An insight into the laws and treaties governing the enforcement of patents
As a rule of thumb, the grant and enforcement of patents are governed by national laws rather than international unified rules, but also there are governing international treaties, where those treaties have been given outcome to the national laws. Patents are, therefore, territorial in nature.
Commonly, a nation founds a patent office with responsibility for operating that nation's patent system, within the relevant patent laws. The patent office generally has liability for the grant of patents, with breach being the remit of national courts.
There is a trend towards global coordination of patent laws, with the World Trade Organization (WTO) being particularly active in this area. The TRIPs Agreement has been largely successful in providing a forum for nations to agree on an aligned set of patent laws. Compliance with the TRIPs agreement is a requirement of admission to the WTO and so compliance is seen by many nations as important. This has also led to many rising nations, which may historically have developed different laws to aid their development, enforcing patents laws in line with global practice.
A key international law relating to patents is the Paris Convention for the Protection of Industrial Property, initially signed in 1883. The Paris Convention sets out a range of basic rules concerning patents, and although the convention does not have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all remarkable current patent systems. The most significant aspect of the convention is the provision of the right to claim priority: filing an application in any one member state of the Paris Convention conserves the right for one year to file in any other member state, and receive the benefit of the original filing date. Because the right to a patent is intensely date-driven, this right is primary to modern patent usage.
The power for patent statutes in different countries varies. In the UK, substantive patent law is contained in the Patents Act 1977 as amended. In the United States, the Constitution authorizes Congress to make laws to "promote the Progress of Science and useful Arts..." The laws Congress passed are coined in Title 35 of the United States Code and created the United States Patent and Trademark Office.
In addition, there are international treaty measures, such as the measures under the European Patent Convention (EPC) [administered by the European Patent Organization (EPO.org)], and the Patent Cooperation Treaty (PCT) (administered by WIPO and covering more than 140 countries), that consolidates some portion of the filing and examination procedure. Similar provisions exist among the member states of ARIPO and OAPI, the analogous treaties among African countries, and the nine CIS member states that have formed the Eurasian Patent Organization.
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