U.S. Legal Modification for the Universalized Patent System

The United States government has decided to significantly modify its patent law. The first-to-invent principle, which has lasted for more than 140 years, will be replaced by the first-to-file system, the principle used in Europe and Japan. If patent law is universalized, there will be fewer international conflicts over patents, rendering businesses’ overseas expansion easier. Therefore, we shall welcome this legal revision.

The first-to-invent principle is a patent system which grants the patent to the first person to achieve an invention; the United States has been the only developed country to implement it. On the other hand, the first-to-file principle awards a patent to whomever request it first and is a common rule among industrialized states.

In the U.S. system, because there are cases where inventors claim patent rights after patents have been granted and no public disclosure system for patents exists at the same time, conflicts have always occurred. Also, because the patent term is 17 years after the day of patent acquisition (not the day of filing), “submarine patents,” through which a large amount of royalties can be charged by prolonging the concealed reviewing process while waiting for the technology to spread, become a problem.

Japan and European countries pointed out such problems of the U.S. system and thus have requested a legal transition to the first-to-file principle since 1985. However, the U.S. government’s stance has shifted back and forth, facing opposition from small and medium-sized domestic companies with a worry over application costs and the pharmaceutical industry, which would prefer a longer patent protection.

This legal modification is based on the five-year-old agreement between the patent authorities of Japan and the United States, which aimed to standardize their patent systems. As seen in patent conflicts over smart phones, IT industries — which put emphasis on strategies over international intellectual properties — encouraged the government to make such a change.

Upon the revision, what becomes important now is how to frame a global patent system that mutually recognizes patents. Although a patent obtained domestically is recognized internationally through the Patent Cooperation Treaty, the reviewing process varies from one country to another. Further standardization is also required in areas like inventions’ novelty or patents’ coverage.

Developing countries call attention to their strategies over intellectual properties; for example, China is filing a patent application for railroads. It could well lead to new international flashpoints if emergent nations horrendously grant patents in a similar fashion. Therefore, standardization with the developing world is also necessary.

America’s transition to the first-to-file principle was Japan’s long-cherished wish. Now that it is realized, producing professionals excelling in building strategies about intellectual properties and patents shall be the next step for both the Japanese government and industries.