A Global Call for Harmonization
Under Secretary of Commerce & Director of the USPTO David Kappos
April 28, 2011
Fordham Law School IP Conference – Lunch Keynote
“A Global Call for Harmonization”
Remarks as prepared for delivery
Good afternoon everybody and thank you.
It’s always a pleasure to participate in Fordham Law School’s annual IP Conference—not only do I get to be among friends, but this gathering has always assembled a group that isn’t afraid to be candid; a group that doesn’t shy away from the provocative, and a group that builds solutions almost exclusively by thinking outside the proverbial box. And I’m not saying that just to pander to Hugh. I’m saying it because we meet at a time when countries around the world face generational challenges that demand bold and creative engagement.
So our willingness to convene here today underscores that, while 21st century issues may be global in scope, so too are their solutions.
In that spirit, I’d like to convey the gratitude of the United States Patent and Trademark Office and thank Hugh Hansen and the Fordham Intellectual Property Law Institute staff for putting together an event of this scale, particularly one that invokes an ethic of global citizenship.
That’s why I’m honored to be in the presence of many distinguished officials from across the world. I’m also thrilled to see so many regional experts, academics and practitioners here; whose attendance highlights the importance of public-private partnerships in our conversation today.
From Melbourne to Madrid and Nashville to New York, when we take a look around the room and see representatives from so many different jurisdictions all convened under one roof, we know we can state with conviction: That a dialogue with many of the world’s most important trading partners is essential to successfully navigating the dynamic intellectual property terrain of this century.
All of us stand at an important crossroads in each of our countries’ evolutions. Determined to accelerate economic recovery and growth, we represent governments, institutions and industries that strive on a daily basis to do more while working with less.
We also represent many of the strongest and most sought-after patent systems in the world. And while we all work to improve the economic outlook for our countries, we remain grounded in the essential truth: That technology and innovation—through strong, balanced intellectual property protection—will write the next chapter of global growth and social progress.
That is why this forum is vital. Because, as we seek to strengthen our respective patent and trademark systems to promote the development of new industries and new jobs, the conversations we have here today will not only allow us to identify barriers that impede innovation; they will also empower us to annunciate a clarion call to collectively build an IP infrastructure for a globalized world.
Now, we live in an age where technological change can occur not just in a New York minute, but in a business instant; an age where information and commerce increasingly reach far beyond any of our borders. So as scientific and commercial advances present new opportunities, they also present new challenges. As innovators seek to open markets abroad, it is imperative that the international patent system provide a cost-effective way to obtain reliable patent rights in multiple jurisdictions.
And let me be clear: an idea—no matter how novel, disruptive or groundbreaking—without clear and consistent IP protection throughout the world, effectively translates into a royalty free donation to the global labor arbitrage. And in a globalized economy, not only can innovations be instantly co-opted by our economic competitors or pirated by shadowy online groups, but the very production and manufacturing jobs they create will devolve into a race to the bottom—rewarding economies with the lowest wages, weakest labor standards, and most toxic environmental policies.
Moreover, as new technologies become a part of everyday life—from computers to mobile phones to life-saving drugs—they are also becoming more cross-disciplinary. Great new products have one foot in bioscience, another in software, and yet another in nano-tech. These kinetic realities demand intelligent engagement and a smarter infrastructure to keep up.
This means that an optimized innovation environment doesn’t just balance technologies and growth. It also balances market competition with protection for creative genius. And the public must have confidence that the patent system is striking the right balance between incentives to innovate and access to those new innovations. We have a unique opportunity, right now, to meet these challenges. Because while the dynamics of our economic landscape may be shifting, the importance of IP rights is not. Patents are the premiere global currency for creating value for services and products, for innovators in all of our countries.
But if we don’t keep up with a technological and commercial system that moves ideas and products across borders with increasing speed—we risk devaluing that currency. To be clear, patent laws are stuck well back in the last century because our systems are so varied and our laws so fundamentally different.
This is particularly frustrating because on a fundamental level, we seem to have pinned the very practice of intellectual property law to an inept and byzantine construct that can’t keep up with the times. Just take a look around and you’ll find yourselves asking how anti-trust law, in all its grandeur and complexity, is able to have more consistent practices throughout the world than IP law does. The same with other areas of commercial law. And in the IP area, both copyright and trademark laws from country to country are more in synch with one another, than is the case with patents.
