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Old 17th January 2012, 10:25   #1
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Default GATT, WTO and patents

Recently I read a comment by some inventor (of a bogus invention, US patent office refused to grant him a patent) that he has taken a patent in Mexico and thanks to GATT and WTO that would be valid in USA.

I always thought one needs to obtain patents in all countries where one intends to enforce those, but looks like that isn't the case.

Can someone with good knowledge of IP laws elaborate?

Basically, if I take a patent in India but do not apply for on in USA, will it be enforceable in USA later?
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Old 17th January 2012, 14:20   #2
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Default Re: GATT, WTO and patents

Interesting - can you link where you read the comment?
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Old 17th January 2012, 15:58   #3
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Default Re: GATT, WTO and patents

I've read about apple doing the same thing regarding a few of their trade marks (names of products, etc), so i believe its possible although i'm no expert and have no idea about the technical details of how or when this can be done.
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Old 18th January 2012, 01:47   #4
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Default Re: GATT, WTO and patents

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Originally Posted by sudev View Post
Interesting - can you link where you read the comment?

I read it recently (though the article is pretty old) on a book review of Voodoo Science (I think). Some cold-fusion inventor was deriding USPTO and made a comment that it didn't matter that USPTO refused his application because he has already obtained the patent in Mexico and thanks to GATT and WTO it was valid in US too.


Getting patents in India is really cheap - though very long drawn (usually people apply to USPTO after applying to Indian patents and receive it in US first), so for Indian inventors this can be a good thing.
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Old 18th January 2012, 02:28   #5
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Default Re: GATT, WTO and patents

The statement may not be completely correct. Patents are typically only enforceable nationally. But there are processes by which a single application would lead to a patent being filed across a number of countries (140ish) simultaneously, and hence infringements can be enforced in each country.

To answer your question, GATT primarily changes the way in which national patents are granted i.e. an invention (for which patent is being filed) would not be an invention if internationally it has been invented before. My IP law is rusty but if i remember correctly, then that is the case.
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Old 19th January 2012, 16:40   #6
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Default Re: GATT, WTO and patents

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Originally Posted by vina View Post
Recently I read a comment by some inventor (of a bogus invention, US patent office refused to grant him a patent) that he has taken a patent in Mexico and thanks to GATT and WTO that would be valid in USA.
That view is incorrect. Patents have national, not international jurisdiction even after WTO.

Quote:
Originally Posted by vina View Post
I always thought one needs to obtain patents in all countries where one intends to enforce those, but looks like that isn't the case.
What you always thought is the correct view. You need to obtain patent in all the countries where you want to protect your invention.


Quote:
Originally Posted by vina View Post
Basically, if I take a patent in India but do not apply for on in USA, will it be enforceable in USA later?
No, it will not be enforceable in USA unless you obtain a separate US patent.

Under the Paris Convention and the Patent Cooperation Treaty (PCT), there is now an international patent filing procedure whereby one can file an "international" application (also called PCT Application) whereby your PCT application is subjected to (1) prior art search & (2) preliminary examination by international authorities chosen by you. This international application is separate from your normal patent application filed in the Indian patent office for grant of Indian patent. The international application can be filed in the same office within a specified time period of the filing the Indian application but would still benefit from the "priority" date of the Indian application.

This system enables a common, unified search and preliminary examination of your invention by an international authority of your choice. However, once the international search and prelim. examination is complete and assuming that your application has been cleared, you will be required to file a separate application in each country where you want patent protection. This is the so-called "national" phase of your international application. Since your application has been already subjected to prior art search and prelim. examination by an international authority, the foreign patent offices will not subject your application to another search during the national phase and would straightaway proceed to detailed examination, thereby saving time and money.

In the old system, you had to file a separate application in each country, every application being independently subjected to the same processes in different patent offices. The PCT system avoids unnecessary duplication of work so far as the intial processes (search and prelim. exam) are concerned. However, beyond that, the system is the same and as of now, there is no "international" patent anywhere in the world.

India joined the PCT in 1998 and so Indians can benefit from this simplified procedure.

Hope this makes things clearer.
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