National patent systems are failing globally – CP is key to transition into a global IP regime and maintain tech advantage

What is clear is that for as long as the patent systems of the world are governed by national legal systems, as they presently are, an invention will only be protectable in a jurisdiction if a patent has been granted for that jurisdiction. A patent system may be seen as more or less inventor-friendly, by multiple different measures, but ultimately it is not substitutable by another system. The United States is a driving force in innovation and economic growth, so its patent system can expect to remain in demand.

Stepping back, it should perhaps be noted that the basic outline of the patent system is the same around the world—a highly examined monopoly lasting 20 years. That system derives from a time of much slower moving inventive pace, and has added complications and costs (office fees and translation costs), which make the obtaining of global coverage a time-consuming and very expensive exercise.

Is that level of expense, and the time taken to get to grant in some countries, compatible with the current pace of technological advance? Can companies at the cutting edge of artificial intelligence (AI) and connectivity be expected fund the process of keeping their patenting activity running alongside their technological innovation? To some extent the same can be said of the medical sector, where the ability to obtain suitable patent protection for molecular and biological pharmaceuticals was in line with the pace of change, but which has been joined by fast-moving biotech and genetic innovation and the overlap of technology and diagnostics.

Is a 20-year term necessary or useful now, other than to deal with the regulatory delays in getting some products to market? Could that issue not be addressed in other ways? Renewal fees alone are a massive burden, and many companies are too slow to realize that they are paying to renew obsolete patents.

The patent system may not be in decline, but it is beginning to get breathless in its need to keep up with the searing pace of technological change. The time might therefore be right to step back and consider changes, or parallel systems, to allow necessary protection for fast-moving, if short-lived, technological advantage.