Overview of International Patent Law
International Patent Law Overview
Reoccurring Themes to Consider in International Patent Law
Overall, many patents around the world are valid for twenty-year periods or can be renewed up to that time frame. Each of the regional associations and countries described below allow for exclusive use by the owner or those licensed by the owner. A consistent intention in the countries described is to promote creativity and protect the original patent-holding inventor. Each of the countries regulates patents on a federal rather than state level. Many of the countries described identify policies and practices on federal websites run by the government of that country itself. Novelty is described differently across these countries; however, it is central to the grant or denial of each application. Most require proof the invention is not publicly known. In a similar vein, these countries require the invention is useful or meets a utility function. Below we provide an overview of international patent law on a country-by-country or regional basis.
United States Patent Law
Before delving into how other countries operate with patent applications, the processes in the United States can lay a foundation to compare ourselves to other countries and international organizations. Federal law regulates patent law in America. Cornell Law School Legal Information Institute, 35 U.S. Code § 101 - Inventions patentable, https://www.law.cornell.edu/uscode/text/35/101#:~:text=35%20U.S.%20Code%20%C2%A7%20101,is%20defined%20in%20section%20100. The United States accepts patent applications through the United States Patent and Trademark Office (USPTO). USPTO, Patent Essentials, https://www.uspto.gov/patents/basics/essentials#questions.
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” 35 US Code 101. USPTO, Patent Essentials, https://www.uspto.gov/patents/basics/essentials#questions.
Keep in mind that there are three types of patents in the U.S.: Utility, Design, and Plant. There are four requirements statutorily for a patent application, generally: (1) The subject of the patent must work, (2) a clear description of the subject of the patent must be provided, (3) the subject must be novel or new, and (4) the subject matter must be non-obvious to someone skilled in the art. USPTO, Patent Essentials, https://www.uspto.gov/patents/basics/essentials#questions. These elements vary slightly for plant and design patents. USPTO, Patent Essentials, https://www.uspto.gov/patents/basics/essentials#questions. They all must include more than abstract concepts or ideas like mathematical formulas. USPTO, Patent Essentials, https://www.uspto.gov/patents/basics/essentials#questions. The patent provides the holder with the right to exclude others for a twenty-year period from making, reselling, or licensing others to do so. USPTO, Patent Essentials, https://www.uspto.gov/patents/basics/essentials#questions.
Canadian Patent Law
Canada processes new applications through the Canadian Intellectual Property Office. Government of Canada, File a Canadian patent application: before you start, https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/patents/patent-applications-examination-and-patents/file-canadian-patent-application-you-start. The law regulating patents in Canada is called the Patent Act. Government of Canada, Justice Laws Website, https://laws-lois.justice.gc.ca/eng/acts/P-4/page-1.html#h-412189. The Governor in Council has the discretion to appoint a Commissioner of Patents. Government of Canada, Justice Laws Website, https://laws-lois.justice.gc.ca/eng/acts/P-4/page-1.html#h-412189. This Commissioner receives the fees and issues or grants patent applications based on the materials provided. Government of Canada, Justice Laws Website, https://laws-lois.justice.gc.ca/eng/acts/P-4/page-1.html#h-412189.
The categories of patents are similar to America and include products, compositions, machines, processes, or improvements on any of these categories. Government of Canada, Justice Laws Website, https://laws-lois.justice.gc.ca/eng/acts/P-4/page-1.html#h-412189. They also allow for the patent to last for twenty years, and the primary purpose of the patent is the right of exclusion by those not holding the patent. Government of Canada, Justice Laws Website, https://laws-lois.justice.gc.ca/eng/acts/P-4/page-1.html#h-412189. There is general overlap with American law in the patentable material, timeframe, and primary purpose of the patent.
Mexican Patent Law
The granting office in Mexico is also a federal office called the Instituto Mexicano de la Propiedad Industrial. USPTO, Mexico, https://www.uspto.gov/learning-and-resources/pursuing-international-ip-protection/mexico. Mexico has a separate prosecuting office through the Fiscalía General de la República (attorney general) called Unidad Especializada en Investigación de Delitos contra los Derechos de Autor y la Propiedad Industrial. International Trade Administration, Protecting Intellectual Property, https://www.trade.gov/country-commercial-guides/mexico-protecting-intellectual-property. The country has work sharing programs with USPTO. International Trade Administration, Protecting Intellectual Property, https://www.trade.gov/country-commercial-guides/mexico-protecting-intellectual-property. The Mexican government provides a database for users to search for patents already licensed in the country, like the novelty aspect of American and Canadian law. Gobierno de Mexico Secretaria de Economia, Instituto Mexicano De La Propiedad Industrial, https://www.gob.mx/impi#7023.
