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Patents around the world
It is a long way from the first modern patent granted in Venice, Italy, in 1474, to the latest IT gadgets filed with the Indian Patent Office. Despite aims to harmonise legal proceedings to bring patent offices across the world closer together, the global landscape of patents remains multi-faceted.
While the "big three" - the European Patent Office, the United States Patent and Trademark Office and the Japan Patent Office (known collectively as the Trilateral Offices) - have dominated the global patent landscape in the past, other offices in rapidly growing economies such as India and China are catching up.
With the growing number of applications across the globe, one particular challenge affects every patent office: In today's increasingly globalised world, cooperation will become more important in the quest to tackle the ever-increasing workload.
The Trilateral Offices:
The European Patent Office (EPO):
Established in 1977 by the European Patent Convention (EPC) with the aim of creating a centralised patent application and grant system on behalf of all contracting states, the EPO's mission is to support innovation, competitiveness and economic growth for the benefit of the citizens of Europe. As of March 2007, the EPC has effect in 32 European countries, including all European Union member states - a market of nearly 600 million people.
The EPO examines and grants "European patents" which, subject to formal requirements, then acquire the same status and influence as national patents under the national laws of such EPC contracting states as the applicant designates.
At the end of 2006, the EPO had a total of 6 500 staff members, with roughly 3 500 examiners. Patent applications to the EPO have increased steadily in recent years; the number of total filings rising from 181 000 in 2004 to roughly 208 000 in 2006.
The United States Patent and Trademark Office (USPTO):
Rooted in the 200-year-old writings of the U.S. Constitution, the USPTO was established "to promote the progress of science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
The largest patent office in the world, the USPTO has around
7 300 employees, nearly all of whom are based in Alexandria, Virginia.
Of those, about 3 000 are patent examiners and 400 are trademark examining
attorneys, with the rest made up of support staff. The total number of
applications per year to the USPTO has grown from roughly 250 000 in 2000 to
over 400 000 in 2006.
Japan Patent Office (JPO):
Since former Japanese Prime Minister Junichiro Koizumi spoke in February 2002 about the importance of intellectual property, the Japanese government has intensified its efforts towards the realisation of a "nation built on intellectual property".
The JPO, a federal agency, has a staff of 2 651 (1,358 examiners), and a yearly budget of roughly EUR 800 million. The annual number of patent applications filed in Japan has remained steady at more than 400 000 since 1998.
Key differences:
While the technical cooperation between the Trilateral Offices is among the closest in the world, there still remain several differences, mostly rooted in diverging legal and cultural approaches.
First-to-file vs. first-to-invent
Virtually every patent office in the world (including the EPO and the JPO) is based on a first-to-file system. Under such a system, entitlement in the case of competing applications by independent inventors is established on the basis of the filing or priority date of the application, regardless of the date of actual invention.
The USPTO, however, is the only office to be based on a first-to-invent system, meaning that a patent is granted to the person who first conceived and practiced the invention, rather than to the person who first filed the invention with authorities.
There are pros and cons to both systems: The first-to-file system is based on an objective criterion which can be easily determined on the face of the documents without recourse to extraneous evidence and without costs. This leads to procedural certainty as the filing date of an application can very rarely be challenged. The process is in sharp contrast to the expensive and time-consuming examinations that occur at the USPTO when challenges to a patent arise. Critics say, however, that the first-to-file system tends to benefit larger companies who can afford to file patent applications rapidly, as opposed to individual inventors with few resources.
Different number of applications:
The USPTO and the JPO have to tackle significantly more applications than the EPO - not necessarily due to market differences but often because of differing standards and proceedings.
In the United States "everything man makes under the sun can be patented". And indeed, even business methods and software (the USPTO, unlike the EPO, does not require its patents to have a technical effect), have added to the growing number of applications across the Atlantic. Also, inventors in the United States are able to file successor applications to a pending application to update with any improvements made by the inventor.
In Japan, which is battling with an ever-increasing backlog, the unity of an invention is tackled differently than in Europe: While the EPO grants only one patent for any given inventive system, the same invention in Japan could constitute up to10 different patents, with every technological aspect of the invention filed independently.
The Backlog problem:
The JPO and the USPTO have been hit hardest by an increasing influx of patent applications. For over 30 years, the Japan Patent Office has been known for its slow patent examination, with applicants often waiting around 30 months to receive a first examination letter from the JPO.
The Japanese backlog increased substantially from 522 000 in 2003 to 755 000 in 2005. To slow the trend, the JPO has revised some of its procedures and is expanding outsourcing (in 2005, 75 percent of the workload was outsourced). It is also implementing a plan to recruit 500 more examiners over a period of five years.
