Are industry and inventors ready ? 

Lecture by Dr. Farag Moussa
International Federation of Inventors' Associations (IFIA)

farag.jpg (4113 bytes)

Helsinki, May 18, 2001
On the occasion of the 30th Anniversary of the
Federation of Finnish Inventor's Associations (KEKE)


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 world!

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 innovative enterprises.

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 reach

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 the system:

bulletThe international examination must have a binding effect, even if it will most probably have to be undertaken by more than one national (or regional) examination authority.
bulletThe grant of the World Patent should be the responsibility of a single authority which should be administered  internationally. Perhaps WIPO, why not? This idea is not new, and is not an IFIA idea.  The idea of a "PCT Patent"  was launched in 1998 at a PCT International Symposium in    Beijing, by  the Secretariat of WIPO, through one of  its Deputy Director Generals, Mr. François   Curchod.
bulletThe enforcement of the World Patent would obviously need the establishment of a World Patent Court. A real challenge!

Personally, my feeling is that both inventors and industry could find a common ground of agreement on these three major aspects of a future World Patent. Speaking on behalf of the inventor community whom I represent here, and to answer to the question put forward in the sub-title of my lecture, I can tell you that inventors are ready for a World Patent.

This being said, a World Patent should of course be a system affordable to independent inventors and Small and Medium-Sized Enterprises (SMEs). We at IFIA request a special reduction in PCT fees in favor of these two categories. By the way, this is already the case in a number of countries who offer fee reductions amounting to at least 50% to independent inventors and SMEs, irrespective of their nationality or residence. Here of course intervenes the role of the Governments, for it is the Governments who, in the final instance, take the decisions regarding the patent system at both the national and international levels.

Will Governments hear our voice, the voice of the inventors?

Back to World Patent page