United States-Mexico-Canada Intellectual Property Agreement
Each of these three North American countries prioritizes novelty and exclusive use for patent holders. They are also all part of the United States-Mexico-Canada Agreement. International Trade Administration, Protecting Intellectual Property https://www.trade.gov/country-commercial-guides/mexico-protecting-intellectual-property. One aspect of this agreement relates to protecting intellectual property across the three countries from infringement. Office of United States Trade Representative, United States-Mexico-Canada Agreement, https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement. The specific text of the international agreement helps to better state its purpose. Office of United States Trade Representative, United States-Mexico-Canada Agreement, https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement.
“Article 20.4: Understandings in Respect of this Chapter
Having regard to the underlying public policy objectives of national systems, the Parties recognize the need to (a) promote innovation and creativity; (b) facilitate the diffusion of information, knowledge, technology, culture, and the arts; and (c) foster competition and open and efficient markets; through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including right holders, service providers, users, and the public.” United States-Mexico-Canada Agreement, Intellectual Property Rights Chapter 20, https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/20%20Intellectual%20Property%20Rights.pdf
The goals are similar to those across the three countries to encourage innovation, promote competition, and assist in sharing knowledge of new inventions. United States-Mexico-Canada Agreement, Intellectual Property Rights Chapter 20, https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/20%20Intellectual%20Property%20Rights.pdf
Brazilian Patent Law
Further down in Latin America, the National Regulatory Office in Brazil is called the Instituto Nacional da Propriedade Industrial; INPI. WIPO, An international guide to patent case management for judges Chapter 3 Brazil, https://www.wipo.int/patent-judicial-guide/en/full-guide/brazil. The law regulating patents in Brazil is Law NO. 9,279 of May 14, 1996. Presidency of the Republic Ministry of Civil Affairs Sub-Office Legal Affairs, Law NO. 9,279 of May 14, 1996. https://www.gov.br/inpi/en/services/patents/laws-and-regulations/laws-and-regulations/lpienglish.pdf.
The two categories of inventions in Brazil are industrial products and industrial activities. WIPO, An International Guide to Patent Case Management for Judges Chapter 3 Brazil, https://www.wipo.int/patent-judicial-guide/en/full-guide/brazil. The patents must include novelty, inventive step, and industrial application. WIPO, An International Guide to Patent Case Management for Judges Chapter 3 Brazil, https://www.wipo.int/patent-judicial-guide/en/full-guide/brazil. They do not include abstract inventions like in American law. WIPO, An International Guide to Patent Case Management for Judges Chapter 3 Brazil, https://www.wipo.int/patent-judicial-guide/en/full-guide/brazil.
There are some similarities to the federal processes in the United States because protections last for twenty years from the filing date of the application. WIPO, An International Guide to Patent Case Management for Judges Chapter 3 Brazil, https://www.wipo.int/patent-judicial-guide/en/full-guide/brazil. They also require drawings submitted with the application to better describe the subject matter of the patent and novelty. WIPO, An International Guide to Patent Case Management for Judges Chapter 3 Brazil, https://www.wipo.int/patent-judicial-guide/en/full-guide/brazil.
Chilean Patent Law
Chile regulates patents through the Instituto Nacional de Propiedad Industrial (INAPI). Instituto Nacional de Propiedad Industrial, Patents Information, https://www.inapi.cl/en/patents/information. Analogous to the American system, patents in Chile allow for exclusive use by the owner, and they last for twenty years. Instituto Nacional de Propiedad Industrial, Patents Information, https://www.inapi.cl/en/patents/information. The law regulating Chilean patents is 19.039. Instituto Nacional de Propiedad Industrial, Patents Information, https://www.inapi.cl/en/patents/information. The requirements for Chilean patents are novelty, inventive step, and industrial application. Instituto Nacional de Propiedad Industrial, Patents Information, https://www.inapi.cl/en/patents/information. The inventive step looks like non-obviousness in American patent law. Instituto Nacional de Propiedad Industrial, Patents Information, https://www.inapi.cl/en/patents/information. Similarly, the industrial application mirrors usefulness in America. Instituto Nacional de Propiedad Industrial, Patents Information, https://www.inapi.cl/en/patents/information.
