent Cooperation Treaty of 1970 was concluded due to the urgent need to have a unified procedure for filing patent applications in order to protect the innovations in its contracting States.
Around the 1970s, the United States Patent and Trademark Office (USPTO), European Patent Office (EPO), and Japanese Patent Office (JPO) started stepping up in coordination and cooperation with each other in the light of the then-recently passed Patent Cooperation Treaty.
World Intellectual Property Organization’s Committee for Draft Treaty:
The World Intellectual Property Organization (WIPO) formed a committee that would look into the ‘Patent Harmonization Treaty’ and make the required changes to address the lacunae in the procedural and substantive areas of the patent laws. The end product was the Draft Treaty of 1990.
The Patent Law Treaty (PLT) was adopted in 2000 but came into force in 2005 with the core objective of harmonizing the procedures related to the national and regional patent applications and making them more lucid for the contracting parties.
CATEGORIZATION OF PATENT HARMONIZATION
Patent harmonization is a very generic term that includes various aspects of unifying variant patent systems in different parts of the world. This harmonization process can be divided into procedural part which deals with the forms and processes to file the patent applications and the substantive part that deals with the rules and regulations regarding granting of and administering patents.
Procedural harmonization basically focuses on the procedural aspects or the ‘tools’ through which patents can be obtained covering forms and procedures of patent application. These include unified filing date requirements, reference to previously filed applications, claiming priority to an earlier filed application, unity of invention, publication of pending applications, etc. The Patent Cooperation Treaty (PCT) is an apt example for a treaty dealing with procedural harmonization.
Substantive harmonization encompasses the adoption of a unified code of rules for the most important stipulations of patentability. These include the criteria which will determine whether a novel and useful invention has an industrial applicability and meets the condition of an ‘inventive step’ or ‘non-obviousness’, rules concerning the extent of public disclosure of the invention and by which parties is permissible, whether the first to invent or the first to file for patent application will be awarded the patents and whether ‘grace period’ will be allowed following the prior public disclosure of the invention. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deals with standards and rules of the intellectual property regulation covered under this aspect of harmonization.
Since the international community throughout the decades has garnered consensus on the fact that there is a need for harmonization in the patent laws of different countries of the world and to streamline them into identical laws, half the battle is already won. The only problem lies in the ‘deep harmonization’ of mostly substantive laws which is not an easy and inexpensive task. The only way out is to recognize the difficulties and formulate strategies that complement and supplement each other in creating a singular patent regime while striking a balance to not destroy or subdue the national patents laws of every country.