Resolving Patent Disputes in a Global Economy
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Description
As with other businesses, the patent industries have discovered the global marketplace. In the last dozen years, patent applications filed in countries other than the inventor’s place of residence have increased annually by 7.4% worldwide, and over the last two decades, licensing revenues in the OECD states have grown ten-fold. To a large extent, these developments stem from a dynamic familiar to other sectors of the economy: as countries grow wealthier and more sophisticated, as tastes and preferences converge, as transportation costs decline, foreign goods become more familiar, attainable, desirable and available. For the technology community, there are other factors that are also at play. The inclusion of the TRIPS Agreement within the World Trade Organization (WTO) framework means that patents are now readily available in many nations and across a broad array of creative endeavors. Intellectual production is becoming increasingly collaborative, involving inventors of different nationalities, working in a multiplicity of locations. Technology itself is changing. Digital products, such as software, can be transmitted around the globe instantaneously. There are also new developments, such as radio navigation systems, where patent claims are ‘divided’ in the sense that they describe conduct that can span jurisdictions. Although the practice of patented technologies is now international, patent law and patent rights remain territorial. Accordingly, firms operating in, or worried about competition from, foreign jurisdictions need multiple patents to protect their interests. As the numbers suggest, acquisition of foreign patents is becoming easier. One hundred and fifty countries are currently members of the WTO. While examination and registration are required in each country where protection is sought, various international arrangements facilitate that process. The Patent Cooperation Treaty (PCT) offers preliminary examination functions to its 137 signatories. Regional agreements go even further. For example, the European Patent Convention (EPC), which as of 2008 will have 33 members including all of the members of the EU, centralizes examination (and also deepens the degree of harmonization). Much harder are the issues that arise in connection with dispute resolution. When markets were mainly local, it was clear that disputes would be resolved, and judgments would be enforced, in local courts, under local law. However, the advent of global exploitation makes this approach cumbersome, unpredictable, costly and—in some cases—unfair. Consider, for example, a computer programmer (let us call him Developer, or D), working from his residence in the nation of Xandia, who reverse-engineers software that a producer, P, has patented in several nations. D creates an independent product that simulates all of the original’s functionality and sells access to it from his Internet site, which is hosted on a server in Patria. From there, it can be utilized globally and ‘mirrored’ (duplicated) by sites elsewhere. If P wants to enforce his patent to enjoin utilization and receive compensation for past infringements, where should P sue?
Source Publication
Patent Law and Theory: A Handbook of Contemporary Research
Source Editors/Authors
Toshiko Takenaka
Publication Date
2009
Edition
1
Recommended Citation
Dreyfuss, Rochelle C., "Resolving Patent Disputes in a Global Economy" (2009). Faculty Chapters. 1170.
https://gretchen.law.nyu.edu/fac-chapt/1170