Chinese Patent Law
On the mainland of the Asian continent, China regulates through the China National Intellectual Property Administration (CNIPA) for national patents. CNIPA, About, https://english.cnipa.gov.cn/. The law governing Chinese patents is called the Patent Law of the People’s Republic of China. CNIPA, Law, https://english.cnipa.gov.cn/. The categories of patents are Invention, Utility Model, and Design. CNIPA, Law, https://english.cnipa.gov.cn/. All three of these are considered “invention-creations.” CNIPA, Law, https://english.cnipa.gov.cn/. The grant of the patent allows for exclusive use, like American patents. CNIPA, Law, https://english.cnipa.gov.cn/. Patent-related appeals go to the Beijing High Court. European Patent Office, Grant Procedure – China, https://www.epo.org/en/searching-for-patents/helpful-resources/asian/china/grant. A request for an examination must occur within three years of filing the initial application. European Patent Office, Grant Procedure – China, https://www.epo.org/en/searching-for-patents/helpful-resources/asian/china/grant. Like American patents, the Chinese patents seek to support creativity through inventions. CNIPA, Law, https://english.cnipa.gov.cn/.
Japanese Patent Law
Off the mainland, the Japanese Patent Office regulates patents federally in Japan. European Patent Office, Grant Procedure – Japan, https://www.epo.org/en/searching-for-patents/helpful-resources/asian/japan/grant-procedure. The act regulating patents in Japan is called the Patent Act. WIPO, An International Guide to Patent Case Management for Judges Chapter 7 Japan, https://www.wipo.int/patent-judicial-guide/en/full-guide/japan. The act defines invention in relation to nature: “highly advanced creation of technical ideas utilizing the laws of nature.”
Like American patents, this excludes theories or abstract ideas. WIPO, An International Guide to Patent Case Management for Judges Chapter 7 Japan, https://www.wipo.int/patent-judicial-guide/en/full-guide/japan. An inventive step can also determine acceptance or denial of a patent application in Japan. WIPO, An International Guide to Patent Case Management for Judges Chapter 7 Japan, https://www.wipo.int/patent-judicial-guide/en/full-guide/japan. There are five steps to determine an inventive step.
“(1) identification of the gist of the invention (present invention); (2) identification of the primary cited invention; (3) comparison of the present invention and the primary cited invention; (4) identification of correspondence and difference; and (5) determination of whether the present invention could be easily conceived.” WIPO, An International Guide to Patent Case Management for Judges Chapter 7 Japan, https://www.wipo.int/patent-judicial-guide/en/full-guide/japan.
They have a specialty high court that hears appeals in Tokyo. European Patent Office, Grant Procedure – Japan, https://www.epo.org/en/searching-for-patents/helpful-resources/asian/japan/grant-procedure. This is called the IP High Court. WIPO, An International Guide to Patent Case Management for Judges Chapter 7 Japan, https://www.wipo.int/patent-judicial-guide/en/full-guide/japan. The Japanese Patent Office is one of the largest in the world. WIPO, An International Guide to Patent Case Management for Judges Chapter 7 Japan, https://www.wipo.int/patent-judicial-guide/en/full-guide/japan. Grants fall under TOROKU and the application must go through examination within three years from the filing date. European Patent Office, Grant Procedure – Japan, https://www.epo.org/en/searching-for-patents/helpful-resources/asian/japan/grant-procedure.
Indian Patent Law
The Department of the Promotion of Industry and Industrial Trade oversees patents in India. Ministry of Commerce & Industry, Government of India, Controller General of Patents, Designs, and Trade Marks, https://www.ipindia.gov.in/about-us.htm. The Patents Act regulates patents in India. Ministry of Commerce & Industry, Government of India, Controller General of Patents, Designs, and Trade Marks, https://ipindia.gov.in/patents.htm. The country has the Intellectual Property Board of India to handle appeals to determinations to grant or deny applications. European Patent Office, Grant Procedure – India, https://www.epo.org/en/searching-for-patents/helpful-resources/asian/india/grant. The request for examination must occur within four years from the initial application date. European Patent Office, Grant Procedure – India, https://www.epo.org/en/searching-for-patents/helpful-resources/asian/india/grant.
