PLT Sent to U.S. Senate for Ratification

IPO Daily News reports that on September 5, 2006, President Bush referred the Patent Law Treaty to the U.S. Senate for ratification with one reservation:

Pursuant to Article 23, the United States declares that Article 6(1) shall not apply to any requirement relating to unity of invention applicable under the Patent Cooperation Treaty to an international application.

The Patent Law Treaty entered into force on April 28, 2005 and is open to States members of WIPO and/or States parties to the Paris Convention for the Protection of Industrial Property and certain intergovernmental organizations. The U.S. signed the agreement on June 2, 2002, but has been slow to ratify.

In contrast to the Substantive Patent Law Treaty (or "SPLT"), which is aimed at at harmonizing substantive points of patent law, the Patent Law Treaty (or "PLT") relates only to formalities. The PLT generally sets forth the maximum procedural requirements that can be imposed on patent applicants, and in addition, provides standardized requirements for obtaining a filing date from which no party may deviate.

For example, the PLT requires that the Office of any Contracting Party must accord a filing date to an application on compliance with three simple formal requirements:

1. an indication that the elements received by the Office are intended to be an application for a patent for an invention.
2. indications that would allow the Office to identify or to contact the applicant;
3. a part which appears to be a description of the invention.

No additional elements can be required for a filing date to be accorded. In particular, a Contracting Party cannot require one or more claims or a filing fee as a filing date requirement. As mentioned above, these requirements are not maximum requirements, but constitute absolute requirements, so that a Contracting Party would not be allowed to accord a filing date before not all those requirements are complied with.

The PLT also provides procedures for the avoidance of unintentional loss of substantive rights as a result of the failure to comply with formality requirements or time limits. These include the obligation of Offices to notify the applicant or other concerned person, extension of time limits, continued processing, reinstatement of rights and restrictions on revocation/invalidation of a patent for formal defects, where they were not noticed by the Office during the application stage.

Contracting Parties are allowed to exclude paper communications and to fully switch to electronic communications after June 2, 2005. However, even after that date, they will have to accept paper communications for the purpose of obtaining a filing date, and for meeting a time limit.

In the United States, treaty ratification requires a two-thirds majority approval of the U.S. Senate. This often makes it relatively difficult to rally sufficient political support for international treaties.