We Celebrate What 40 Years of PCT and EPO Have Done for the Patent System

We salute the originators and implementers of the Patent Cooperation Treaty (PCT) and the European Patent Convention (EPO) on their fortieth anniversary (which occurred on June 1, 2018) and look forward to continued use of both long into the future.

The 1960’s and 70’s were a time when the need to secure patent protection on a large scale and the diversity between patent laws in different countries resulted in increasing concerns about costs. The needs of industry to control such costs led to two major developments (both of which came into operation on June 1, 1978): The PCT and the EPO.

Both had relatively slow starts.

Initially, the Patent Cooperation Treaty had only 18 member countries and although it permitted delay of national phase entry and deferred a large part of patenting costs, until twenty or thirty months from a claimed priority depending on the nationality or residence of the applicant, extra steps and costs were required if one wished to delay such national phase entry until later than twenty months from the claimed priority even in countries where a thirty month term applied. Over the years however, amendments to the Treaty (and regulations made under it) have made the PCT procedures much more useful. For example, making it the norm to be able to delay national phase entry to thirty months from the earliest claimed priority, greatly simplifying the formalities required and by use of a supplementary search permitting applicants to obtain search reports from more than one search authority before incurring the costs of national phase entry. These changes have resulted in increased membership to 152 member countries in the Treaty and what is likely the preferred method of securing international patent protection in most situations.

Similarly, the use of the European Patent Convention by providing for a single examination in the European Patent Office that can apply to patents in all member countries is now the norm for securing patent protection in Europe (regardless of whether the countries of interest are in the European Union or not). To some extent, this is accidental as the original plan was to have a central patent office and harmonized European patent law for the member countries of what was then the European Common Market. At that time, this consisted of Germany, France, Italy, The Netherlands, Belgium and Luxembourg. And the United Kingdom was negotiating to join (and was expected to become a member) before the patent plan was adopted. However, France then vetoed the United Kingdom’s application for membership of the Common Market and the idea developed that perhaps it would be better to have a common patent examination authority for any European country that wished to join and not just members of the Common Market. And so the European Patent Convention was born. Today, the Convention has 37 full members and agreements with a further six countries (not all in Europe) in which patent applications approved by the European Patent Office may be validated or to which they may be extended. Adoption of the European Patent Convention not only provided a means for reducing the costs of securing patent protection in Europe but also resulted in substantial, although still not perfect, harmonization of substantive patent law between the member countries as it was impracticable to have one law apply to patents granted by the European Patent Office and a national patent office.