One worldwide patent system: What's in it for developing countries?

Third World Quarterly

Volumn 31, Issue 2, 2010, Pages 277-293

  Tvedt, Mortenw Walløe ^a  

^a FRIDTJOF NANSEN INSTITUTE   (Norway)

Author keywords

[No Author keywords available]

Indexed keywords

DEVELOPING WORLD; GLOBALIZATION; INTELLECTUAL PROPERTY RIGHTS; MULTINATIONAL ENTERPRISE; RESEARCH AND DEVELOPMENT; TECHNOLOGICAL DEVELOPMENT;

EID: 77951443243     PISSN: 01436597     EISSN: 13602241     Source Type: Journal    
DOI: 10.1080/01436591003711991     Document Type: Article

References (69)

1. In practical terms there are several options for establishing a system for granting Worldwide Patents. The Universal Bureau could be partly centralised and partly distributed among a number of nations. Currently the Patent Cooperation Treaty that establishes a global system for international prior art could search where a number of national patent offices carry out work in prior art investigation, but with the decision to grant the individual patent left to national patent offices. The decentralised search model could be kept, whereas the grant of the patent could be done by a centralised Universal Bureau. The following 14 patent offices are carrying out international prior art search today: Austrian Patent Office.
2. IP Australia.
3. National Institute of Industrial Property (Brazil).
4. Canadian Intellectual Property Office.
5. State Intellectual Property Office of the People's Republic of China.
6. European Patent Office.
7. National Board of Patents and Registrations of Finland.
8. Japan Patent Office.
9. Korean Intellectual Property Office.
10. Federal Service for Intellectual Property, Patents and Trademarks (Russian Federation).
11. Spanish Patent and Trademark Office.
12. Swedish Patent and Registration Office.
13. United States Patent and Trademark Office.
14. Nordic Patent Institute.
15. In Europe the European Patent Organisation has such a competence for its 36 member states.
16. The European Union has certain features that indicate such supranational competence, but these rules do not apply globally, only for the region encompassed by the EU.
17. MAkehurst, Akehurst'sModern Introduction to International Law, New York: Routledge, 1997, pp 17-18.
18. I Brownlie, Principles of Public International Law, New York: Oxford University Press, 2003, pp 287-289.
19. A Cassese, International Law, New York, Oxford University Press, 2001 pp 88-91.
20. MN Shaw, International Law, Cambridge: Cambridge University Press, 2003, chs 12, 13.
21. MW Tvedt, 'The path to one universal patent', Environmental Policy and Law, 37(4), 2007, pp 303-304.
22. G Dutfield, 'Is the world ready for substantive patent law harmonisation?', in P Drahos (ed), Death of Patents, London: Queen Mary Intellectual Property Institute, 2005, pp 228-249.
23. JH Barton, 'A world patent system', paper prepared for a conference at Duke University School of Law, 4-6 April 2003.
24. Barton, 'A world patent system'.
25. Dutfield, 'Is the world ready for substantive patent law harmonisation?', p 249.
26. Document SCP/12/3, which was the main document from the WIPO Secretariat to the SCP at its 12th meeting in 2008.
27. SCP/12/3, paragraph 268 onwards discusses 'threats to an effective and eficient patent system'.
28. WIPO, World Intellectual Property Indicators, Geneva, 2009, p 14.
29. Patent Cooperation Treaty of 19 June 1970, last modified 3 October 2001, with the supplementing Regulations under the Patent Cooperation Treaty of 1 January 2004 (142 contracting parties), at http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/pct.pdf, accessed 17 March 2010.
30. Patent Law Treaty adopted at Geneva on 1 June 2000 (18 contracting parties), at http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=4, accessed 18 December 2008, with the supplementing Regulations under the Patent Law Treaty, adopted the same date.
31. The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, 28 April 1977, amended 26 September 1980.
32. The Regulations Under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, adopted 28 April 1977 and amended 20 January 1981 and 1 October 2002 (72 contracting parties), at http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/budapest.pdf, accessed 17 March 2010.
33. FM Abbott, T Cottier & F Gurry, International Intellectual Property in an Integrated World Economy, New York: Aspen Publishers, 2007, p 221, mention the 'first to file' and the 'first to invent' controversy as a major issue to be solved in the SCP.
34. The International Bureau of WIPO provides, according to Patent Cooperation Treaty Article 1, the service of: 'filing, searching, and examination, of applications for the protection of inventions, and for rendering special technical services'. PCT Article 16 reads: 'The International Searching Authority (1) International search shall be carried out by an International Searching Authority, which may be either a national Office or an intergovernmental organisation, such as the International Patent Institute, whose tasks include the establishing of documentary search reports on prior art with respect to inventions which are the subject of applications.'