As a result, patent offices around the world are repeating the same work done by other countries, ultimately wasting billions of dollars a year, clogging the pendency pipeline and leaving the patent system, ironically, as the laggard among commercial legal regimes. As an IP lawyer, I’m bewildered, and as the Director of the United States Patent and Trademark Office, I cannot stand for it.
The stress on our systems not only stifles our operations as we stare at alarming patent backlogs rates, it also impedes our ability to grow new jobs, compete in burgeoning markets, and fertilize new products and services that address modern social challenges. But today, by affirmatively working together, we can say no to those impediments. No longer will we ignore new economic realities and the role the patent system plays in them. No longer will our economies be shackled by patent backlogs.
And in order to address these matters, no longer will “harmonization” be deemed a dirty word. Instead, a 21st century imperative demands that we work together to place our patent systems on a much more common footing, based on best practices and not based on quid pro quo trading of concessions.
Have no doubt about it, if we fail to act...if we continue to simply ignore the topic, or if we remain deadlocked in the minutia as only IP professionals can do, then others will be happy to act for us. We’ll see what harmonization looks like when crafted in political terms, or other terms that lack a refined appreciation for sound and balanced global patent policy.
Now, let me say at the outset that by their very nature our engagements on this issue must be global in scope. Harmonization is a matter affecting trade interests across all nation-states. Engagement, therefore, must include both developing and developed members. As was learned from the Substantive Patent Law Treaty talks held at WIPO in the early 2000s, taking into account the perspectives of developing countries is essential to establishing priorities for any conversation regarding international norms.
Equally critical is the participation of Europe. At the precipice of historic change, the Council of the European Union recently took a critical step towards the creation of a single patent system—one that would replace the status quo of individually validated and enforceable rights in each country. While the new rules are still in the process of adoption, the USPTO applauds the EU’s leadership in streamlining and strengthening its IP architecture. Not only will this reduce patenting costs for all countries, but it represents a step towards greater harmonization generally and a step towards boosting trade and opens markets.
Inspired by such bold steps, in March, the United States Patent and Trademark Office hosted the Asia-Pacific Patent Cooperation Conference, as a first step of our own to restart a global dialogue. The goal was simple—to gather patent leaders and experts from developed and developing Asia-Pacific economies to share views on patent law harmonization.
The result? An overarching consensus that harmonization discussions must move forward. In the words of the participants, taken from the Agreed Statement of the meeting: “The time for substantive harmonization is now. We are operating in a global economy, business innovation is happening across borders. The IP system needs to be supportive of this new reality.” So from Beijing to Bangkok and Brasilia to Tokyo, have no doubt about it, the will and wherewithal exists.
Now of course, patent law harmonization has been a topic of discussion within the IP community and among its leading experts since at least the 1960s. But despite all the time spent on the topic, inertia has overcome us in recent years. Nevertheless, the sheer number of people in this room represents the desire to try again. And even when conversations come to a standstill as they have, we can all acknowledge, with honesty, that there is immense value in resolving our differences.
Worldwide, there is broad agreement that the public gains when the world’s experts in areas of science and technology disclose their advances in a manner that seeds new ideas, prompts new approaches, and teaches the public exactly what has come before. That is why I hope we can earnestly address issues about patentability standards, scope of enforcement, definitions of prior-art and a host of other topics. These matters should be robustly debated so we have a precise understanding of the perspectives behind our varying policies and their impacts on efficiencies in our offices. Discussions should also consider pre-grant prior art submissions by third parties, and what grace period laws best promote full disclosure, early disclosure, and maximum dissemination of information.
But let me be clear: patent law harmonization is not about imposing the will of any country or group of countries onto another or about challenging patent sovereignty in our IP ecosystem. And it is not per se about imposing higher levels of patent protection on developing countries.
