Patent Harmonization, Protectionism and Legislation

This essay raises questions about the Patent Harmonization Treaty. addressing the overall direction of harmonization in this country and the processes that are being applied to the harmonization effort. Section I of the essay compares the underlying goals of patent harmonization with those of the current United States patent system. The article contends that the legal rules relating to patents in this country evidence a specific intent to promote domestic industry. The aims of harmonization, in contrast, are fundamentally different. To be valid, then, patent harmonization may require a basic shift in the social consensus in this country concerning the use of patents. Section II examines the lawmaking processes that WIPO has used to arrive at the current text of the Patent Harmonization Treaty. The essay concludes that when viewed from the perspective of the national interests of the United States, WIPO's mechanisms have been neither careful nor inclusive. Section III addresses the general feasibility of using legislative lawmaking methods to define the law of patents in this country. It argues that proper efforts to legislate harmonization are likely to be difficult and time consuming. The great majority of the current law of patents in the United States is the result of significant common law development. Recent legislation relating to patents has shown that legislated rules of patent law often have unintended effects. The current harmonization effort, moreover, is much more comprehensive than any patent legislation we have attempted to date. As a result, there are substantial reasons to decline the opportunity to design a harmonized set of patent laws through legislation