Is USPTO 3-Track Plan TRIPS Non-Compliant?

A new proposal from the United States Patent and Trademark Office (USPTO) for a “Three Track” system for patent examination may violate US obligations under the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, US IP lawyer Harold Wegner, a partner at Foley & Lardner, has argued.

The “Three-Track” programme would provide different priority levels for patent applications filed in the United States, according to the request of the applicant. Track one would require an extra fee to prioritise the patent’s examination and hopefully achieve results in 12 months; track three would allow for a delay of up to 30 months, while track two would remain the normal examination process. Normal procedures take on average 34 months to complete, according to USPTO Director David Kappos.

But Wegner argues in responding to USPTO’s call for public comment on the proposal, that the plan may violate TRIPS in several ways relating to national treatment (treating foreign firms the same as domestic ones) and unwarranted delays.

Furthermore, he asserted, following this plan “may create a blueprint for parallel and even more severe violations by developing countries of the global intellectual property regime that is so vital to protection investments in software, movies and recorded music – in addition to patents for pharmaceuticals, manufactured goods and other patent-eligible subject matter.”

Wegner’s arguments can be read here [pdf].