The title which was given to my lecture is provocative. And yet it is not a lie. It is not
a wishful thinking that a World Patent will see the light one day. But when? That is the
question! Certainly not within 5 years or even within 10 years. Perhaps in 15 years or
even more? Who knows?
It is no
secret that many experts in the field of industrial property are against the whole idea of
a World Patent. By principle and for all kinds of reasons. Others are not against this
idea, but claim that a World Patent is impossible in a world run by States. Because
States, as everybody knows, are very touchy about loosing their power, their sovereignty
in any domain.
No, it is not impossible. No, it is
not a dream. A world patent will see the light one day, a single and same patent
recognised in all the world. A patent accepted by all countries.
Some say we are day dreamers. Yes we
are day dreamers! And we are proud of being day dreamers. After all so many things in life
were born out of a dream. I'll go further, it is precisely the role of inventors to be day
dreamers. To use their imagination.
When advocating the creation of a
World Patent, a question always comes back to my mind. Why shouldn't inventors enjoy a system somewhat similar to that
applied to writers? As you know,
a single copyright protects the work of writers all over the world.
I don't know the reason of that
difference of treatement between inventors and writers.
I imagine that, when adopting two different international systems for the protection of
intellectual property - the copyright system and the patent system - their authors did not
intend to create a large gap between writers and inventors as it exists today. I am
refering of course to the time when the Bern Convention for the Protection of Litterary
and Artistics Works, and the Paris Convention for the Protection of Industrial Property,
were adopted in 1886 and 1883, respectively.
At the time, there were few
independent countries, and a handful of huge empires and major States were ruling most of
the territories around the world. Later, after the First World War and the Second World
War, the number of independent countries increased. It increased drastically in the
sixties, when many Third World countries obtained their independence, and again in the
nineties when the Soviet Union collapsed. Today there are nearly 200 countries in the
Things were relatively simple at the
time when the Paris Convention was signed in 1883. The inventor who wanted to obtain a
world-wide protection, or at least protection in a significant number of territories, had
to deal with the patent offices of a handful of States only. Furthermore, the formalities
for obtaining that protection were limited in number and the cost was relatively cheap.
It is only recently that the patent
system became so expensive for the inventor, with the introduction of all kinds of new
formalities: annual fees (or other methods of maintenance fees), examination fees, etc.,
etc. , fees, fees, fees! And to deal with all these new and often complicated formalities,
the assistance of experts - patent agents and attorneys - has become indispensable, adding
still higher charges to the cost of patenting. Poor inventor, either plucked to his last
feather or simply thrown out of the international patent system.
Yes, the patent system had become a
headache. When in 1970, a new international treaty was signed in Washington D.C., called
the Patent Cooperation Treaty (PCT). Nevertheless, this new system of cooperation between
States, did not change the essence of the established system, for obtaining the protection
of an invention internationally, I mean in more than one country. The granting
of patents continued to be the privilege of each country. In fact one of the main
novelties of the PCT was that with this new system you could avoid separate national
patent applications with the patent offices of each State, by simply submitting a single
"international" patent application with one patent office. The PCT system was
definitly an improvement. However it was a limited improvement, as it only dealt with the
application for a patent protection, and not with the grant of a patent.
The PCT has
proved to be a good idea. In the year 2000, the number of PCT applications has reached
91.000. But there is the reverse side of the medal. New rules were regularly added to the
PCT. To the extent that the system can now be compared to a jungle, a thick jungle where
you loose your way
and your money. Thus the dispair of so many individual inventors,
as well as the lack of interest in the PCT shown by so many small and medium-sized
As some of you may know, the USA are
today in the frontline with regard to a drastic reform of the PCT. Their representative formally submitted proposals in this respect at a
WIPO meeting (the PCT Assembly) in September-October 2000. The USA suggested that the
reform of the PCT should take place in 2 stages. A first five-year stage, with a modest
scope, that of reducing formalities and costs, as well as modifying certain PCT procedures
so that they become conform to those of the recently adopted Patent Law Treaty (PLT). The
second five-year stage proposed by the USA for the reform of the PCT is intended to lead
to a much more in depth and drastic change of the PCT, which as I said before is at
present a filing system.
