Will the American patent law system align itself closer to the system in Europe in the near future? US president Donald Trump’s arrival to office has refocused attention on this subject. What influence will the new president have on American IP policy? Tamara Elmore, a European patent attorney and American patent agent, sheds some light on the issues.
Contrary to Dutch patent law, which is rarely affected by changes in the political landscape, the American president can exercise a major influence on American patent law. So, which changes can we expect under the Trump administration? Elmore explains: ‘IP blogs haven’t hesitated to speculate on possible scenarios, but it is difficult to predict what will really happen. Most experts expect the Trump administration to be pro-patent, but believe that changes won’t simply be made to better align the American system with other systems across the world. It’s likely that any changes made will serve mainly to strengthen the American system itself. Only time can tell.’
USA vs Europe
Many patent system users hoped that the reform measures under the Leahy-Smith America Invest Act (AIA) in 2011 would bring the American system more in line with that of other (European) countries. Even though the changes did bring alignment of European and American patent practice for some aspects, major differences remain. Elmore explains: ‘Contrary to patent law as applied by the European Patent Office, American patent legislation still allows for a grace period, for example, for previous disclosures by the inventor him or herself.’ In addition, the validity period of an American patent – which is a standard 20 years from the effective date in Europe – can be shortened or extended depending on various procedural rules.
Higher cost in the US
Ms Elmore also highlights another difference between the European and American systems: the costs of a procedure. Differences in procedure and argumentation rules, together with cost distribution, mean that procedure costs in the US are higher than in Europe. The reforms under the AIA introduced a ‘post-grant review’ (PGR), allowing third parties to contest the validity of patents. Many people were hopeful that PGRs, just like European oppositions, would weed out weak patents and prevent unnecessarily high procedure costs. However, it became apparent in practice that the PGR rules differed significantly from the European opposition rules. The result is that the costs of a PGR usually run into the hundreds of thousands of dollars.’
European patent attorney and American patent agent Tamara Elmore has recently been appointed as a senior associate at V.O. Patents & Trademarks.