Taking Up the Charge for Patent Harmonization

Undersecretary of Commerce & Director of the USPTO David Kappos

March 7, 2011

Asia-Pacific Patent Cooperation Conference Opening Address

"Taking Up the Charge for Patent Harmonization"

Remarks as prepared for delivery


Good morning everybody and thank you for joining us today at the United States Patent and Trademark Office.

I'd like to first take a moment to offer my sincerest appreciation, on behalf of the USPTO, to all the participants for joining our conversation here. I am honored that United States Secretary of Commerce Gary Locke will join us later to outline the growth-by-innovation strategy of the Obama Administration. I am also very pleased to see distinguished officials from the Asia Pacific Region, the World Intellectual Property Organization and from the European Patent Office. I would also like to welcome our private sector guests 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 economic evolution. Determined to accelerate economic recovery and growth, we are representing governments and patent systems that strive on a daily basis to do more while working with limited resources.

But today 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 are also grounded in one essential truth: That technology and innovation along with strong, balanced intellectual property protections will write the next chapter of global growth and economic progress.

That is why it's an honor to kick off our conversation regarding Asia-Pacific Patent Cooperation in the 21st Century. Because, as we all 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 an increasingly globalized world.

All the economies represented in this room today are driven by innovation. And our collective economic prosperity going forward depends upon our ability to innovate.

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. New markets, new business processes, new goals and new ideas are welcome with open arms, but they all continue to add stress to our patent systems. And while the dynamics of our economic landscape may be shifting, the importance of IP rights is not. Patents are the global currency for creating value for services and products for innovators in all of our countries

And yet, because our systems are so varied and our laws often fundamentally different, time and time again patent offices around the world are repeating the same work done by other offices, ultimately wasting billions of dollars a year, clogging the pendency pipeline and devaluing the currency of innovation.

That is why we are here today. And that is why it's an economic imperative that we work together to promote solutions that make sense-collectively-for all of our countries.

And let me say at the outset that by its very nature our conversation is global in scope. While this gathering embodies a first step, we are all mindful and appreciative of how partnerships with offices and economies beyond the Asia-Pacific Region, including developed and developing countries in Europe and Africa, will be required to address the concerns we share today. I am thrilled that we get the opportunity to work together here in making a start; but we all recognized the roadmap to harmonization will ultimately be constructed by engaging offices across all continents.

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, not enough progress has been made; and patent laws remain the least harmonized of the world's intellectual property safeguards. Furthermore, inertia has overcome us in recent years and since about 2006 efforts to move forward with patent harmonization seem to have ground to a halt.

And yet the sheer number of people in this room represents a willingness to move forward. And when people like the team of experts joining us today, pen papers proposing a framework for harmonization, we all take notice. And even when conversations come to a stand-still as they have, we all acknowledge 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 over the next two days I hope we can earnestly address issues and constructively discuss patent law harmonization. I look forward to speaking about grace periods, patentability standards, 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 also will consider pre-grant prior art submissions by third parties, and what laws best promote full disclosure, early disclosure, and maximum dissemination of information. Harmonization in these areas would greatly facilitate world-wide work-sharing. That would in turn hold a critical lends up to examination standards. Ultimately giving way to higher quality patent reviews, reduced backlogs, and ultimately the economic boost of moving ideas to the market place more efficiently. Not only will the scope of our conversation be illuminating, but I'm hoping it will be rooted in global best policies and practices-basic principals we agree define a 21st century patent system that maximally accelerates technological progress.

And let me be clear:

These efforts we undertake today are not about imposing the will of any country or group of countries onto another or about challenging patent sovereignty in our IP eco system. These efforts are not per se about imposing higher levels of patent protection on developing countries. Rather, our efforts are aimed at beginning a discussion about the best policies and the best practices to improve the global patent system for all stake holders. Our efforts are aimed at discussing how we can relieve burdens that are wearing out our IP infrastructure.

Ladies and gentleman our efforts today are about beginning a substantive dialogue to put patent law harmonization back on track. They're about collaborating on what makes the most sense for our shared global currency of innovation in the 21st century. The leaders in this room today need to own our role as an international IP community. We don't expect to reach substantive harmonization conclusions in the next two days, but we do expect to talk about what matters.

We do expect to gain a better understanding of our needs, issues and flexibilities. We do expect to 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. Harmonization will benefit the world's IP system greatly, but it's a heavy lift. Well-the lift starts here.

Now speaking for a moment from the perspective of the United States, let me assure you that we are ready to make some bold moves.

At this very moment, just a few kilometers north of here, the United States Congress is debating S.23, the Patent Reform Act of 2011. If 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 a First-Inventor-to-File system, eliminate the Hilmer doctrine and move other areas of US patent law toward 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 dramatically 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 of the other offices represented here today. The USPTO, 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 regardless of the final outcome we see in the U.S. Congress, our determination stems from the fact that granting higher quality patents more efficiently empowers innovators to engage the global marketplace. Their ideas are the life blood of our economic engines. To ensure our systems enable innovators to flourish it is essential that we work together.

I know the dialogue surrounding patent harmonization has been ongoing for many years, and has borne little in results. But the issues we discuss at this point in history are rooted in a very different environment than conversations past: namely, the 21st century. We know commerce does not stop at the border's edge, and human creativity knows no boundaries in our fully technological world. With the demands of a global marketplace, there is simply no excuse for our patent systems to stand as the lone remaining un-coordinated system in an otherwise highly fluid, global environment for exchange of all kinds.

The onus is on us to decide whether we want to enhance and accelerate progress or continue to sit by while the rest of the global system moves ahead. Modern reality demands that we re-ignite patent harmonization discussions. I urge us all to begin the process today. 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.