Dominating global intellectual property: Overview of patentability in the USA, Europe and Japan
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Dominating global intellectual property: Overview of patentability in the USA, Europe and Japan Thomas J. Kowalski, Antonio Maschio and Samuel H. Megerditchian Date received (in revised form): 17th March, 2003
Abstract The USA, Europe and Japan dominate intellectual property. The patent offices of these three economies issue the vast majority of the world’s patents and harmonisation has been a key initiative in recent years. Corporate and academic leaders, inventors and practitioners should be aware of the examination practices in all three patent offices.
Keywords: USPTO, EPO, JPO, patents, harmonisation, patentability, trilateral initiative
Thomas Kowalski Frommer Lawrence & Haug LLP, New York Office, 745 Fifth Avenue, New York, NY 10151, USA Tel: +1 212 588 0800 Fax: +1 212 588 0500 E-mail: [email protected]
The opinions expressed herein are the personal opinions of the authors, and are not to be considered the opinions of Frommer Lawrence & Haug LLP, D. Young & Co. or any of the firms’ clients. Further, nothing in this paper is to be construed as legal advice, a substitute for legal advice, or as positions/strategies etc taken/employed in, or suitable for, any particular case or set of facts.
It is unquestionable that the USA, Europe and Japan dominate the intellectual property (IP) landscape. Indeed, statistics show that the patent offices of these pillars (the United States Patent and Trademark Office (USPTO), the European Patent Office (EPO) and the Japan Patent Office (JPO), respectively) issue nearly 90 per cent of the world’s patents.1 It is not coincidental, however, that the patent offices of the three most powerful global economies issue the most patents. The consensus among corporate, academic and political leaders throughout the USA, Europe and Japan has long been that IP is an extraordinarily valuable asset: one that not only significantly affects revenue, but also directly influences shareholder value and academic prestige. Additionally, since a patent is an enforceable privilege of limited duration, the corporate and academic elite readily understands that a well-prosecuted patent portfolio affords considerable strategic leverage in the marketplace, especially if the patents are directed to pioneering
technologies in the pharmaceutical or biotechnology sectors. Therefore, the public has a vested interest in understanding the examination practices of all three patent offices. And although the three systems essentially share the same basic rules for patentability, both substantive and procedural differences exist. It is the appreciation of these systems that will enable applicants and practitioners to wisely prosecute patent applications.
OVERVIEW OF PATENTABILITY IN THE USPTO, EPO AND JPO The dominant policy objective of patent law, whether in the USA, Europe or Japan, is the balancing of two conflicting equitable interests: rewarding an inventor by granting patent exclusivity while, simultaneously, stimulating competition in the art in which the patent monopoly falls. The exclusivity enj
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