South African Patent Law
Companies in the Intellectual Property Commission (CIPC) oversee patents in South Africa. South African Government, Register a Patent, https://www.gov.za/node/727377. The Patents Act of 1978 regulates patents there. South African Government, Register a Patent, https://www.gov.za/node/727377. The three requirements are that it is a new invention, with an inventive step, and it can be used in trade or agriculture. Companies and Intellectual Property Commission, Register Patent, https://www.cipc.co.za/?page_id=4184. The product or process definition also looks like the American system. Companies and Intellectual Property Commission, Register Patent, https://www.cipc.co.za/?page_id=4184. Purely mental processes are excluded as well. Companies and Intellectual Property Commission, Register Patent, https://www.cipc.co.za/?page_id=4184. The grant for the patent lasts twenty years like many other countries around the world, including America. Companies and Intellectual Property Commission, Register Patent, https://www.cipc.co.za/?page_id=4184.
ARIPO - African Patent Law
On the African continent, a regional body called the African Regional Intellectual Property Organization regulates twenty contracting states. ARIPO, Patents, https://www.aripo.org/ip-services/patents. The twenty contracting states to the regional body are: Botswana, Cabo Verde, Kingdom of Eswatini, The Gambia, Ghana, Kenya, Kingdom of Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Sierra Leone, Seychelles, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe. ARIPO, Patents, https://www.aripo.org/ip-services/patents.
A notable difference in this regional organization comes from three countries that banned pharmaceutical products from protection: Rwanda, Liberia, and Uganda. ARIPO, Patents, https://www.aripo.org/ip-services/patents. Patents are granted or denied based on the Harare Protocol on Patents and Industrial Design in force since 1984. ARIPO, Patents, https://www.aripo.org/ip-services/patents. Their three requirements of patents are new, non-obvious, and industrially applicable. ARIPO, Patents, https://www.aripo.org/ip-services/patents. A couple of similarities to American patents exist where the patents must be non-obvious, last for twenty years, and the patent serves to protect the inventor’s profits through exclusive use. ARIPO, Patents, https://www.aripo.org/ip-services/patents.
German Patent Law
The German Patent and Trademark Office regulates patents in Germany. German Patent and Trademark Office, Patent, https://www.dpma.de/english/patents/patent_protection/index.html. The protections last for twenty years. Government United Kingdom, Apply for a Patent, https://www.gov.uk/patent-your-invention. The Patent Act defines the protections for patents further. Government United Kingdom, Apply for a Patent, https://www.gov.uk/patent-your-invention. The definition and description portion of the patent application resembles the American system. German Patent and Trademark Office, Application, https://www.dpma.de/english/patents/application/index.html. Claims and a drawing can be included to describe the invention. German Patent and Trademark Office, Application, https://www.dpma.de/english/patents/application/index.html.
French Patent Law
INPI under the French Republic oversees patents in France. French Republic, Effective protection for your aesthetic protections, https://www.inpi.fr/comprendre-la-propriete-intellectuelle/les-dessins-modeles. The protections last for five years and can be renewed four times. French Republic, Effective protection for your aesthetic protections, https://www.inpi.fr/comprendre-la-propriete-intellectuelle/les-dessins-modeles. The three requirements are novelty (meaning unique character), legitimacy, and visible elements. French Republic, Effective protection for your aesthetic protections, https://www.inpi.fr/comprendre-la-propriete-intellectuelle/les-dessins-modeles. Legitimacy considers if the inventor files the application or not. French Republic, Effective protection for your aesthetic protections, https://www.inpi.fr/comprendre-la-propriete-intellectuelle/les-dessins-modeles. Infringement is treated as strict liability regardless of knowledge under this section. French Republic, Effective protection for your aesthetic protections, https://www.inpi.fr/comprendre-la-propriete-intellectuelle/les-dessins-modeles. Visibility refers to what consumers see during the use of the product. French Republic, Effective protection for your aesthetic protections, https://www.inpi.fr/comprendre-la-propriete-intellectuelle/les-dessins-modeles.
Swiss Patent Law
The Swiss Federal Institute of Intellectual Property determines patent eligibility in Switzerland. Swiss Federal Institute of Intellectual Property, About Us, https://www.ige.ch/en/about-us. The Status of the IPI further lays out their functions in accepting, denying, and administering intellectual property rights. Swiss Federal Institute of Intellectual Property, About Us, https://www.ige.ch/en/about-us. Swiss patents are not granted with guarantees. Swiss Federal Institute of Intellectual Property, Verifying Novelty, https://www.ige.ch/en/protecting-your-ip/patents/before-you-apply/verifying-novelty. This means that a successful challenge to a granted patent puts the patent in danger of invalidation. Swiss Federal Institute of Intellectual Property, Verifying Novelty, https://www.ige.ch/en/protecting-your-ip/patents/before-you-apply/verifying-novelty. Securing an attorney to search is recommended by the associated governmental entity. Swiss Federal Institute of Intellectual Property, Verifying Novelty, https://www.ige.ch/en/protecting-your-ip/patents/before-you-apply/verifying-novelty.
