Substantive patent law harmonisation background

The issue of substantive patent law harmonisation has been subject to international consideration for many years. The most recent effort, the attempted Substantive Patent Law Treaty (SPLT) Reduced Packaged, stalled when agreement could not be reached.

A traditional problem with attempts to harmonise patent law has been the fundamental difference between the US and many other patent systems - namely the first-to-invent vs first-to-file issue. However, the US system now looks poised on the brink of change with a bill (now renamed the America Invents Act) passing through Senate. The Bill if passed by the US House of Representatives will move the US to a first-to-file system in concordance with Europe and most other jurisdictions, though differences in law and practice will remain.

Coincidently with the US Bill passing the Senate, the USPTO, under David Kappos, have been pursuing international engagement on the issue of harmonisation.

It is still not clear whether the US bill will come into force, but if it does it may mean that there is greater international flexibility on the issue; however, it is still not clear in what fora harmonisation might be pursued.