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International patent classification

Author: Danielle Carvey

The International Patent Classification (IPC), administered by the World Intellectual Property Office (WIPO), is a hierarchical system for use in relation to the uniform classification of patents and utility models.

The main objective of the IPC is to establish an effective search tool through which users can retrieve relevant patent documents such as applications and specifications of granted patents et al. Such documents may be used, for example, to assist in the establishment of novelty and assessment of an inventive step or non-obvious element of an invention.

Moreover, the IPC also facilitates selective dissemination of relevant patent and utility model information across users of the system, and provides a basis on which statistical analysis on intellectual property and technological development can occur.

Established by the Strasbourg Agreement of 1971, the IPC contains information on patent publications from all Contracting States privy to the system, as well as most other jurisdictions, making it the most widely used patent classification system worldwide. Each patent or utility model publication is assigned one or more classification symbols which indicate the subject, or technological area, to which an invention pertains, allowing users of the IPC to efficiently distinguish details of patent publications. By utilising language-independent symbols, the classification system allows for the multi-jurisdictional use of the IPC in a uniform manner.

The classification system is split into eight alphabetised sections of subject areas for patents and utility models, namely:

A. Human necessities

B. Performing operations and transportation

C. Chemistry and metallurgy

D. Textiles and paper

E. Fixed constructions

F. Mechanical engineering, lighting, heating, weapons and blasting

G. Physics

H. Electricity

Each of these sections is then divided into classes and subclasses, as well as groups and subgroups, each possessing its own alphabetical or numerical code. The corresponding letters and numbers come together to form an overall symbol to which patent publications can be assigned, for example in the format of A01B 1/00.

The "hierarchical" element is demonstrated by the tiered format of section, class, group etc. Typically, a patent examiner will assign the classification to a patent application at the most detailed level possible in accordance with their technical content and subject matter.

The IPC is reviewed annually to reflect relevant technical developments, with the newest version being enforced on January 1st of each year. At present, the classification system is in use in over 100 countries across the globe, and divides technology into almost 80,000 areas. The IPC also details a Catchword Index, which constitutes a list of 20,000 technical key terms in relation to the appropriate classification placement, provided in both English and French, the two main languages of the system. A detailed version of the index is also provided in English and German by the German Patent and Trademark Office, which contains over 100,000 terms.

Other patent classifications are also in operation, for example, the Cooperative Patent Classification (CPC), managed jointly by the European Patent Office (EPO) and the United States Patent and Trademark Office (USPTO).

The International Patent Classification system, as well as other operational classification models used worldwide, can prove a vital tool for use in the retrieval and assessment of patent documents. If you have any questions regarding the IPC, or are interested in filing a patent or utility model application, please feel free to contact us.

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The process of obtaining intellectual property protection in multiple countries simultaneously can be a long and arduous task. With every jurisdiction enforcing their own respective legislation, the filing requirements, as well as procedures regarding the post-grant maintenance of IP, can vary greatly between countries.

Various treaties have been introduced across the globe to assist in the facilitation of a more efficient process for world-wide IP protection. The most poignant international conventions that assist in this regard are the Patent Cooperation Treaty (PCT) and the Paris Convention Treaty. Whilst they are different in nature they are closely linked, with states obliged to first become a member of the Paris Convention before they are able to join as a Contracting State of the PCT.

The Paris Convention Treaty was signed in 1883, and among a broad range of common rules, it provides for the right to national treatment and the right to priority. The concept of national treatment is a vital one, and ensures that Paris Convention member states afford the same level of patent protection and legal remedies to international applicants and right holders as they would to state nationals, preventing different countries from treating non-nationals unfavorably in relation to IP protection.

The right to priority is also of great importance, ensuring that if applicants file an initial application in one contracting state, they have a period of 12 months to file an application regarding the same invention in any other member state(s) without forfeiting the novelty of the invention, and retaining the priority date from the moment of first filing.

The PCT, on the other hand, provides for an efficient method for the filing of patent applications in multiple countries simultaneously via an "international" application. The PCT does not provide for an "international patent", since patent protection can only be valid within a given national/regional territorial jurisdiction. Rather, it serves as a basis for further national patent proceedings in the countries of the applicants interest, meaning a patent obtained via the PCT route is still national or regional in nature. Subsequently, it is possible for applicants to file an initial application with a PCT receiving office which acts as a basis for subsequent filings in any other designated PCT member states in which the applicant wishes to file. A patent filed via the PCT will have the same effect in the designated states as if it had been filed directly in that jurisdiction.

On balance, there are advantages when it comes to the consideration of whether to utilize the Paris Convention or PCT routes for patent filing and protection.

