CIPA presents a Patent Harmonisation policy briefing covering:
- 18-month publication period
- Conflicting applications
- Grace periods
- Prior user rights
Each section includes recommendations for policymakers.
18-month publication period
CIPA believes that harmonising the rules of publication of patents is an important part of achieving a coherent global patent system. CIPA believes that 18 months is an appropriate length of time and achieves a good balance between the interests of applicants and third parties. No opt-out provision should be introduced as it is unlikely to benefit the patent system.
Conflicting patent applications occur when an earlier-filed application is published after a later-filed application dealing with a similar subject matter. This is problematic because the contents of an application only becomes part of the prior art once it has been published, and the later-filed application should technically have been assessed against these contents. CIPA believes that since the rules of conflicting applications are part of the definition of prior art, they represent an important part of substantive patent law harmonisation. A whole contents approach is the correct one to adopt. Conflicting applications should not be subject to anti-self-collision provisions and should be assessed on grounds of novelty only.
The Grace Period in patent law refers to the period of time before the filing of a patent application when details of the invention can be disclosed without its novelty being lost, thus still allowing the inventor to apply for a patent for his invention. Harmonising the position on Grace Period in patent law is key to achieving a globally coherent patent system. Currently, a number of countries have a Grace Period and their lengths and conditions vary. CIPA believes that a universal and clearly defined Grace Period should be pursued as part of a comprehensive harmonisation package. In order to benefit from a Grace Period, a causal link between the disclosures and the inventor must be shown. There must be guarantees in place which ensure that harmonisation is implemented in the same way in each country. Sub-optimal harmonisation would be worse for applicants and the patent system than no harmonisation.
Prior user rights
CIPA believes that harmonisation of Prior User Rights is important, either as a topic in itself or as part of the harmonisation of the Grace Period. The requirement of good faith should be maintained. It is important for Prior User Rights to remain narrow personal rights, as their scope should be limited to what is strictly necessary. The territoriality extent of prior user rights should be carefully considered. There should also be clear guidance as to whether as part of being allowed to continue to do an act, prior users can also improve their existing technology or transfer it.