AIPPI: PATENT HARMONISATION
and effective preparations for the use of an embodiment within the scope of protection of a patent have been made. 2) Te prior user right should be recognised
as an exception to the exclusive rights of the patent owner afforded by the patent. 3) Te prior user right should lapse upon the
abandonment of the use and/or abandonment of the preparation of the use by the prior user. 4) A prior user right should in principle be
limited to the country where the prior use took place. Terefore, the use of the invention in one country should not give rise to a prior user right in another country. In case of a regional patent with unitary effect, the prior user right should apply, as an exception to the patentee’s rights, on all the territories covered by the patent. 5) A prior user right should only arise if the
prior user has acted in good faith. 6) A prior user right should be limited to
embodiments within the scope of the patent that were used before the filing date or, if applicable, the applicable priority date of the patent or to substantially similar embodiments; prior user rights should not by definition extend to the entire scope of the patent. 7) A prior user right should be transferable,
but only if it is transferred together with substantially all of business.
8) Te prior user right should not be
licensable to another legal entity. 9) Prior user rights should be available in any
field of technology and for any type of entity. Overall, the interactive process that has occurred from 2011 to
today, including
initiatives from governments and non- governmental organisations (NGOs), has been positive in moving the relevant stakeholder opinions toward an international consensus. While NGO studies and resolutions have no binding authority in and of themselves, they are a useful part of the process. Tis was recognised by the JPO, which
noted: “Te JPO considers resolutions such as the AIPPI resolutions on grace period and prior user rights to be informative when having discussions among patent offices about patent harmonisation.” Hopefully, governments and NGOs
alike
will continue to push the discussion forward on grace period and prior user rights, so that the ultimate goal of a uniform international standard can eventually be achieved.
Jonathan Osha is deputy reporter general at AIPPI and the founding partner of Osha Liang, an IP boutique firm headquartered in Houston, Texas. In addition to his IP prosecution and enforcement work, Osha supports the IP law harmonisation and educational efforts of AIPPI. He can be contacted at:
j.osha@aippi.org
the related enterprise or
www.worldipreview.com
World Intellectual Property Review Annual 2015
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