Some notes on a world wide patent

Only an australian patent attorney would ponder a “worldwide” or global patent. Because they think about getting the things and not about enforcing them.

How could it work really? So you could apply via the patent cooperation treaty (PCT) and have rights in the 150 or so jurisdictions signatory to that genius. Then what?

If you want to enforce it, it (the patent right) would immediately be challenged in Court for want of validity. Let’s assume the patent is litigated where you enforce it – say Europe. The patent is likely to be found invalid (because the Europeans are nasty) which opens up the rights not just in Europe, but globally.

A risky business to enforce then!

Maybe better to leave the infringer in some countries – perhaps those which have harsh Courts – in favour of keeping presumably valid rights in other counties. Unless there is infringement in a market worth litigating (eg the U.S.) where revenue is worth it – why bother?

So maybe businesses would start drafting their patents to accommodate the European style because it is there where the rights need to be water tight. But how does a European drafted patent stand up in a U.S. Court? Tough gig. European claims can be odd.

Maybe under the worldwide patent, it has to be litigated in every country separately.

Yes makes sense.

But then given that every country has a different Court and precedent, isn’t it likely that you will need a local attorney to jostle up the patent document to make it survivable during local litigation. So we need local attorneys again, and the concept of a global patent is pointless because there is then no generic.

Hmmm, back to the central Court idea. Maybe there could become global Courts enforcing a global patent law. It doesn’t matter if you bring the case in France or Australia the decision is binding over all. Once upheld you reap it everywhere. Oh look how well that worked out in Europe where the ECJ rules supreme over the member states. Funny.

In order to make this central global super-court work, you would have to get everyone to agree on a set of rules that define patentable subject matter – are computer programs in? Is the test for obviousness the “obvious to try” or problem-solution approach. An we mosaic?

To be honest the whole thing is only an issue when you wish to enforce a patent. And not many patents are ever enforced so we may as well go to global patent simply because it would save businesses money.

And this paradigm of “it matters not” is already in place because most countries have a global patent prosecution highway (GPPH) which basically means claims granted in one country will be accepted or allowed in a partner country. Of course all the limitations outlined above apply, but no one cares for all the reasons outlined above


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