The PCT: A “forgettable” convention??

One of my PCT alerts today included a CBS News blog on green issues… Curious about why a green-issues blog would refer to the Patent Cooperation Treaty (PCT), I had a look.

I was amused to find the blogger placing the Patent Cooperation Treaty in the same category as the Convention on Psychotropic Substances – a category he refers to as “forgettable” treaties “that achieve some progress but essentially serve to remind signatory nations that they passed the same national laws”.

An interesting interpretation, to say the least!

The number of applications filed via the PCT has increased every year since PCT applications were first accepted in 1978. Over 1.6 million applications have been filed since then (to 2008) and over 160,000 applications were filed last year, according to WIPO.

Excluding the recent international financial turmoil that has affected filing of all sorts of patents (local, direct foreign and PCT), the annual growth rate of filings via the PCT has averaged something like 5% per annum for the last decade.

In the absence of the PCT, what would have happened to all these applications? Some would have been filed only in the home country of the applicant. Some would have added perhaps one or two foreign countries. Some would have been filed in a larger number of foreign countries, with the applicant betting a very substantial amount of money that no prior art would surface after all the foreign filings fees, translation charges and foreign attorney fees had been spent. In all these cases, the decision on how many countries to file in must be made an average of 18 months earlier than via a PCT application.

You see, without the PCT and its 30/31 month national phase deadline, there is simply no practical way for applicants to delay (beyond the 12 month Paris Convention period) the substantial costs of foreign applications. They’d either have to limit themselves to a smaller number of applications or commit a huge amount of money very early in the commercial life of the invention to cover a large number of countries at relatively great risk.

As for the PCT “essentially [serving] to remind signatory nations that they passed the same national laws”… well, let’s just say that is not my understanding of the intent or practical impact of the PCT.

And in any event, I suspect many of the countries presently protesting that WIPO is attempting to use the PCT to standardise national laws would vigorously dispute such a conclusion.

Now I’ll admit intellectual property isn’t that interesting a subject for most people. For some it holds an interest mainly because they disagree with some aspects of it to one extent or another. The PCT mightn’t even be as interesting as the psychotropic drugs the CBS’s green blogger lumped it in with. But to suggest the PCT is “forgettable” ignores what the PCT has achieved for inventors and technology businesses of all sizes over the last thirty years.


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