It solves – Harmonization

A. The World Patent System 1. Office Set-Up The overriding characteristic of a World Patent System (WPS) is that it would be a multinational organization established, managed and administered, not by national patent offices, but by international civil servants in a multinational setting established by treaty.218 In its primordial stages it would operate in parallel with national systems.219 However, to be truly effective, it will not grant a bundle of national patents -as is now done by the European PatentOffice220 -but a single unitary patent respected in all of the member states.221 2. Language Requirements Under the WPS, the first-to-file system would be implemented as well as the grace period, both discussed earlier.25 However, a language agreement would also need to be reached.226 "Currently, as many as two dozen languages must be used to reasonably cover a single invention internationally.'227 TheEP022' now has three "official" languages -English, German and French -in which examinations are conducted.229 However, the bundle of patents elected at the time of the EPO grant must be translated into the respective language of each selected country.2° No less than ten translations would be required at the end of the examination process by electing all of the EPO countries.3' With additional EPO memberships from Central/Eastern Europe,232 the costs of translations in the EPO alone could simply become overwhelming.233 "This European Tower of Babel will have many neighbors if the newly industrialized countries of East Asia and other regions insist on using their own languages in their emerging patent systems."'234 A WPS that would use all of the languages of the world would clearly not be reasonable.231 English should be considered the world language of trade, science, technology, and intellectual property.236 "By conservative estimates, 750 million persons speak English, almost half of them as their native language.237Two-thirds of the world's scientific information is published in English,38 and eight-five percent of all information now stored in computers is in English.239A large majority of EPO-filed cases are now in English, with those filed in French accounting for less than ten percent.240 "Cases in the EPO originating from outside Europe -notably from the United States and Japan -are virtually all in English.'24 The EPO, Japan patent office and Chinese patent office all require their patent examiners to be fluent in English.242 Choosing English as the language of the WPS24 3 simply recognizes that English is the only practical choice for a World Patent System that will demand a common worldlanguage.2" Given the success of the Japanese Patent Office (JPO) in moving to a “paperless" environment, and the corresponding strides in the United States and the EPO, the World Patent System would use a single electronic database of worldwide prior art against which to search and examine patent applica-tions.25 Eventually, machines may be fully capable of "conversing" with patent professionals.246 Even though patents would be examined and enforced in English, the WPS should take advantage of machine translations to provide patent disclosures to all countries in their own languages.2 47 " This will reinforce the use of patents as a uniquely rich source of scientific, technical and business information.248 3. The WPS Judicial System As noted," patents essentially are national instruments to be enforced by national courts.250 The WPS envisioned here would be in sharp contrast to this.251 "There would be a single World Patent Court (WPC) with branches or ‘circuit' courts at the locations of the regional patent offices to decide appeals from those regional offices of the World Patent System and to hear and decide enforcement actions, including both infringement and validity issues."252 "Under the treaty establishing the [WPS], decisions of the [WPC] would be given full faith and credit and implemented and enforced through national courts of all of the member states."253 Instead of appeals and enforcement actions being heard by national jurists, panels of expert multinational jurists, appointed through a merit system administered by the World Patent System would be used.254 Patent enforce-ment trials would be presided over by what the United States would refer to as hearing examiners or special magistrates, throughout the nations that establish the WPS.255 "To ensure impartiality, the multinational jurists who make up the [WPC] and the hearings examiners or special magistrates would be assigned, not based upon their nationality, but rather on their technical expertise and to assure a fair and competent balance in any hearing or enforcement action."256 For instance, an appeal in a United States regional court could be heard and decided by a three-judge panel - one from Europe, one from Latin America, and one from Asia - depending on the results of impartial, probably random, assignments.257 "The [WPC] would have to have firm control over pretrial and trial procedures in preparing cases for decisions, drawing upon the best experience of the member states?"8 Alternate dispute resolution based upon the best international models would be strongly encouraged to lower the cost of patent enforcement actions."9 B. Baseline Requirement System for World Patent System Unlike the detailed system outlined above, another alternative to a globalized patent law system may be based on a basic set of rules while each nation maintains similar performance levels.267 This system would only need to maintain certain characteristics instead of matters being decided by one central court with world-regional branches.268 The first