By Gaurav Goyal and Anand Kamal, Students Symbiosis Law School, Pune
By the second half of the 19th century, many countries had recognized the value of the patent system as a tool for technological and economic development. This recognition was derived from the overhauling forces of increasing globalization, changing the structure of domestic market, making it open to the rest of the world and raising the bar of competitiveness. With competition on the rise, innovation and invention become the main tool to survive and thrive but without efficient patent policy, what can stop other people to abuse these inventions? With the aim of promoting and safeguarding the innovation and economic development, Patent regime in every country saw a drastic change. Its application became rigid, focusing on inventors right protection and their commercial exploitations.
At that point of time, there was no convention, treaty or norms set for international patent system, so at the national level countries adopted patent system at their own determination to provide protection to the inventors and promote economic development. But soon another question came in front i.e. What is there to protect invention of one person in another nation than its own?
Patent is granted by the government of one country and is applicable to the territorial sovereignty of that country only. But the flow of information is global, making it easy for other nations to exploit the hard work of another nations individual. Here comes the role of international patent regime, making the whole world a safe place for innovation and inventions.
In this research work, the author has explained the current multilateral framework at international level, supporting the patent system and tools for getting patent internationally will also be discussed.
INSTITUTIONS AND THE FRAMEWORKS:
Two main organization working for the IP protection at international platform is WTO & WIPO. In the year 1967, WIPO, member of UN organizations, was brought into life as a multi-faceted organization to provide services from a forum for Member States to negotiate international intellectual property treaties to assisting governments in using intellectual property, from providing education and skills training on all levels, to delivering commercial intellectual property services to the private sector. WIPO become a tool to develop a balanced and accessible international IP system, which rewards creativity, stimulates innovation and contributes to the economic, social and cultural development of all countries, while safeguarding the public interest. But WIPO was more of a advisory institution then executionary. It provided help and in times of conflict it provided suggestion, but when trade goes global and hundreds of crores of investment is at stake, what we need is much bigger and stronger then mere suggestion. With the advent of WTO in the year 1995, it was seen as the responsible one to strengthen the trade and commerce between the countries by strengthening the IPR regime. With this aim, The TRIPS agreement was passed to strengthen the IP regime on 1 January, 1995. Soon an agreement was reached between WTO & WIPO to consolidate their efforts towards IP protection and as a result WTO-WIPO cooperation agreement was reached on December 1995. Within the TRIPS agreement, treaties passed under WIPO are highlighted and obligation to comply with them is also enshrined.
Making TRIPS agreement the main outlook for IP enforcement while making other treaties under WIPO an obligation to follow for the member state, further backing up the effectiveness by the redressal system, punishment and compensation provisions provided within the TRIPS agreement make it possible to establish a stable global IP regime which promoted international IP trades and safeguarded the commerce activities by making it an obligation for the member state to comply with the provisions and in case of violation proper litigation to take place.
With all the frameworks and consolidating them to work in one direction, there were two main objective which the international IP regime has accomplished i.e.;
- Resemblance under domestic law of Different Countries
- Insertion of ‘National Treatment Principle’ & ‘Most favoured Nation Principle’
While filing for patent beyond the borders of one own country, the difference in the legal system between both the nation creates cascade of problems for the person filling the application. Difference in requirements for filling an application, difference in terms of protection, difference in duration of patent given, difference in time interval that the administration takes to file patent is what causes trouble, both financially and physically administrating it. With the enforcement of TRIPS agreement, compliances to the provisions contained within it has become compulsory for the member state, making it possible to make resemblance within the domestic laws of different countries in the matter crucial and centred while filling for patent.
Another question which can further be raised was; Although the laws resemble, what guarantees equal treatment between applicants of the same nation and applicants of other nation? For this reason, principle of National treatment and Most Favoured Nation principle was involved. As per the former, Country where an application for grant of patent is received from other nation, must treat them as they are the individual of their own country. As per the later principle, If a country provides special privilege to individual of one country, then that country must provide same privilege to the other nations too.
Looking from a border perspective, The organizations working together, treaties promoting compliance of each other, redressal mechanisms for dispute, all this thing make us believe that instituting application for patent cross-countries are now possible and effective too. But is it so?
Formalities to effectively apply for the patent and international tools making it easier and efficient is what we will be seeing further on.
INTERNATIONAL FILING AND PROCESSING SYSTEM:
- National & International Phase
Although the laws shows resemblances but still it is trouble some to apply individually at every nation patent office, filing the application, fulfilling requirements, etc. it is both time and cost consuming method. The introduction of PCT i.e. Patent Cooperation Treaty is what has made this procedure simpler. Under PCT, an applicant only needs to file one ‘International Patent Application’ which will have the effect as applying individually at the offices of all the member state. This is also known as the ‘International Phase’ under International filling and Processing. This phase will further include search by investigating officer who will then provide an International search report and on the request by the applicant, applicant can seek to obtain a positive patentability report. With the end of International Phase, The applicant enters into the National phase, and comes the role of PLT i.e. Patent Law Treaty. It aims at harmonizing the procedural requirements of national and regional patent system. At national phase, the applicant requires to submit the International report to every nations office in which he wants to apply by translating the report in their official language and submitting official fees. Ideally and generally, the decision taken by the national offices are often based on the International report submitted by the applicant which talks about the search conducted and patentability opinion of the search officer.
- Administrative Cooperation
While looking into the question of grant of patent, one of the most important work done by the patent authority is to check for the Prior Art. Checking for the prior art at international level can be a trouble and with the increase in number of application both in national and regional offices, this work is really getting impossible to cop with. Here comes the Agreement of 1971 i.e. The Strasbourg Agreement (of 1971) concerning the International Patent Classification which provides for a common classification for patents for invention. Classification of patent is the most valuable tool which searching for the prior art. The IPC provides approx. 70 thousand subdivisions including number of sections, classes, subclasses and groups. It is not complete record due to the reason that not all states uses it but still helps in the process to run smoother.
Another important treaty which needs to be discussed under the head of administrative cooperation is ‘The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure’. For the grant of patent for invention which involve microorganism, written discloser does not suffice, but can only be effected by depositing sample to a recognised institute or depository of the state. In order to eliminate the requirement of submitting the sample at each countries depository, This treaty helps in recognising “international depositary authority” suffices for the purposes of patent procedure before the national patent offices of all of the contracting States and before any regional patent office.
Ultimately, it could be said that the Institutions working together help brings the world within reach, reduces the major costs associated with international patent protection. Further the treaties such as TRIPS, Paris Convention, PCT, PLT, etc. helps creating strong patenting decisions. And it will be apposite to say that these multilateral tools are used today by the world’s major corporations, research institutions, universities & Individuals, when they seek international patent protection.