How do I protect my invention worldwide?

How do I protect my invention worldwide?

A worldwide patent would be a boon for inventors, but it does not yet exist. When will we get one?

Perhaps the most common misconception about patents is that there exists a “worldwide” patent – a single patent that protects an invention all around the world. Unfortunately, worldwide patents do not yet exist and there is debate about whether they will ever eventuate.

A worldwide patent would be very handy. Ideally, a patent application would be examined by an international body following a single set of rules and there would be no need for it to be examined in any other jurisdiction. There would be global laws and an international court to enforce worldwide patents.

The current system
Although worldwide patents are not yet a reality, it is perfectly possible to get patent protection worldwide. The difference is that the current system requires applicants to obtain a separate patent in each jurisdiction where protection is required. Each jurisdiction does its own examination of patent applications and each jurisdiction has its own rules about what can be patented.

Australian patent applicants generally start the process by filing a provisional application in Australia. If patent protection is needed in a number of jurisdictions, the process usually continues by filing a PCT application within 12 months of the provisional application filing date.

About the PCT system
Confusingly, a PCT application is also referred to as an “international application”, even though it does not lead to an international patent.

A PCT application is actually an intermediate stage before filing national applications in chosen jurisdictions. Once the national applications are filed, each application progresses independently according to the rules of the particular jurisdiction. The time it takes to complete the process depends largely on the backlog of applications in each jurisdiction.

Although PCT applications currently undergo a prior art search and a preliminary examination process, the results are non-binding on any jurisdiction. Each jurisdiction will subsequently do its own examination of the application during the national phase.

The future
Microsoft has publicly expressed a desire for a worldwide patent. If it were to happen, how might we get there? On the face of it, PCT applications look like an important first step towards a worldwide patent. PCT applications handle the early stages of the patenting process and almost every jurisdiction in the world subscribes to it.

However, there is a long way to go. PCT applications really only deal with the submission process and the format of documents and diagrams. This kind of stuff is relatively easy to get international agreement on.

It is much harder to get countries to agree on more substantive issues such as what can be patented or the threshold of inventiveness. Each country has its own views on what should be patentable. For example, the patentability of software varies significantly between jurisdictions. The same can be said for the patentability of treatments for humans.

Another major obstacle is the enforcement and litigation of a future worldwide patent. What court would hear patent cases? No such court exists now.

Rather than seeing a massive expansion of the PCT system, we may instead see a gradual growth in regional patent systems, which would go a long way towards simplifying the process for inventors. For example, we are getting closer to a European patent and a European Patent Court. It will be interesting to see what unfolds and how long it takes.

Justin Blows

j.blows@phoenixIP.com.au