characteristic of a harmonized system is that each nation need not be identical.269 Some feel that identical systems would require uniformity beyond that needed to achieve the beneficial effects of a uniform system.270 This system would not contain just one of one court of appeals or one single patent office.The second characteristic is congruence.272 Congruence would be based on robust similarities of outcome from one country to another, instead of identical statutory provisions.273 The congruence would allow the large issues to be easily considered without having to research nations individually.274 Any differences existing between nations would be handled by specialty attorneys?" The third characteristic is stimulation.276 "People involved in the process of invention, technical advancement, and creative expression will be stimulated by confidence that the results of their efforts can be safeguarded from misappropriation and unauthorized copying, no matter which country becomes the location of their activity."277 A quasi-numerical based model best exemplifies how these characteristics would create an efficient globally harmonized patent system.278 This system rates countries from a scale from one to one-hundred on intellectual property systems relative to one another.279 For this rating, the entire intellectual property system is taken into consideration.280 "As examples, Germany can be rated at slightly more than 90, the United States and some of the European countries in the high 80s, and Mexico after its . . . reforms at about 75, whereas Argentina and Brazil currently rank in the 30s and 405308" Only countries with a system above seventy will produce positive results.282 The results can be measured in terms of three critical occurrences: private venture capital firms become willing to invest in technology-based start-up companies, valuable technical knowledge flows more readily from university laboratories to the marketplace, and local firms' willingness to devote substantial resources to internal research.283 Some commentators feel that this kind of patent system would be better in the long run284 than a system such as the WPS?" This idea is based on the fact that some variation from jurisdiction to jurisdiction would be valuable.286 The theoretical literature on this ‘jurisdictional variation" posits that the primary reason for such variation is to permit each jurisdiction to match its laws to the unique tastes and preferences of its population?" This argument has a strong and weak version, with the weaker being more relevant to the international context.288 The weaker argument assumes a stable set of preferences within each jurisdiction and concludes that the diverse laws of each jurisdiction more closely match the individual preferences within the jurisdiction than would a uniform set of laws imposed across all jurisdictions.289 An example of this in the patent context exists relating to the TRIPS Agreement' 3290 flexibility?" The TRIPS Agreement itself recognizes the value of local diversity.292 An example showing the validity of jurisdictional variation exists when considering applying rules from highly-developed countries in the less-developed world.293 This uniformity could be considered inappropriate because the widest divergence of preferences might well be found between developed and less ‘developed countries."4 However, there are two significant limitations to the local preferences argument.295 First, harmonized patent law does not result in the same degree of uniformity as other harmonized laws, e. g., wage law.296 Second, and more importantly, the local preferences argument is less compelling where the diversity occurs between nations having similar preferences than where preferences are likely to be widely divergent.297 However, the case for jurisdictional variation does not rest solely on matching local preferences.298 Another justification for permitting jurisdictional variation is that tolerating variation will breed jurisdictional competition, in turn, checking governmental inefficiency and abuse.299 However, this argument does not present very powerful reasons for resisting global patent harmonization because even where harmonization is pursued in a number of legal issues, competition on other points can still provide an effective check on govern- ment.300 Also, patent law presents this argument with a problem because the variation now existing among nations' patent law is not imposing any significant check on government inefficiency.301 Jurisdictional variation may also allow legal innovation to occur more rapidly.302 A legal innovation can be valuable not only to the jurisdiction of the innovation, but to others based upon information produced by the results of the innovation.303 This innovation rationale has other implications apart from the others reasons supporting jurisdictional variation}04 The innovation rationale is different than a rationale based on matching local preferences because any innovations in patent law are probably more likely to occur in developed nations, which already possess a sophisticated understanding of the area.305 Innovations are less likely in less—developed nations, which do not have long experience with patent systems."S Because an experimentation rationale gives reason to tolerating diversity between developed nations, it may be sensible to tolerate more diversity between developed nations than between developed and less developed nations.307 However, even if only the developed countries are able to experiment through legal innovation, the history of patent law has shown that even experimentation conducted by large nation-states can produce significant new ideas in law.308