Following these preliminary
discussions of last September when the USA proposals were first submitted, WIPO decided to
organize a first round of discussions to take place in Geneva from May 21 to 25, 2001).
It goes without saying that
inventors are in favor of a drastic reform of the PCT. A reform that leads to the
simplification of formalities, the reduction of costs, and hopefully pave the way towards
a World Patent available to all inventors, and recognized by all States.
Let me just give you here a glimpse
of the discussions on the PCT reform which shall take place at WIPO. Out of the 15
proposals made by the USA in the framework of their first 5-year stage of reforms, I will
speak to you about the first 2 proposals.
Presently, when you apply for a PCT
patent, you have to designate in the application the States in which you want to obtain
protection for your invention, and of course pay the relevant fees. The USA proposes the
total elimination of this concept of designation of States. What a simplification when you
consider that the result will be that a PCT application will become valid automatically in
all States. Moreover, the cost of the operation - or rather of this no-operation! - will
be reduced to zero. Just imagine! Not a cent instead of the 840 Swiss francs, or about US
$492, as requested today if you designate all the PCT States in the application form. And
for once, not a cent to the patent agent and attorney.
In brief: No designation of States =
no formality. No formality = no fees, and of course no charges to be paid to the patent
agents or attorneys! IFIA also supports this American proposal for another reason, because
we are convinced that a single application valid in all States, would definitely mean a
step forward towards the establishment of the World Patent we dream of.
The second USA proposal I would like
to mention is the following. Presently only nationals of, and residents in, a State party
to the PCT can use the PCT system. The USA proposes to eliminate this condition. We
support this proposal, because our solidarity at IFIA goes to every inventor in the world,
regardless of nationality or residence. Our opinion is that there is no reason why an
inventor who is a national of a country not party to the PCT, or not living in one of the
Contracting States, should be ostracized, penalised. We also support this particular USA
proposal for another reason. Indeed this reform would also pave the way to the achievement
of our ultimate goal, that of a World Patent, a single patent open to the world-wide
community of inventors.
This being said, we all know that
the way to Paradise - and here I mean of course the World Patent we dream of - is a long
one and full of thorns... We know that the 10-year US project of reforms of the PCT won't
be an easy one to achieve. First there is the extreme complexity of the system. Second, it
will be difficult to accomodate all the interests involved. Some Governments are looking
at the American proposals with a dubious eye, not to speak of some patent agents and
attornys for whom the more complex the law, the more money they get. And don't get me
wrong: if IFIA agrees with the first two USA proposals, it doesen't mean that we agree
with all the American proposals!
Even when the day will come that the
PCT is reformed, our struggle will not be over! There will still be a long way to go
before a World Patent is eventually adopted. Just look at Europe! Inspite of their
historical and cultural affinities, the Europeans have not yet been able to adopt a Patent
that would be accepted by all the members States of the European Union. And when you think
that these discussions have been dragging for 30 years
No wonder then that governments keep
avoiding using the term World Patent in official public meetings! They would rather use
the term "Global patent system". A term which is vaguer and doesn't close the
door to compromise.
And here, I would like to share with
you some general thoughts on how
I personally see a World Patent.
First, a World Patent will not
eliminate the need to maintain national (or regional) patents.
However, the substantive and procedural provisions of the national patent laws will have
to be harmonized so that the World Patent be based on more or less the same principles and
rules. The present PLT, which was adopted in 2000, is supposed to have solved most of the
procedural aspects of the national patent laws. The discussions which started this week at
WIPO, in Geneva, concerning the harmonization of substantive requirements of patent laws,
are aimed to achieve the second goal, a goal which, as we know, is a very difficult one to
Second, a World Patent will not
eliminate the need to maintain national (or regional) Patent Offices. However, their
function will have to be adapted. It wouldn't be the first time: already in the seventies
and the eighties, patent information services were added to the traditional functions of
Patent Offices. In more recent years, the promotion of local inventive activity was also
introduced. I am proud to say that I consider myself as the "father" of the idea
of promoting inventive activity at the international level, that is when I was working as
a staff member of WIPO.
Third, a World Patent would need to
include several major elements. In my view, the following three should be the backbone of