There exist a certain member of Conventions and international systems that facilitate access to IP law:

  • The PCT, managed by WIPO, is a procedure for filing a patent application by single procedure with countries chosen from more than a hundred (132 as at 31 December 2005) without having to initially submit a translation of the application, nor pay national duties.
  • The Madrid and Hague systems afford protection of a trade mark or of a model respectively in some or even all the member states by filing a single international application at WIPO.
  • The European patent makes it possible to obtain a patent for all the designated countries among the 31 possible (as at 31.12.05), with a single filing and a single procedure. This European patent will then be divided up into as many national patents as there are designated countries.
  • The community mark and model are particular advanced systems that give access to a right of protection over all the territory of the European Union.

In Europe, the situation is fairly heterogeneous. Great disparities exist between Germany or the United Kingdom, which are the largest filers, and certain Mediterranean or Nordic countries, which still have only a small presence.

Germany for example has more than 24,000 European patent applications whereas Finland has only around 1500.

The community patent system is in suspension; it has still not come into force and poses problems of harmonisation in the face of national legislation.

The American system for protecting innovation is often put forward as an example. The American government as early as the 1980s set up a massive policy of the creation of powerful institutions and legislative and operational mechanisms for promoting recourse to industrial property. Industrial property has thus become a strategic weapon, used for economic, political and diplomatic purposes. The American system has been organised so as to favour creation by proposing a copyright filing procedure. There exists no other equally wide register of copyright in the world at the present time.

A massive increase in the filing of patents in the United States has been observed since the beginning of the 1990s, which has constituted a powerful support for the policy of expansion of American companies.

The American system is favoured by common law, which is open, developing and pragmatic. This system does however have one fault: the prohibitive cost of legal proceedings, in particular with regard to patent disputes.

The Asian hub for its part is progressing enormously.
If more than 80% of the 5.4 million patents in force in the world are concentrated in the United States, Japan, the United Kingdom, Germany, the Republic of Korea and France, Asia is progressing very rapidly in the field of industrial property. The Republic of Korea and China have become respectively the fourth and fifth largest offices in terms of applications filed. The number of patent filings emanating from Chinese residents has thus multiplied by five in less than ten years, reaching 65,786 in 2004 (WIPO).

  • a low level of fees.
  • a special measure that reduces by 50% the amount of fees for SMEs, independent inventors and academic research,
  • a much wider appreciation of the field of patentability,
  • lengthy, complex and very expensive litigation procedures (referred to as “discovery” procedures).

The common law system gives judges great flexibility in their analysis of the object of the dispute. Case law may change very rapidly without recourse to the legislators in order to modify the law. When an American judge convicts an infringer, the sanction is often very severe since he/she has profound knowledge of the economic impact of the infringement found.

In Europe, and especially in France, what are the advantages of the IP system?
The community system (community marks and designs and models) and the European system offer many advantages, efficacy, reduction of costs, flexibility and simplicity. The minimal costs and difficulties of the system for applicants enable small and medium enterprises and private inventors to have easy access to this type of protection.

Questions and answers

Why do American companies use a strategy of flooding with patents?
American companies have filed patents massively, particularly since the start of the 1990s – by way of example, these filings have increased from 45,000 in 1993 to close on 190,000 in 2004. The strategy of massive filing is much used by American companies because, in the United States, disputing a patent is expensive. The prohibitive cost of legal proceedings, in particular with regard to patent disputes, is a direct consequence of the American legal system, with its procedures of forced communication of documents and deposition of witnesses.

What is it that today makes the success of the American IP system?
The United States, leaders on the economic and international scene, can easily put pressure on key industrial sectors and impose their rules with regard to intellectual property.