The United States was once again the top ranked country for intellectual property protection in the U.S. Chamber of Commerce’s annual Global IP Index for 2017, but the rankings were closer than ever. Indeed, in 2017 the U.S., UK, Japan, and European Union (EU) economies ranked more closely together than ever before, which was no doubt in significant part due to the fact that the United States tumbled to 10th overall on the issue of patents.
There is no doubt that the U.S. continues to take steps backwards due to variety of self- inflicted wounds. The omnipresent threats of more patent reform, a Supreme Court that has created unprecedented uncertainty surrounding what is patent eligible (see e.g., here, here and here), and a Patent Trial and Appeal Board that has been openly hostile to property owners (see e.g., here and here), allows harassment of certain patent owners over and over again, all the while failing in its mission to provide relief from patent trolls. Meanwhile, a number of countries around the world have taken positive steps forward on the patent front, including countries you might not ordinarily consider as patent friendly jurisdictions.
For example, much has recently been made of the fact that China is aggressively pursuing pro-patent policies and becoming inviting to both patent applicants and as a forum for dispute resolution through litigation in Chinese courts. China has introduced new enforcement mechanisms and specialized IP courts to better combat counterfeiting and piracy, and joining them in these efforts were Pakistan, the UAE and Sweden. And while not reflective in the 2017 rankings, China’s recent patent law changes, which make software and business method patent eligible, should result in a significant improvement in the patent landscape moving forward throughout 2017 and beyond.
Last year also saw multiple governments undertake a review of their IP laws, recognizing that such laws must keep pace with the emerging challenges IP owners face. In South Korea, amendments to the Patent Law helped streamline and expedite the patent examination process. Likewise, the government of Taiwan began a review of its IP laws in an effort to better comply with the standards included in the TPP. Furthermore, many economies recognized the value of leveraging international partnerships through Patent Prosecution Highways (PPH). Countries that signed PPH agreements in 2016 include Argentina, Chile, Colombia, Mexico, Peru, the Philippines, and Vietnam.
Despite these aforementioned positive developments on the global IP landscape, some other countries took unfortunate steps to restrict IP rights in 2016. For example, Ecuador, Russia, and South Africa all introduced new requirements for local production, procurement, and manufacturing. The high-tech sector also continued to face stiff head winds in the Indian market with regard to the scope of software. The Canadian government also continued to apply heightened patent utility standards, and Indonesia introduced a heightened efficacy requirement for patentability and outlawed second use claims.
At this moment in history almost everything we thought we knew about the global patent landscape and patent protection in general is being challenged. The U.S. is not the most patent friendly jurisdiction in the world, instead being tied for 10th with Hungary, which really puts into perspective the fall from grace patent rights are having in America.