As a leader in science, technology and innovation, the United States long has played a central role in global intellectual property matters. As the world’s largest economy, the United States has played a central role in trade policy, including its role in setting up the TRIPS agreements that made intellectual property rights a precondition for joining the WTO. The USPTO is continuing this leadership role by hosting a Roundtable on the international harmonization of substantive patent law on November 19, 2014, but it should look at its own practices that keep the U.S. out of harmony with other major national patent offices.
The USPTO’s important role in international patent law and policy derives, in part, from being the patent office of the United States. It also comes from initiatives at the USPTO and other government agencies to promote international harmonization of patent laws and practices. These include membership of the PCT, which provides for international patent applications; implementation of the America Invents Act (AIA), which made strides towards harmonizing substantive patent law; and various USPTO Patent Prosecution Highway and work sharing agreements with other patent offices to facilitate patent examination. The USPTO Roundtable continues this trend.
Despite these initiatives, other United States policies and USPTO practices leave the United States off-key as compared to other countries.
Substantive Patent Issues
While the agenda for the USPTO’s Roundtable focuses on substantive prior art issues (“[t]he definition and scope of prior art; the grace period; and standards for assessing novelty and obviousness/inventive step”), true international patent law harmonization will not be realized until the USPTO fine tunes its own practices and addresses these and other issues that keep the United States off-key.