United Kingdom Patent Law
The Patents Act of 1977 regulates patents in the United Kingdom. Government United Kingdom, Statutory Guidance, https://www.gov.uk/government/publications/the-patents-act-1977#:~:text=Statutory%20guidance-,The%20Patents%20Act%201977,patents%20system%20in%20the%20UK. The Intellectual Property Office oversees the patent applications in the United Kingdom. Government United Kingdom, Apply for a Patent, https://www.gov.uk/patent-your-invention. There are three requirements for patents in the United Kingdom. Government United Kingdom, Apply for a Patent, https://www.gov.uk/patent-your-invention. They must be new (on an international scale), inventive (in a similar meaning to non-obviousness), and useful. Government United Kingdom, Apply for a Patent, https://www.gov.uk/patent-your-invention.
Patents in the United Kingdom expire after five years, but they can be renewed for up to twenty. Government United Kingdom, Apply for a Patent, https://www.gov.uk/patent-your-invention. The description requirements of the patent application in the United Kingdom mirror America’s in some ways. Government United Kingdom, Prepare Your Application, https://www.gov.uk/patent-your-invention. There must be a description of the invention that allows others to understand how it is made. Government United Kingdom, Prepare Your Application, https://www.gov.uk/patent-your-invention. The claims section describes each element of the patent, the technical components. Government United Kingdom, Prepare Your Application, https://www.gov.uk/patent-your-invention. A summary appears within the document of both prior sections. Government United Kingdom, Prepare Your Application, https://www.gov.uk/patent-your-invention. Including drawings is optional. Government United Kingdom, Prepare Your Application, https://www.gov.uk/patent-your-invention.
EPO
In Europe, another regional body operating across several countries is the European Patent Office. European Patent Office, Homepage, https://www.epo.org/en. The regional office facilitates new applications across each participating European country. European Patent Office, Homepage, https://www.epo.org/en. Applicants have twelve months from the initial application to file across the participating countries, and the initial filing date corresponds to each new application for that one-year period. European Patent Office, Homepage, https://www.epo.org/en.
There are thirty-nine participating member states: Albania, Austria, Belgium, Bulgaria, Switzerland, Cyprus, Czech Republic, Germany, Denmark, Estonia, Spain, Finland, France, United Kingdom, Greece, Croatia, Hungary, Ireland, Iceland, Italy, Liechtenstein, Lithuania, Luxembourg, Latvia, Monaco, North Macedonia, Malta, Netherlands, Norway, Poland, Portugal, Romania, Serbia, Sweden, Slovenia, Slovakia, San Marino, and Turkey. European Patent Office, Homepage, https://www.epo.org/en. Challenges can occur in the national courts of each country or the Unified Patent Court. European Patent Office, Homepage, https://www.epo.org/en.
Closing Thoughts on Navigating International Patent Law
Patent costs and specific requirements vary between countries, despite overall similarities. These costs and specifics can be considered in greater depth than presented here before applying for patents in the mentioned countries. Regional bodies coordinate some countries across geographic areas in Europe and Africa. This allows for some continuity and ease of registration across regions. It also allows for coordination of categorical denials of some patents in groups of countries in Africa.
The patent process overall allows for wealth creation by the license holder, as investors can be further persuaded by the registration in a country’s federal office. Many of the federal websites linked above reinforce this opportunity. They note that determination on a patent application can make or break a business invention. Patents across several countries can have benefits and downsides, depending on the needs of the applicant. Many of these governmental websites advise the applicant to consider consultation with a licensed attorney in the associated country.
The same websites also note the benefits of creative, novel inventions in their countries. The regulation provides a vehicle for creative innovation with regulations to protect the original patent-holding inventors. In countries where a check is not part of the duties of the patent office, challenges to the patent’s creativity can make or break its continued use. The application processes that require novelty checks before approval hinge the acceptance of a patent on the distinguishing elements from prior art. International patents may be a lucrative option for successful companies with active patents in a single country as well.
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