By
Donald Zuhn —

On
Friday, the World Intellectual Property Organization (WIPO) announced that the
member states of WIPO's Patent Cooperation Treaty (PCT) had endorsed a series
of recommendations for enhancing the international patent system.  The announcement came at the conclusion
of PCT Working Group discussions that took place from June 14-18, 2010.  WIPO Director General Francis Gurry
noted that the recommendations would "go a long way in creating the
conditions that will enable WIPO member states to gain greater benefits from
the international patent system."

The
recommendations that the member states endorsed were set forth in a
"fairly lengthy" 66-page, 212 paragraph WIPO study entitled "The
Need for Improving the Functioning of the PCT System," which the PCT
Working Group had commissioned in May 2009.  The study examines how the PCT has measured up to its stated
aims, and is based on response to a Questionnaire the International Bureau distributed
to Offices, Contracting States, and other interested parties in November 2009.  The Executive Summary of the study
states that:

The Working Group decided that efforts
should continue on improving the PCT, noting that the system can and should
function more effectively on behalf of all stakeholders, within the existing
legal framework, without limiting the freedom of Contracting States to control
substantive patent law issues as well as national search and examination
procedures.

Among
the "simple changes" the study proposes are to allow third parties to
comment on pending applications, make national search reports available, and
encourage applicants to file higher quality applications and correct defects
before entering the national phase.

Discussing
the track record of the PCT, the study declares that:

Almost 32 years after the beginning of
operations of the PCT system, it can be stated that not only have most (though
not all) of the expectations of the founders of the PCT been met, many have
been exceeded to an extent which the founders of the PCT could not have envisaged.

The
study notes that the PCT has expanded from 18 member states as of June 1, 1978
to 142 member states today.  (The
original member states were Brazil, Cameroon, the Central African Republic,
Chad, the Congo, France, Gabon, Germany (Federal Republic of), Luxembourg,
Madagascar, Malawi, Senegal, the Soviet Union, Sweden, Switzerland, Togo, the
United Kingdom, and the United States of America.)  The study also notes that while a "modest" 636
international applications were filed in the first six months of PCT operations
in 1978, more than 1.8 million applications were filed between 1978 and 2009,
and 155,900 applications were filed in 2009 alone.

The
study sets forth eleven problems or challenges facing the PCT, including
worldwide application backlogs, the timeliness of the International phase, and
examination quality.  With respect
to the backlogs, the study states that "backlogs in many (but by no means
all) Offices of PCT Contracting States continue to increase, both in terms of
absolute numbers and in terms of pendency."  The WIPO announcement regarding the study pegs the worldwide
backlog at roughly 4.2 million unprocessed patent applications.  As for the timeliness of the
International phase, the study notes that 26% of international applications
were published without an International Search Report (ISR) in 2009 and 6% of
all ISRs were delivered more than 30 months from the priority date (i.e., at a time when the international
application might already have been required to enter the national phase).  Finally, with respect to examination
quality, the study acknowledges that "[t]he patent system generally is
frequently criticized for allowing too many patents to be granted which are
invalid according to the relevant national laws as well as for the time and cost
involved in challenging patents which are believed to be invalid."

The
final 24 pages of the study are devoted to discussing and evaluating a
number of
options for addressing the problems and challenges facing the PCT.  The
WIPO press release notes that among the options specified in the study are measures to help reduce the worldwide application
backlog and improve the quality of granted patents, including, for example, the
deployment of computer systems that allow third parties to alert patent offices
about information relevant to patentability.  In addition, the study recommends that other electronic systems
be developed to support technology transfer by promoting the licensing of
inventions and helping to identify information about technologies that are in
the public domain.