PTC FORUM

The Online Journal of the Patent, Trademark and Copyright Research Foundation

Editorial Comment

Global Intellectual Property Systems

Whether the creation of worldwide systems for the protection of patents, trade marks and copyright is a remote fantasy or realistically attainable, there has been a marked increase in the number of articles in which the possibilities are being discussed. Our digests of articles, which are a necessarily limited selection, have covered the global patent (starting with the mutual exploitation of examination results) [20061]; patents without borders and the future of patent harmonization [20048]; basic principles governing international protection of intellectual property [20041]; (in a similar vein, but by an academic, as opposed to a head of a patent office) the basic question of the survival of intellectual property rights at the international level [20033]; the problems of global law-making in the intellectual property field [20026]; and "current controversies" in this whole area [20006]. Before our online Journal began, two articles on the global harmonization of patent laws, from entirely different viewpoints, were World Patent System circa 20xx, by Gerald Mossinghoff (a former United States Commissioner of Patents) and Vivian S Kuo, published in IDEA, Vol 38 No 4, 1998; and Impediments to Global Patent Law Harmonization, by D Sabatelli and JC Rasser, published in N Ky Law Rev 579 (1995). Excellent though these two articles were, it is fair to say that a lot of water has flowed under the bridge since they were written. In particular, the progress made in the implementation of the TRIPS agreement and in the promotion of the Substantive Patent Law Treaty may be said to have brought some of the earlier concepts several steps nearer to realization.

In the article on the World Patent System, the authors confidently say: "A world patent system will be established in the twenty-first century: the only question is, how soon?" There are, however, a few other questions. One concerns the route by which the objective will be reached. Another concerns the scope of the system: whether, for example, it will include adequate provision for enforcement and jurisdiction. A third concerns the range of intellectual property rights likely to be subject to global harmonization: whether, for example, the creation of a world patent system will go hand-in-hand with the creation of a world trade mark system. A fourth concerns the motivation for pursuing global objectives: among influential academic commentators; more important, perhaps, among senior officials of national and international bodies responsible for intellectual property matters; and, most important of all, among captains of industries with a vast stake in the efficiency of whatever systems are available.

As to the route by which the objective can be reached, there are various options. On the face of it, the most promising may be through the World Trade Organisation, which has the power and prestige, as well as the foundations for further construction in the TRIPS Agreement. The World Intellectual Property Organisation may also be expected to play an important part, especially in the legal drafting and in the association of developing countries in the enterprise. The part played in the process by the three leading patent offices in the world, the European Patent Office, the Japan Patent Office and the United States Patent and Trademark Office, will be crucial to the success of all attempts to create a more widely cast and, ultimately, global system: all three grant "strong" patents, which may well be an essential condition for any scheme based on recognition, whether mutual or unilateral, by one another or by third parties.

In the long run, the process of harmonization is bound to develop by stages. The last stage is likely to be the development of jurisdiction in civil claims being given a supra-national status. It also seems likely that different forms of intellectual property, though subject to similar pressures for global harmonization, will develop separately and independently. Trade marks, for instance, have different national and regional offices from those responsible for patents; and it is arguable that global trade, and particularly the expansion of the Internet and the consequent use of domain names, are providing a sudden urgency for the resolution of trade mark and domain name problems.

Academic commentators are divided among the sceptics and the enthusiasts; but officials may be divided for rather different reasons. Greater globalisation almost certainly means a diminution of national authority; and national officials may defend their powers from transfer to regional or international bodies. However, most international officials and some national officials may see the opportunities, both substantive and professional, in the creation of larger units and wider fields in which to operate. Yet ultimately it is neither the academics nor the officials who will decide the matter. It will be the leading industrialists who make it clear whether global systems are wanted or not. It is they who will have to finance the systems through the fees they pay; and they will need to be persuaded that the fees will be justified. The history of the (European) Community Patent is not encouraging; but this has been bedeviled by language problems. To be a success, and to ensure that fees are not wasted, a global system calls for a minimum of linguistic variation and complexity.[10008]