The Patent Cooperation Treaty (PCT), also widely referred to as the International Patent System, offers a common application mechanism to the inventors and innovators who wish to protect their unique inventions across the globe. The PCT is exceedingly beneficial as it enables the innovators and inventors to have complete access to an International Search Report, which offers a non-binding opinion on the patentable subject matter and patentability criteria. It allows the inventors to know and understand whether their unique invention has a substantial chance of getting a patent granted or not. It also allows them to come across the amendments, if any, for further differentiating the unique invention from the current state of the art and increasing the chances of receiving a patent.
Another procedural perspective is that the PCT has created a process of standardization of relevant forms, proceedings, and deadline across the Intellectual Property Offices of all the contracting parties – culminating in a total of 30-month limit for the patent applicant to choose the nations where the Patent Protection for his or her unique invention should be sought (counting from the date of the first application that is the priority date).
However, a crucial point in this scenario is that not all countries around the world have ratified the PCT. At present, it has a total of 153 contracting parties, while the UN has a total of 193 full members. Therefore, all the benefits mentioned above can’t be applied across the globe, specifically the 30-month limit for deciding the nations where patent protection is sought.
The countries or regions that don’t belong to the PCT as of April 2020 include the following:
- Afghanistan, Andorra, Argentina, Bahamas, Bangladesh, Bermuda, Bhutan. Bolivia, Burundi, the Democratic Republic of the Congo, Cape Verde, East Timor, Ethiopia, Fiji, Guyana, Haiti, Iraq, Jamaica, Lebanon, Macau, Maldives, Mauritius, Myanmar, Nauru, Nepal, Pakistan, Paraguay, Solomon Islands, Somalia, South Sudan, Suriname, Taiwan, Tonga, Uruguay, Vanuatu, Vatican City, Venezuela, Yemen, Western Sahara.
If a country is not a member of the PCT, it can use the Paris Convention for the Protection of Intellectual Property (1883) during the time of defining the internationalization strategy. Although the Paris Convention has no procedure for international examination, it offers a 12-month limit starting from the priority date for filing a Patent Application abroad.
As of 2020, the Paris Convention indeed has a much broader geographical scope, with a total of 177 countries. Using the Paris Convention should undoubtedly be deemed as a priority if the patent applicant is looking forward to safeguarding his or her unique invention in South America, namely, Bolivia, Argentina, Paraguay, Guyana, Venezuela, or Uruguay. While these countries are not a part of the PCT, they have ratified the Paris Convention.
Other countries, which are not the members of the Paris Convention, apply its provisions, including the 1-2 month limit corresponding to submitting the patents first filed abroad. In this category, Cape Verde is a notable country as its national Intellectual Property code recognizes the priority rights. Irrespective of a country not being a contracting party to the Paris Convention, it can still very much be argued that the provisions of this treaty remain applicable as a result of article 2 of the TRIPS agreement. TRIPS is a mandatory legal agreement among all the member countries of the World Trade Organization (WTO). Cape Verde is an example in this case as well since it is a member of WTO.
Despite the adherence to the international treaties, a patent applicant seeking worldwide patent protection can still go through one last hurdle, which corresponds to the fact that some countries don’t have Intellectual Property Laws or patent rules and regulations. Countries including Suriname, East Timor, Eritrea, Maldives, and Suriname have no local laws concerning patent grant and enforcement. Publishing Cautionary Notices in the leading local newspapers of these countries regularly, along with an all-inclusive description of the unique invention, can indeed act as a deterrent for the infringers or violators. The same can also be efficiently used as proof at courts of law that use broader legal institutes like civil responsibility or liability claims. These countries shall adopt the IP laws as well, slowly and gradually, like Myanmar recently approved its first Patent Act.