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A Global Call for Harmonization

Under Secretary of Commerce & Director of the USPTO David Kappos

April 5, 2011

Managing IP International Patent Forum, London

“A Global Call for Harmonization”

 

Good morning everybody and thank you for those kinds words, Eric.  It’s a distinct pleasure to kick things off at the 2011 Managing IP International Patent Forum, particularly because of what it represents. We meet at a time where countries around the world are facing generational challenges, and yet our willingness to convene here today underscores that while 21st century issues are 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 James Nurton and the Managing IP staff for putting together an event of this scale, particularly one that invokes an ethic of world-wide citizenship.

That’s why I’m honored to be joined by so many distinguished officials from the European Patent Office, the World Intellectual Property Organization, and the Asia Pacific Region. I’m also thrilled to see so many regional experts and practitioners here; whose attendance highlights the importance of public-private partnerships in our conversation today.

When we take a look around the room and see representatives from so many patent offices 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 country’s evolutions. Determined to accelerate economic recovery and growth, we represent governments 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 realizing 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 today’s 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 a world where information and commerce increasingly reach far beyond any of our borders. And as technological 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.  Moreover, as new technologies increasingly 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 nano-tech, another in software, and another in biology. These kinetic realities demand intelligent engagement and a smarter infrastructure to keep up.

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 are fundamentally different.  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.  The stress on our systems not only stifles our operational abilities as we stare at alarming patent backlog 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 the chains of 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.

That is why we are here today.

Now, let me say at the outset that by their very nature our conversations must be global in scope. While forums like this represent necessary steps in restarting the discussion, 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 the WIPO in early 2000, 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 boosts trade and opens markets. 

Inspired by such bold steps, last month, 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?  A universal affirmation 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 exists.  And I am thrilled that we’re so quickly here in London, opening up more opportunities to work together with more countries, since ultimately the roadmap to harmonization will be constructed by engaging offices across all continents in a global dialogue.

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 stand-still 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 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.

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 tens of thousands of examiner hours and millions of dollars between patent offices.  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.

Fundamentally, what these larger conversations regarding harmonization allow us to do is pour gasoline on the work-sharing fire.  The success of PCT and PPH gives us a chance to hold a critical lends 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 redundant 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. A few weeks ago, the US Senate overwhelmingly passed a sweeping patent reform bill.  And in just a few hours, as the sun rises over Washington, DC, our House of Representatives will continue its work on the legislation as well.  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 U.S. 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.  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.

That’s why we’ve implemented a range of patent acceleration programs. From our Track One initiative, for companies in need of hastening the review of their technology, to the Green Tech Pilot program, that prioritizes inventions built in the name of sustainable energy solutions—the USPTO is aggressively working to build a smart, more robust patent infrastructure that better utilizes our resources and yields faster idea-to-market turnover rate.  All these efforts are anchored by the desire to more effectively address backlogs, a problem we are all too familiar with.

The onus 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.

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. 

Thank you.

United States Patent and Trademark Office
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Last Modified: 4/18/2011 4:22:13 PM