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Are we moving towards global patenting?

Article Excerpt
Differences in patent law and practice worldwide affect how patents are obtained and enforced in various territories. This article focuses on the patent offices of three territories that dominate the world patenting arena: the European Patent Office, the US Patent & Trademark Office and the Japan Patent Office. Although some harmonization exists (and more efforts are being made in this direction), there are still differences in certain areas.

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Patents are an important tool for protecting innovative products, uses or processes intended for commercialization. A granted patent provides a limited monopoly, normally for up to 20 years from the filing date of a patent application, giving a patent owner the right to prevent other parties from making, stocking, selling, using or importing the patented invention without the patent owner's permission. A theoretical ideal for an innovator would be to obtain a patent in all countries of the world. However, patents must be sought and enforced in each territory where protection is desired because a global patent does not (yet) exist. For cost reasons, a decision is usually made as to where to file and process patent applications.

A common patenting strategy is to file an international patent application under the Patent Co-operation Treaty (PCT) within 12 months of filing a first patent application at the applicant's national patent office. Filing an international patent application allows the patent applicant to delay filing separate patent applications in each territory (country or region) where protection will be sought in any of the current 141 PCT states until 30 or 31 months from the priority application filing date. However, differences in patent law and practice worldwide impact not only how patents may be obtained, but also the scope of protection they afford. How then can a single patent application, such as a PCT application, be used successfully to obtain a valid patent in different territories? I'll return to this question after reviewing certain...

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