On May 23, 1997, Atlanta inventor Clyde Bryant filed for a U.S. patent on his conception of an improved internal combustion engine. In written descriptions of 26 claims and in 34 pages of diagrams, he disclosed an auto engine that aims not only to burn fuel more cleanly but also to deliver greater torque and higher fuel efficiency than a standard engine. Bryant had already started a company, Entec Engine, to develop the technology, and the business’s entire future was wrapped up in this patent application. The process was straightforward enough, costing less than $10,000 in filing fees and legal expenses. But Bryant was immediately confronted with an unavoidable conundrum: because of the global nature of the auto industry, unless he protected his invention worldwide, someone else would be able to patent and market the engine in another country. “The only way to do it was to file everywhere at once,” he says.
Bryant’s Entec is one of an increasing number of companies stepping into the international patent jungle, where 120 national patent systems challenge inventors with opposing philosophies and examination rules, not to mention translation requirements and separate filing fees. Working with an Atlanta law firm that has an office in Munich, Germany, Bryant learned that failure to file in certain foreign countries soon would result in forfeiting his rights forever. “It’s a lot of work to redo the claims for many of these countries,” he says.
But over the next few months, the law firm churned out applications for Russia, Ukraine, Georgia, Australia, and Singapore. Through the European Patent Office, Bryant filed an application that would protect his invention in 23 other countries. The cost of all the applications: $78,000 plus a whopping $200,000 in legal fees. When his U.S. patent, number 6,279,550, was issued in August 2001, Bryant rejoiced, but when his European application was granted in November 2002, he learned it would cost almost $7,000 more per country to take the final step of actually getting the patents issued. To pay the tabs, Bryant’s startup gave equity to the law firm.
The creation of a single global patent system could solve this conundrum for Bryant and other small inventors. Even multinational corporations that can afford to file everywhere are pushing for “deep harmonization,”
an international initiative aimed at forging a global patent. But in return for eliminating duplicate filing fees, most issuance costs, and translation requirements, such an effort will likely entail stark trade-offs for innovators worldwide.
Even as Technology Review’s annual Patent Scorecard (PDF download last page) tracks the number and strength of U.S. patents won by 150 companies in eight high-tech sectors, harmonization looms as a watchword. Harmonization means imposing a single set of global rules and depends on coming up with one answer to a controversial question: what is patentable? U.S. inventors in particular may be forced to abandon America’s 200-year-old first-to-invent system of settling disputes between rival inventors in favor of the first-to-file criterion that guides most other nations. “The goal [of harmonization] is brilliant, and there is tremendous pressure to achieve it,” says Joanne Hayes-Rines, publisher of Inventors’ Digest, the official publication of the United Inventors Association of the USA. “But it’s going to be very difficult to get there.”