35. A system for review or revocation of granted patents does not necessarily have to be fully harmonized at the global level and may be referred to national law.
36. Tvedt, 'The path to one universal patent', pp 298-301.
37. Beyond the pre-grant issues there is also a compilation of the exclusions from patentable subject matter (according to the discretion under Article 27.2 and 27.3 of the TRIPS Agreement) and the exceptions and limitations to the patent rights (according to the discretion under Article 30 of the TRIPS Agreement).
38. The list of supporting countries changes from meeting to meeting. Chile, China, India, Malaysia, Mexico, Morocco and the Russian Federation associated themselves with the Casablanca Declaration.
39. See Annex to document SCP/11/3. Chile and India later opposed to this approach at the 11th meeting of the SCP.
40. See, for example, the statement from the group 'Friends of Development', which consists of Argentina, Brazil, Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela, in document SCP/11/4.
41. See, for example, the proposal in the Annex to SCP/11/3, 'These [six] issues should be addressed in parallel, accelerated processes, the first four issues (prior art, grace period, novelty and inventive step) in the SCP and the other two issues (suficiency of disclosure and genetic resources) in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (ICG).'
42. Statement from the 'Friends of Development' referred to in SCP/11/5: 'clauses on public interest flexibilities, transfer of technology, curbing of anticompetitive practices and biodiversity (disclosure of origin).'
43. SCP/12/5 Prov. Paragraph 124c of the decision.
44. SCP/12/5 Prov. Paragraph 124b of the decision: 'The Committee decided that the non-exhaustive list of issues identified during this session would remain open for further elaboration and discussion at the next session of the SCP'.
45. DS Chisum, CA Nard, HF Schwartz, U.S. Circuit Judge, P Newman & FS Kie., Principles of Patent Law, New York: Foundation Press, 1998.
46. SCP/12/3, paragraph 56, with further references.
47. WIPO, World Intellectual Property Indicators, p 8.
48. WIPO, World Intellectual Property Indicators, pp 17, 20.
49. Ibid, p 8.
50. SCP/12/3, p 13.
51. Article 13 (3) Draft SPLT, SCP/10/4 p 25.
52. Unless otherwise indicated, quoted items from the draft SPLT or from the draft Regulation in square brackets indicate that the expression is not yet agreed to in the negotiations. Thus, these square brackets indicate the lack of international consensus in SCP, not that quotations are made more extensive for the purpose of this article.
53. Article 13 (4) Draft SPLT, SCP/10/4 p. 25: '[Compliance With Applicable Law on Other Matters] A Contracting Party may also require compliance with the applicable law on public health, nutrition, ethics in scientific research, environment, access to genetic resources, protection of traditional knowledge and other areas of public interest in sectors of vital importance for their social, economic and technological development.' For a detailed analysis,
54. See MW Tvedt, 'How will a substantive patent law treaty affect the public domain for genetic resources and biological material?', Journal of World Intellectual Property, 8(3), 2005, pp 311-344.
55. C Correa, The WIPO Draft Substantive Patent Law Treaty: A Review of Selected Provisions, Working Papers 17, Geneva: South Centre, 2004, at http://www.southcentre.org/index.php?option=com_content&task=view&id=77&Itemid=67, accessed 30 June 2009.
56. MW Tvedt, 'Elements for legislation in user country to meet the fair and equitable benefit-sharing commitment', Journal of World Intellectual Property, 9(2), 2006, pp 189-212.
57. MW Tvedt & TR Young, Beyond Access-A Legal Analysis of the Fair and Equitable Benefit Sharing Commitment in the CBD, Bonn: IUCN, 2007, pp 34-35.
58. Article 12 (1) (b) (i), SCP/10/4, p 22.
59. For a thorough analysis of the changes of the legal notion of invention and discoveries in Europe and the USA, see L Westerlund, Biotech Patents-Equivalency and Exclusions under European and US Patent Law, Stockholm: Faculty of Law, Stockholm University, 2001, pp 31-76.
60. Article 8 (1), SCP/10/4, p 15.
61. Rule 8 (1), SCP/10/5, p 15.
62. Rule 8 (2) (a) Draft SPLT Regulations, SCP/10/5, p 15, emphasis added.
63. Rule 14 (2) Draft SPLT Regulations, SCP/10/5, p 27.
64. NP de Carvalho, The TRIPS Regime of Patent Rights, The Hague: Kluwer Law International, 2005, p 64.
65. 35 USC x 102(a).
66. JH Blakeney, 'A critical analysis of the TRIPS Agreement', in MP Pugatch (ed), The Intellectual Property Debate: Perspectives from Law, Economics and Political Economy, Cheltenham: Edward Elgar, 2006, p 22.
67. Notes that the increased income for the USA alone was $19 billion per annum and that 'In 1999 the World Bank estimated a net outflow from developing countries of $7.5 billion on royalties and licence fees'.
68. de Carvalho, The TRIPS Regime of Patent Rights, p 56.
69. D Lippoldt, 'Can stronger intellectual property rights boost trade, foreign direct investment and licensing in developing countries?', in Pugatch, The Intellectual Property Debate, pp 44-61, discusses developing countries and patent protection.