PCT II – A step closer to an international patent?

The United States Patent and Trademark Office has proposed to WIPO a comprehensive overhaul of the PCT system, dubbed PCT II, which would further internationalise the patent application system.

PCT II would involve an application being made to a national patent office, which would then pass the application on to two different authorities, which would each produce a search report.  The two reports, and any prior art submissions from the applicant and third parties, would then be passed on to a third authority.  The third authority would carry out a national search, and then perform an international and national examination using all three searches and the prior art submissions.  The third authority would then produce a PCT II Patentability Report.  If the report is positive, the applicant would then get automatic patent protection in all PCT States.  To preserve national sovereignty, each State will have the opportunity to reject the Report within a certain timeframe.

PCT II represents a major shift from PCT I.  It represents a centralisation of patent registration away from national offices towards a handful of authorities designated by WIPO.  While the concern about centralisation is mitigated by the ability of a PCT State to reject the Patentability Report, it must be assumed that this would be the exception to the norm otherwise the system would lose its raison d’etre.  Furthermore, there may be practical difficulties, such as language constraints, with only having three authorities perform the required searches that would otherwise be carried out by each national office.  Whether or not PCT II receives international support will likely depend on the extent to which these concerns can be overcome.


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