Rather than bickering over the minutia, we all need to step back and balance all of our collective interests in a vibrant global innovation marketplace, and ask: what is it that really best promotes innovation; what is it that’s going to make it easier for small businesses to do business in new markets; ask, what is it that’s going to reduce backlogs and spur the next chapters of developmental growth; ask what is it that will create an inventor friendly patent system that accelerates research & development in large and small markets, in developing and developed countries.
Ladies and gentleman, an earnest discussion about harmonization is an effort aimed at discussing how to relieve burdens that are wearing out all of our IP infrastructures. In the name of devising real solutions to cut down workflow redundancies and reduce patent pendency, we can collaborate to unleash millions of jobs lying in wait, and drive growth into our economies.
But our discussions must be rooted in global best policies and practices—basic principals we agree define a 21st century patent system that maximally accelerates technological progress.
We’ve seen what can be accomplished through multilateral agreements like the Patent Cooperation Treaty and bilateral relationships like the Patent Prosecution Highway (PPH). Not only do these programs have proven success rates, but they save many millions of dollars of application expenses, tens of thousands of examiner hours and millions of dollars between patent offices, annually. Moreover, they allow inventors of all sizes to more efficiently tap into overseas markets, expanding their reach, opportunity and innovation potential.
About 8,000 applications are projected to make their way through the US PPH this year, and our goal now is to streamline procedures through a new iteration of PPH that we refer to as PPH 2.0. The success of PCT and PPH gives us a chance to hold a critical lens up to examination standards and envision a system where administrative protocols are ironed out and backlogs no longer keep us up at night. If we can eliminate repeated work, and free up resources for higher quality patent reviews, we ultimately generate the economic lift that comes from moving ideas to the market place more efficiently.
Now no one expects that it will be quick or easy to reach substantive harmonization conclusions. But the leaders in this room need to own our role in the international IP community. So let’s first look to gain a better understanding of our needs, issues and flexibilities; and also learn about why each of us considers a specific approach to be a best practice worthy of inclusion in the global gold standard patent system.
And let me assure you that the United States is ready, willing and able to make some bold moves. Last month, the US Senate overwhelmingly passed a sweeping patent reform bill and just a couple of weeks ago, the House of Representatives Judiciary Committee voted in favor of very similar legislation by a margin of 32-3, paving the way for final consideration in the House of Representatives when Congress returns next month. When enacted, this legislation will mark the most sweeping reforms to the US patent system in at least 60 years—arguably in over 150 years. The legislation will transition the US from first-to-invent to the first-to-file system, eliminate the Hilmer doctrine and move other areas of US patent law to international norms.
Now, the US is undertaking these essential reforms not as part of an international negotiation, or to gain leverage in a quid-pro-quo bargain, but because they are global best policy and best practices—because they are the right thing to do. Not only will these reforms reduce costs, they will also level the playing field for everyone from large businesses to small inventors seeking to participate in the global marketplace. Moreover, this major legislation will boost productivity by enabling greater cross-border work-sharing between the USPTO and all other patent offices.
The USPTO, US Commerce Secretary Locke and President Obama stand firmly behind the current patent reform effort in the US Congress and are working to ensure this legislation gains all the bipartisan support it possibly can. But beyond patent reform, our determination stems from the fact that granting higher quality patents more efficiently empowers innovators to engage the global marketplace. It empowers the limitless reach of the human mind to create opportunity—jobs, healthier citizens, a cleaner planet, sustainable energy solutions, and most of all, a bright future for our children.
So the onus really is on us—all of us here today—to decide whether we want to enhance and accelerate progress or continue to sit by while the rest of the global commercial and technological system moves ahead. I believe circumstances demand that we re-ignite patent harmonization discussions. And at the end of the day, building a system that incubates good ideas, offers the highest quality reviews, and swiftly brings the best products to the marketplace, benefits innovators and governments alike, and writes the next chapter of economic growth.
This rang true when Abraham Lincoln noted that a robust patent system added the fuel of interest to the fire of genius, and it continues to ring true as President Obama points out that our success and exceptionalism in this new and changing world requires innovation to change lives, inspire thought and win the economic future. I urge us all to begin the process of patent law harmonization anew, now. I urge us all to search for common ground. I urge us all to let best global policy and best practices be our guide. To paraphrase Winston Churchill, seldom before have so many depended so much on the efforts of…us.