This week, US Congress ratified a negotiated free trade agreement with (South) Korea. The agreement includes a major section on intellectual property law.
Agreed to terms include the requirements that each nation:
- Make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application.
- May only exclude inventions from patentability when it is necessary to protect public order or morality; or when the invention is a diagnostic, therapeutic, and surgical procedure for the treatment of humans or animals. However, the fact that a particular practice is against the law of a nation may not be used as a reason to deny patentability.
- May only revoke a patent on grounds that would have justified a refusal to grant the patent.
- Shall not allow third-party oppositions of pending patent applications (pre-grant).
- Will offer at least a 12-month pre-filing grace period for disclosures authorized by or derived from the patent applicant.
The agreement must also be ratified by the Korean National Assembly. Read the US-Korean agreement here: /media/docs/2011/10/asset_upload_file273_12717.pdf. US Congress also passed similar agreements with the Latin American Nations of Panama and Columbia.
Design Registration? The agreements all additionally call for the parties to “make all reasonable efforts to ratify or accede to … the Hague Agreement Concerning the International Registration of Industrial Designs (1999) and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989).” The United States is not currently a signatory to either of these agreements.
Further agreements in the air: The US passage of the Leahy-Smith America Invents Act has been taken as a signal that further harmonization efforts may also be successful. In particular, it appears that many nations would be willing to implement a new US-style grace period at least if they are limited activities subsequent to a non-commercializing public disclosure authorized by or derived from the patent applicant or inventor.