The Paris Convention is based on three main principles, viz., national treatment, right of priority and the independence of patents. The principle of national treatment seeks to ensure that each country provides the same protection to its citizens and citizens from other member states18. The right of priority gives the person who files, for instance, a patent application in one country, precedence over other potential claimants in other countries. In other words, the person who has filed a patent application in one country is given twelve months during which s/he can decide to file in other countries without incurring the risk of seeing the subsequent applications invalidated because of another filing, publication or exploitation of the invention. The third principle is that patents granted in different countries, for the same invention, are independent of each other 19. In view of the fact that countries can have different patents for the same invention are separate rights limited to the territory of one given country. This may, for instance, imply that the duration of the patent may be different in different countries or in the extreme that a patent granted in one country may be denied in another because of specific restrictions on the subject matter, for instance.
Draft Substantive Patent Law Treaty
The adoption of the TRIPS Agreement in the context of the WTO incorporating a large part of the Paris Convention has not signaled the end of WIPO's efforts to further develop patent law. Since the adoption of the TRIPS Agreement, WIPO has taken a number of new initiatives 21. It first led to a successful conclusion, the negotiations for a treaty seeking to harmonise procedural requirements in patent applications, which was eventually adopted in 2000 22. Since then, WIPO has embarked upon a much more ambitious project, which has the potential to be at least as far-reaching as the TRIPS Agreement in the evolution of patent law around the world. The new proposal is for a substantive patent law treaty, which would harmonise the substantive requirements of patent law at the international level. The rationale behind proposals for harmonisation is that the costs of obtaining patents in different countries has significantly increased and that these costs could be lowered, if some of the basic principles underlying the grant of patents such as the definitions of prior art, novelty, inventive step and industrial applicability were harmonised 23. WIPO's Standing Committee on the Law of Patents has been providing the forum for negotiations of a draft, but there is an expected high level of resistance to such a treaty and the successful conclusion of the negotiations cannot be taken for granted in the context of the Patents (Amendment) Act 2004 24.
Notes and References
18 Article 2(1), Paris Convention.
19 Article 4bis, Paris Convention.
21 WIPO had previously attempted to lead negotiations on a patent harmonisation treaty that were abandoned in 1991. See Text of the Basic Proposal for the Treaty and the Regulations as Submitted to the Diplomatic Conference for the Conclusion of a Treaty Supplementing the Paris Convention as far as Patents are Concerned, The Hague, June 1991 reproduced in WIPO Doc SCP/4/3 (2000).
22 Patent Law Treaty, Geneva, 1 June 2000, WIPO Doc PT/DC/47.
23 See generally, WIPO, Suggestions for the Further Development of International Patent Law, Standing Committee on the Law of Patents, Fourth Session, Geneva, November 2000, WIPO Doc SCP/4/2.
24 For the latest draft, see Draft Substantive Patent Law Treaty, Standing Committee on the Law of Patents, Tenth Session, Geneva, May 2004, WIPO Doc SCP/10/4.