The USPTO has also been criticised for taking an inordinate amount of time in examining patent applications. This is particularly true in the fast growing area of business method patents.
As of 2005, patent examiners in the business method area were still examining patent applications filed as early as 2001. The U.S. backlog has piled up to 590 000 as of 2005. To avoid falling behind even further, the USPTO has embarked on an ambitious staff expansion program: It expects to continue hiring patent examiners at a rate of at least 1 000 per year until 2011. The U.S. plan also includes several other initiatives to ease the workload such as outsourcing to external firms, accepting searches done by other national patent offices, and encouraging inventors to submit searches as part of an application in exchange for a reduced fee.
Thanks to a large staff and a relatively efficient application system, the EPO, despite an official backlog of 284 414 in 2005, has managed to keep the average first-action pendency period for patent examination shortest - between six and nine months, compared to 21 months in the United States and 26 months in Japan. Unlike other offices, the EPO does not practice outsourcing.
Emerging regions:
While the Trilateral Offices have in the past dominated the global IP landscape, several emerging states with rapidly-growing economies have started to play a larger role in that system.
The State Intellectual Property Office of China (SIPO):
The largest among the emerging economies is China, a country of 1.3 billion people and one of the fastest-growing economies in the world.
No wonder SIPO has set a goal to become the world's leading IP office: In 2006, it had a staff of 4 400 (which includes 2 000 examiners), more than double the amount of personnel the office had seven years ago. The number of patent applications rose from 100 000 in 2003 to 175 000 in 2005, a sign that the country has realised the importance of intellectual property.
While the total number of applications to the EPO from China remains small (roughly 5 000 compared to 27 000 from the United States), most experts believe that Chinese applications will soon make up a much larger portion.
In preparation, the EPO has already intensified cooperation with SIPO. As one senior EPO official said: "When the patent avalanche from China comes, we want to be ready."
The Europeans train SIPO examiners, and agreements have been formulated to grant access to each others' information and databases. Both offices have launched joint programs to reduce backlog, and the EPO's standard-setting function has helped SIPO harmonise its administrative proceedings. EPO observers hope that English-language searches will be available on Chinese databases within the next few years.
Korean Intellectual Property Office (KIPO):
The KIPO has a staff of 1 517, which includes 728 patent examiners. The Korean office has no official backlog and has even reduced times for patent examinations. In 2004, KIPO examined roughly 160 000 patents, and outsourced half of them. The number of recruited examiners is expected to double within four years. Korean firms such as Samsung and LG are among those with the most patent applications to the EPO.
Indian Patent Office:
The growth reported by the Indian Patent Office stems mainly from the country's IT and services sectors. The Indian patent office has a staff of roughly 200 with approximately 135 examiners. In 2005, the office examined approximately 14 500 patent applications.
Developing regions:
Latin America:
The EPO has an important standard-setting function with the patent offices in Latin America: It shares database systems, search engines and examiner education. The region is economically dynamic, and further growth is expected to come from the region.
Africa:
While cooperation with developed economies also aims at facilitating benefits for the EPC member states, work with Africa focuses on long-term development of their patent systems as well as on short-term help for aid organisations. By using its databases, the EPO for example has helped Doctors without Borders to identify cheap medication that is not protected in the country in which they are working. Particularly in the least developed countries, there is still a lack of awareness that IP can be a driving force for economic growth. Often, this positive development is pushed from abroad, and the EPO is continuing its cooperation with developing countries to help them improve their intellectual property systems and thus help spark much-needed economic growth.
Harmonisation and cooperation:
In-house cooperation:
In April the EPO launches the Utilisation Pilot Project, a 12-month initiative to test whether the EPO can use search work carried out by national patent offices on the same application. This pilot project is being carried out in the framework of the newly established European Patent Network, a strategic cooperation scheme of the EPO and the national patent offices.
Worldwide cooperation:
As patents are increasingly globally marketed, there exists a logical trend towards the harmonisation of patent laws. The World Trade Organisation with its TRIPs Agreement has already been successful in providing a forum for nations to agree on an aligned set of patent laws. Conformity with the TRIPs agreement is a requirement of admission to the WTO and so compliance is seen by many nations as important. This has also led to many developing nations - which historically may have developed different laws to aid their development - to enforce patent laws in line with global practice.
Another project launched by the World Intellectual Property Organization (WIPO) is the Substantive Patent Law Treaty (SPLT), a proposed international patent law treaty aimed at harmonizing substantive points of patent law. The SPLT aims to harmonize substantive requirements such as novelty, inventive step, industrial applicability and utility, as well as sufficient disclosure, unity of invention, or claim drafting and interpretation.
Given the shifting paradigms of the global patent system, it is a logical step for the Trilateral Offices to extend their cooperational network to emerging offices in China, Korea and India.