The Time is Nigh: A Proposal for an International Patent System

Chicago-Kent Journal of Intellectual Property Volume 16 | Issue 1 Article 7 11-22-2016 The Time is Nigh: A Proposal for an International Patent System Ben McEniery Follow this and additional works at: https://scholarship.kentlaw.iit.edu/ckjip Part of the Intellectual Property Law Commons Recommended Citation Ben McEniery, The Time is Nigh: A Proposal for an International Patent System, 16 Chi. -Kent J. Intell. Prop. 167 (2016). Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol16/iss1/7 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Journal of Intellectual Property by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact . THE TIME IS NIGH: A PROPOSAL FOR AN INTERNATIONAL PATENT SYSTEM BEN MCENIERY* ABSTRACT The world is slowly but inexorably moving towards adopting an integrated global patent system. It is inevitable that the present inefficient and splintered system in which patents must be separately obtained and enforced in each nation state must evolve to make obtaining global patent protection an achievable proposition for those other than just the wealthiest multinational corporations. The global patent system proposed in this article allows a patent applicant to file a single patent application in an international patent office, have that patent application examined in accordance with a uniform patentability standard, and results in the grant of a unitary patent that is enforceable in all member states. The proposed system differs significantly from previous proposals for a global patent system because it calls for matters of patent enforcement to remain the exclusive domain of member states and their courts rather than calling for the creation of an international patent court to hear infringement suits. This aspect of the proposal makes it a viable alternative to the current system because it allows nation states to retain a degree of sovereignty and control over the patents that are enforced in their territories, while embracing the substantive and procedural efficiencies concomitant with a truly integrated global patent system. 167 168 CHICAGO-KENT JOURNAL OF INTELLECTUAL PROPERTY Vol 16:167 TABLE OF CONTENTS I. INTRODUCTION ............................................................................. 168 II. THE PROPOSAL IN BRIEF .............................................................. 173 III. THE PROPOSAL IN DETAIL .......................................................... 176 A. A Unitary International Patent Issued by an International Patent Office .................................................................. 176 1. A single centralized publication ................................. 178 2. Examination ............................................................... 179 3. Pre-grant and post-grant opposition ........................... 180 4. The International Patent Court ................................... 180 5. Peer-to-Patent-style third party contributions ............. 182 B. Substantive Law Harmonization and a Single Centralized Examination ................................................................... 183 1. Harmonization of patentability requirements ............. 183 2. Harmonization of laws in respect of infringement and remedies ................................................................... 186 C. Enforcement in National Courts ....................................... 189 1. Jurisdiction and recognition and enforcement of foreign judgments ................................................................. 191 2. Defendants claiming invalidity in infringement proceedings .............................................................. 193 3. Coordination of parallel proceedings involving the same parties and issues ...................................................... 194 4. Capacity of national courts to handle patent litigation 195 D. Language .......................................................................... 195 IV. INSTITUTIONAL ISSUES............................................................... 199 A. Funding and Staffing ........................................................ 199 B. Commencement and Transitional Arrangements .............. 200 CONCLUSION .................................................................................... 200 I. INTRODUCTION Despite 150 years of admirable international consensus, the global patent system remains an inefficient collection of national patent systems and national laws. In this disjointed system, patents and national patent 2016 THE TIME IS NIGH 169 systems are firmly territorial in nature. Nations independently create and enforce their own national patent laws, maintain independent national patent offices, examine patent applications and grant their own national patents. Other than by some regional patent agreements, the norm is that patents for inventions are only protected in countries where a patentee has filed a patent application and where a patent has been granted. Outside those countries the patentee has no protection from imitators. Further, a patent holder must enforce each distinct national patent country by country, which is complex, incredibly costly and time-consuming.1 This fragmentation is the natural consequence of a global political and economic system that values national sovereignty most highly. Although the various harmonization efforts that have taken place in the last 150 years have ensured that the concepts of patentability are largely similar around the world, there remains a significant lack of uniformity in countries’ substantive patent law and patent practice. While the content of a nation’s patent laws is largely dictated by the various international treaties and conventions that impose minimum standards of intellectual property protection, those treaties, for the most part, describe conceptual norms in broad terms that lack prescription as to the detail or means by which they are to be implemented in legislation. Nation states and their legislatures, therefore, retain a significant freedom in deciding how the minimum standards dictated by international law are enacted in domestic law. These freedoms have been necessary to achieve consensus between nation states to negotiate complex international treaties, and are a recognition of the fact that different circumstances have necessitated that different standards be applied to suit local conditions in various places. However, they also create injustices for patent applicants and patentees, whose rights are often smothered by the sheer cost of engaging with the system. The territorial nature of patents causes unnecessary duplication of effort, both on the part of patentees and national patent offices. This duplication in turn imposes exorbitant costs on those who seek to patent in multiple (...truncated)