Inventors gain

But the South feels cheated

By Clifford Polycarp
Published: Saturday 31 January 2004

inventors worldwide have received a new year bonanza. Protecting their inventions will be easier now with the new rules ushered in by the world's apex body governing the protection of intellectual property rights, the World Intellectual Property Organisation (wipo). Not only will the new procedure save them time and money, it will also increase their chances of getting a patent. Critics, however, feel that the changes are a part of a broader strategy of the us -- the world's leading patent holder -- and wipo to diminish the role of national patent offices, which currently reserve the sovereign right to grant patents.

The changes in the application procedure are a part of the reforms process that began in 2001 to improve the efficiency of the Patent Cooperation Treaty (pct). First negotiated in 1970, pct was created to enable patent holders to protect their inventions in member countries. As many as 123 nations, including India, are signatories.

Under the new rules, patent applicants will receive -- very early in the application process -- a written opinion on whether their invention meets the main patentability criteria. An invention can be patented if it is novel, involves an inventive step and has industrial applicability. The written opinion will come from an approved International Search Authority (isa), whose primary function is to ascertain whether the invention already exists. Earlier such an opinion was only available if the applicant demanded it by applying for a 'preliminary examination'.

With the isa's opinion, applicants can now modify their application before going in for a preliminary examination or even withdraw if it appears to not meet the criteria. Moreover, if applicants opt for a preliminary examination, the International Preliminary Examination Authority will admit the isa's view as the first written opinion.

The catch is that the search and examination authorities are mostly patent offices of industrialised countries, with the exception of China. That's why developing countries and the civil society have criticised the pct reforms process. They fear that this would eventually lead to an international patenting authority that undermines the sovereign right of a nation to accept or reject a patent. "The entire reforms process is a move towards harmonising patenting at the international offices," says an official of India's Union ministry of commerce and industry. "Some protocols are being proposed that would make granting a patent obligatory based on a decision taken by the us Patent and Trademarks Office or the European patent office," the official added. The two offices currently serve as international search and examination authorities.

Some us-based civil society experts argue that this would create a system in which developing countries or countries with small patent offices would be obliged to grant patents on the basis of the examination carried out by an international authority of the pct, thus creating an international patent office for these countries.

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