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PCT II - A Step Towards A "World Patent"?Tuesday, May 5. 2009Recently WIPO has published Document PCT/WG/2/12 for the second session of the PCT Working Group to be held in Geneva from May 04 to 08, 2009. The above-cited document contains a proposal by the United States Patent and Trademark Office (USPTO) for a comprehensive revision of the international patent system which would result in the establishment of a new Patent Cooperation Treaty, PCT II. Such PCT II would be an entirely new Treaty and should not be confused with PCT Chapter II proceedings under the existing Treaty. The proposal is represented in the below timeline:  PCT II Timeline
According to the Document it is envisioned that applications receiving a positive report at the end of the international/national processing would essentially result in automatic patent grants in all member States. Substantive harmonization and sovereignty issues could be overcome through a protocol system whereby a member State would have a given amount of time following the issuance of a positive International Patentability Report to issue a notification of refusal indicating that the conditions for the grant of protection have not been met. This default mechanism of automatic grant fiction would create a new type of patent grant procedure making it much easier, in terms of procedural efforts, to create patent rights covering many countries or regions. Not exactly being a true unitary 'world patent', it would resemble a step towards globalised granting of patents. The PCT Authorities under such PCT II Treaty might be structured as follows:  PCT II Authorities
A system as diagrammed above is thought by its U.S. proponents to result in an extremely high quality final work product that should be able to be heavily relied on, if not accepted, by national offices due to the fact that it is the result of a comprehensive search of multiple offices that incorporates prior art submissions by the applicant and third parties. It will have the additional confidence factor of being prepared in conjunction with the processing of the national application in Authority 3, thus resulting in either a patent grant or a final rejection in that office. While the above diagram indicates that the two searching authorities would feed the result of their searches to Authority 3, which then performs a complete examination, the exact nature of such a system should be explored. For example, some sort of collaboration between one or more authorities, could be established. One Authority could focus their efforts on specific technologies or on certain language documents. Also, as common search tools are improved, it may be possible to reduce the number of Authorities giving input to the process. In addition, it may be possible to implement aspects of the Patent Prosecution Highway as applicants enter the national phase. I do not expect that any such proposal will go through in any foreseeable time as it certainly would foster concentration processes amongst Patent Offices which surely will not suit PCT Member States with smaller Offices which, by political reasons, are not to be sacrificed. Tools
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You know if americans want to screw up their own country I have absolutely no problem with that. But why do they always insist on ramming their mistakes down the throats of every one else. Why is it so hard for them to understand that other people may hold different values. Obviously any country that doesn't sign this will be treated with trade harassment. While americans expect others to sign documents and they follow them americans think they are some how exempt from having to follow the treaties and agreements they sign.
To americans all I can say is ..!.. .
It seems simple, sensible, justified and reasonable...so it hasn't the proverbial snowball's chance in Hell to succeed.
What the Americans have unsurprisingly overlooked is the thorny language issue. Certainly, a large majority of PCT applications are in English (not least because of the unequal treatment of non-English language PCTs as prior art in the US), and there is no shortage of ISAs which can deal with English. However, the PCT has six other "publication languages": Chinese, French, German, Japanese, Russian and Spanish). There are two ISAs which can deal with French-language applications (the EPO and the Canadian IP Office), and two to deal with German-language applications (the EPO and the Austrian PTO). At a pinch, the EPO can also muster enough Spanish-speaking examiners (in fact, it probably has more Spanish examiners than the SPTO) to act as second ISA for Spanish-language applications (it already did: before it started accepting Spanish PTO international searches as equivalent to its own, there was a year-long quality project in which parallel searches were carried out at the EPO and SPTO). However, there is no second ISA available for the Chinese-, Japanese- and Russian-language applications...
Language issues are solvable. For example, the EPO already carries out search for Italian applications, which are drafted in Italian. Simply, either the applicant or the Italian Office provide an English translation of the claims to the EPO.
A similar solution could be considered for PCT II.
In my opinion, the real difficulty is the complete lack of uniformity of the working habits of examiners of different offices. Usually, objection raised by US, EP and JP examiners against a same application are not only different, but mutually incompatible. The task of ISA n°3 would be very, very hard.
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