In a recent post Microsoft’s Corporate Vice President and Deputy General Counsel, Horacio Gutierrez, articulated the need for a global patent system calling it “a necessity, if national patent authorities are to overcome the substantial difficulties they face”. With respect to patent applications, such difficulties include, increased number of patent application backlogs, longer pendency periods, increasing cost of patent prosecution, examination inefficiency due to duplication of work by multiple offices, etc.
A patent grants the owner of the patent the sole right to make, use, and/or sell the invention. By giving these rights and allowing patent owners to profit, patents arguably provide incentives for investing in research and being innovative.
Currently patents have temporal and geographical boundaries, which means, for instance, if a patent is obtained in the US that patent is not valid in Canada unless a patent application is also filed with the Canadian patent office and is approved. The cost of patenting a product is quite high, particularly if considering obtaining patent protection at global level and the process is time consuming. Gutierrez argues that a global patent system can overcome these problems and will promote innovation.
He further states “in today’s world of universal connectivity, global business and collaborative innovation, it is time for a world patent that is derived from a single patent application, examined and prosecuted by a single examining authority and litigated before a single judicial body. A harmonized, global patent system would resolve many of the criticisms leveled at national patent systems over unmanageable backlogs and interminable pendency periods”.
Clearly the idea of having a single global patent system is appealing to giant corporations such as Microsoft whose products are manufactured globally. Having such a system will significantly reduce cost, will save time, and will make it easier to handle infringement issues. However, to critics, Gutierrez’s arguments are not convincing enough.
Gene Quinn, Patent Attorney & IPWatchdog Founder, takes the position that a global patent system will hamper local and small businesses. He argues that, “what Microsoft wants is to kill software patents so that they cease to be punished for infringing patents owned by substantially smaller businesses who had the audacity to invent first and seek a patent”. It is noteworthy that Microsoft was recently sued in Texas for patent infringement regarding its Word application. Furthermore, according to another critic, Ron Katznelson, Gutierrez fails to explain the cause of the deficiencies in the current system and fails to address how harmonization might help. Ron Katznelson also supports Quinn’s view and calls harmonization an “illusory” myth, which is “to abolish the American legal system”.
Other critics have also raised their concerns regarding a global patent system; TechDirt, by comparing patent harmonization to attempts to harmonize Copyright laws, states that harmonization would make it more difficult to realize the innovation process and would benefit those who “benefit most from being able to abuse such monopoly rights”; ReadWriteWeb argues that such a system will make it easier for patent trolls to sue for damages; and Fudzilla states that Gutierrez is asking the world to adopt US patent laws.
Another criterion that concerns me is the position of developing countries. Many in these countries do not have sufficient assets to obtain expensive patented products or to get a licence for them. Thus, arguably, a global patent system – unless implemented in a way to address this problem – may lower living standards and hinder research.