Patents and GATT: The General Agreement on Tariffs and Trade

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By Rich Stim

The General Agreement on Tariffs and Trade (GATT) is among the most important international trade treaties in our history. And it has had a large effect on U.S. patent law.

Under GATT, for patents filed after June 7, 1995, the U.S. patent monopoly ends 20 years from the application’s filing date, regardless of when the patent issues. However, effective June 2000, every patent is guaranteed an in-force period of at least 17 years. Previously, the patent monopoly lasted for 17 years from the date of issue, regardless of when the application was filed. (Patent applications that were pending—and patents which were in force—as of June 8, 1995, expire 20 years from filing or 17 years from issue, whichever period is longer.)

Another GATT-related change involves the Provisional Patent Application or PPA. Filing a PPA will legally “reduce an invention to practice,” provided that the inventor files an actual patent application within a year or filing the PPA. The reduction to practice date is crucial if an inventor is faced with a competing patent application or a prior art reference with a close date. Formerly, an invention could be reduced to practice only by building and testing it or by filing a regular patent application.

Another GATT-related change involves foreign inventors. Under current U.S. law, an inventor may establish a date of invention earlier than the filing date of the inventor’s patent application in order to:

  • obtain the patent in the face of a competing application (“win an interference”), or
  • show that the invention predates a particular prior art reference (“swear behind cited prior art”).

But to do this, the inventor must show conception of the invention and either:

  • actual reduction to practice (building and testing), or
  • diligent efforts to reduce the invention to practice or file a patent application.

Before GATT, inventors could rely on activities only in the United States, Mexico, or Canada. For applications filed on or after January 1, 1996, inventors are also able to rely on activities in any GATT country.

The final GATT-related change enhances protection against patent infringement. Prior to GATT, a patent only gave its owner the right to exclude others from making, using, or selling the patented invention. GATT expanded this right to include the situation when anyone else offers for sale or imports a patented invention, or, in the case of a process patent, imports products made abroad by the patented process.

 

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