Despite treaties, like the Patent Cooperation Treaty or TRIPS, patent systems across the world vary in operation and legal framework.
The American patent system is quite different from that of the UK, Europe or indeed many systems in the world. This has always seemed odd, considering the prevailing internationalism of intellectual property law and greater moves towards harmonisation in other legal fields after the birth and growth of globalisation (often read indeed to mean Americanisation).
However moves may be afoot to alter this anachronistic system. Patent reform legislation was introduced in Congress last year, Patent Reform Act of 2009, similar to the Patent Reform Act of 2007, as the result of growing concern in the United States over patent quality, the high cost of patent litigation, and also the perceived need for patent harmonization with the rest of the world.
One wonders what the reform might touch. In the US currently:
it is possible to obtain patents for software (not likely in Europe and highly unlikely in the UK)
it is possible to obtain a patent for a business method in the US
the system works on a first-to-invent basis rather than a first-to-file basis. This means the person to claim an invention must be the inventor. Seemingly fair but it is possible that filing a patent will not prevent others from claiming they have rights over the invention. The process of decision who invented first usually involves examining laboratory logbooks, establishing dates for prototypes, and so on. If the person who filed later is found to have invented earlier, he may be awarded the patent
there is a grace period of one year. In the UK and Europe and many countries there is no grace period
typically only the Patent Office can bring (ex parte) opposition proceedings on a patent
filing a patent has not automatically entailed publication
there is a duty of candour, which means an inventor has a duty to reveal all prior art of which he is aware
the law requires the inventor to include the best way to practice the invention in the specification so no key features can be kept secret
Organisations lobbied Congress in opposition to various aspects of the 2007 bill arguing that the bill weakened the rights of patent holders and/or favoured larger and foreign corporations. As a result they argued that this would in turn will stifle American innovation and contribute to the outsourcing of U.S. jobs to other nations.
Consequently in the Patent Reform Act 2009 the more controversial parts have been removed.
However there remain infringement related measures that give defendants better powers to fight such actions and limit damages and there may be stricter criteria for what is known as wilful infringement. In such a case the patent owner would be required to present compelling evidence that an infringer acted with objective recklessness, intentionally copied a patented invention with knowledge it was patented, and that the patentee gave the infringer clear written notice of their violations. In the UK we worry about such letters as legal advisers can be slapped with a suit for groundless threats under section 70 of the Patents Act 1977.
In addition the US is finally considering moving to a first to file system.