Whilst both routes typically include the filing of a local application with an office of first filing to obtain a priority date, the Paris Convention affords a period of twelve months for applicants to assess which countries they wish to file in before having to commence the national route of protection. The PCT route on the other hand, means that applications won't enter the international phase until 18 months from the date of first filing, and typically take up to 30/31 months, depending on the designated jurisdictions, for the entering of the national phase.

As such, the Paris route may be beneficial for those who wish to obtain patent protection in a few countries in a smaller amount of time. On the other hand, the PCT may benefit those who wish to make use of a longer time period before they must fulfil the national requirements of the designated states for protection, and to utilize this time period to estimate the chances of successful registration of the invention.

Moreover, whilst the PCT allows for applicants to further file in all PCT signatory member states stemming from the one international application, applicants must file separate, individual applications in the countries of choice if utilizing the Paris route. Additionally, the formality criteria, international search, preliminary reports and international publications are centralized and standardized by the PCT system, whereas the same is not the case when filing through the Paris Convention. It is worth noting, however, that the formal requirements of each member state designated will still need to be met during PCT national phase entry.

When considering whether to file via the Paris route or the PCT, the costs involved may provide a good indication as to which an applicant should choose. Overall, the fees incurred for the PCT may prove more cost efficient if an applicant wishes to file in several different states at the same time, however the upfront costs related to the PCT are relatively high.

Subsequently, if an applicant is only planning on filing for protection in a small number of countries, the Paris route is likely to prove less expensive than the costlier PCT and therefore more cost-efficient. On the other hand, if an applicant intends to file in multiple countries, the PCT may result in a cheaper outcome by incorporating many of the fees all at once. For context, PCT applications typically incur three fees: an international filing fee of 1,330 Swiss francs; a search fee which can range from approx. 150 - 2,000 Swiss francs (ISA dependent); and a transmittal fee depending on the Receiving Office.

Both the PCT and Paris Convention each offer their own advantages for those considering filing patent applications in more than one jurisdiction.

In order for a patent application to be considered as registrable, there are three vital elements that must be satisfied. This trinity of the "three pillars" of patentability requires that the invention claimed in a patent application has novelty, industrial applicability and an inventive step.

The element of novelty, or "newness" for a patent application is therefore crucial. As per the European Patent Convention (EPC), an invention is regarded as novel if it "does not form part of the state of the art".

State of the art is defined as any subject matter relating to the invention to which a patent application relates, which has been disclosed or made available to the public in any manner prior to the patent application filing date. Such subject matter may include a product, process, or any other relevant information regarding the invention claimed.

In the instance that public disclosure had been made for any reason prior to the filing of a patent application, it may be the case that the requirement of novelty is not fulfilled, and the invention contained therein is rendered unregistrable.

On the flip side, patent legislation in many jurisdictions offers a novelty grace period. This constitutes a specific period of time, typically 6 or 12 months prior to the date of filing a patent application, depending on the country. For example, the US and Canada, among others, provide for a 12-month grace period, whereas other countries, such as France and the United Kingdom, afford applicants a 6-month novelty grace period.

A grace period itself ensures that any disclosure concerning the patent application materials or subject matter within that set time period is not seen to be detrimental to the requirement of novelty of an invention.

As typical with any legislation, each jurisdiction sets forth varying conditions upon which an applicant can take advantage of the novelty grace period. Some countries, for example, recognise disclosure as authorized if said disclosure is made at an officially recognized event, such as an official exhibition, or a scientific presentation, so long as such official disclosure is made within the prescribed grace period time limit prior to the filing date. Other jurisdictions may exclude disclosure from the prior art if such disclosure was made in bad faith by a third party, so long as corresponding proof is provided.

If any unauthorized disclosure has been made, it is classified as part of the "prior art". Prior art constitutes anything that is similar in nature to the invention contained within a patent application, and had been disclosed prior to the application filing date.

Prior art can comprise a wide variety of matter, including articles, scientific periodicals, pending patent applications, both commercially available and unavailable products, oral presentations, and even social media content. The only exceptions to any related disclosure being considered as prior art are if the disclosed subject matter is confidential and related to government, trade secrets or other applicable circumstances, or if the material was insufficiently disclosed.

With prior art being a vastly broad concept, it is vital for IP applicants to carefully and closely analyze any potential previously disclosed subject matter to avoid the possibility of their invention being considered as not novel or new. The option of performing a search is highly useful in this regard. For example, a PCT application will be subject to an international search, undertaken by a competent International Searching Authority (ISA), resulting in an International Search Report (ISR).

An ISR details any prior art found by the search which may impact the patentability of the subject matter contained within the international application. A preliminary Written Opinion of the International Searching Authority (WOISA) is also provided, advising whether the invention claimed in the international application appears to meet all three of the patentability criteria. Similar searches can be performed for national and regional patent applications, depending on the jurisdiction.

