Governing Laws

The grant and enforcement of patents are governed by national laws, and also by international treaties, where those treaties have been given effect in national laws. Patents are, therefore, territorial in nature.

Commonly, a nation forms a Patent Office with responsibility for operating that nation's patent system, within the relevant patent laws. The Patent Office generally has responsibility for the grant of patents, with infringement being the remit of national courts.

There is a trend towards global harmonization of patent laws, with the 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. Conformity 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 developing nations, which may historically have developed different laws to aid their development, enforcing patents laws in line with global practice.

A highly notable international convention related to patents is the Paris Convention for the Protection of Industrial Property which was initially agreed in 1883. The Paris Convention sets out a range of basic rules relating to patents, and although the convention does not have direct legal effect, the principles of the convention are incorporated into all notable 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 preserves 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 fundamental to modern patent usage.

The authority for patent statutes in different countries varies. In the United States, the Constitution empowers Congress to make laws to "promote the Progress of Science and useful Arts..." The laws Congress passed are codified in title 35 of the United States Code and created the Patent and Trademark Office. In the UK, substantive patent law is contained in the Patents Act 1977 as amended.

In addition, there are international treaty procedures, such as the procedures under the European Patent Convention (EPC) (administered by the European Patent Office (EPO)), and the Patent Cooperation Treaty (PCT) (administered by WIPO and covering approximately 133 countries worldwide), that centralise some portion of the filing and examination procedure. Similar arrangements exist among the member states of ARIPO, OAPI, the analogous treaties among African and Asian countries.

As explained in more detail in European patent law, the EPC covers approximately 30 European states, including all European Union states except Malta. The EPO examines and grants "European patents" which, subject to minor formal requirements, then acquire the same status and force as national patents under the national laws of such EPC contracting states as the applicant designates. The EPC remits almost all substantive issues of European Patents, post-grant, to national law. The PCT does not provide a central, international, granting authority, but rather allows a number of the common procedural steps required to obtain a patent to be carried out for a single application.

The PCT system is therefore an efficient route to obtaining a patent in a large number of countries as many of the steps need only be performed once. A PCT application also delays many of the highly expensive stages of prosecuting a patent.