A Power of Attorney, often abbreviated to POA, is a legal document which provides written authorisation for another party to act on behalf of, or represent, another party in relation to certain affairs or matters. Such matters may include those of legal proceedings, corporate and commercial matters, and even personal affairs, for example, a Lasting Power Attorney (LPA.)

When it comes to intellectual property rights specifically, many applicants and rights holders choose, or are obligated by the applicable national or regional IP legislation, to appoint a legal representative or agent as a third party who will act on behalf of the applicant.

Such legal representatives may include a patent attorney, for example, who would represent the IP applicant or registrant before the IPO and/or courts of the relevant country or region in regard to the assigned patent matters. A POA in this instance would serve as written authorisation for the attorney to act on behalf of the patent applicant in relation to the filing and maintenance of the applicant's patent(s).

A Power of Attorney may also be utilised in intellectual property matters in relation to the development of inventions and patents in the workplace. Instances of this nature may ensue when a company has a POA to act in relation to, or obtain, an employee's inventions that had been created and evolved during their employment.

The requirements in relation to obtaining a Power of Attorney, and for providing proof of the same for use in IP matters, vary from country to country. The law in relation to the use of a Power of Attorney in US Law, for example, states that there are multiple requirements for the obtainment and validity of a POA in the jurisdiction.

As such, in order to constitute a valid POA for a legal entity in the US, it must contain the date of POA execution, and be signed by the principal or by another adult being empowered to execute the document in the principal’s presence and under their direction. Furthermore, a POA in the US must be signed and acknowledged before a notary public or be signed by two witnesses.

In addition to domestic legislation and requirements for obtaining a POA initially, national and regional law also obligates applicants and right holders to adhere to rules before the relevant IPO's in which IP is to be filed or maintained. In some countries, for example, the representative or agent with the POA must be an attorney registered within the jurisdiction in which the IP is filed or registered, however, this obligation is not present for all states.

Further, many jurisdictions require the submission of a document confirming the signatory who has executed a Power of Attorney on behalf of the applicant in order to obtain a filing date for their IP, with some countries also mandating that the POA supplied must be an original paper copy, and be a legalised notarised version of the document in order to be valid, an obligation which is not present in every jurisdiction.

A Power of Attorney is an important and oftentimes vital aspect of the registration and maintenance of IP rights. With international legislation and requirements differing, it is important for IP applicants and right holders to pay close attention to the necessary requirements of POA execution and submission in order to successfully manage their IP portfolio.

A major element of reform and cooperation in the field of intellectual property came in the form of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which was implemented by the World Trade Organization (WTO) in January of 1995.

The TRIPS Agreement is applicable to all jurisdictions which are a party to the WTO, and among a variety of IP related provisions, the Agreement obligates all WTO member states to provide the possibility of patent protection in relation to pharmaceutical and agricultural chemical inventions.

At the time the TRIPS Agreement was enforced, however, the national legislation of some developing countries of the WTO did not allow for the filing of patent applications in relation to agrochemical or pharmaceutical inventions. As a result, the WTO afforded these countries a transitional period of up to 10 years to implement compatible national legislation that would provide for such patent protection, concluding on January 1, 2005. It was from this allowance that the concept of a “mailbox patent” was born.

The WTO obliged the countries which were allowed to delay implementing domestic law in line with the TRIPS Agreement to still accept patent applications from January 1, 1995, despite the fact that a decision on whether to grant patent protection did not need to be made until the end of the 10 year period. This afforded patent applicants the opportunity to still meet the patentability requirement of novelty by securing a filing date in such countries.

This obligation was extended for the Least Developed Countries (LDC's) following requests from several jurisdictions, and the time period for implementation of provisions to allow for the granting of such patents has subsequently been extended until July 1, 2034.

The term "mailbox" patent was coined in light of this obligation, as any patent applications pertaining to agrochemical or pharmaceutical inventions were stored in a metaphorical mailbox once filed until relevant national legislation was implemented and the applications could be assessed.

A second obligation was also required of the member states which opted to utilize the transitionary period, in that if a pharmaceutical or agrochemical product was allowed to be marketed during said period, the country had to provide the applicant with exclusive marketing rights for the product for either five years, or until a decision on the grant of the patent was made, whichever was shorter.

Brazil is one example of a country in which mailbox patents were introduced, with TRIPS Agreement compatible national law eventually being implemented on May 14, 1997. Other countries including Argentina, Cuba, Egypt, India, Kuwait, Morocco, Pakistan, Paraguay, Tunisia, Turkey, United Arab Emirates and Uruguay also notified the WTO that they intended to make use of the transition period for mailbox patents.