CHANGES IN INTERNATIONAL PATENT LAW.
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The Possibility of a Change in American Law Adverse to Foreign Inventors. By Henry Sturmey.
/THE question of international patents is of import ance to all firms engaged in the mechanical trades, in which specific constructions are protected by patents and, as all who have had experience in marketing such goods in foreign markets know, the conditions and regulations attaching to the issue of patents vary considerably with the different countries, so that at times, owing to ignorance of the law in particular countries, exporters find themselves faced with considerable difficulties.
In most Continental countries, what is very often found to , be an onerous condition attaching ' to a patent granted there is the requirement that the patent should be "worked "—in other words, the goods manufactured—in the particular country at least two years from the date of the .patent, failing which the owner of such patent is in danger of losing it. It is not always possible for English manufacturers of patented goods, or inventors, to secure representation for the sale of their goods in a foreign country, quite apart from the question of manufacture, and it is often more or less of an impossible proposition to require that a special factory should be erected and started in the country concerned by the English owners of the patents.
Time for Working Patents.
In this country the same condition applies, but the time during which a patent need not be worked is four years instead of two, after which the owner cannot proceed against Infringers and his patent is open to attack, although, with us, the actual commencement of production here, or the undertaking to do so within a specified time, will restabilize the position. So far as most other countries are concerned, however, the British owner of patents in such countries is called upon for the payment for what are termed certificates of working, which purport to certify that manufacture in that country has actually been done. I believe the idea is that parts should be sent over and assembled in a small workshop, upon the doing of which the certificate is issued ; but in practice, so far as I am aware, even this informal "working 7 is not done, but the certificates are given on the paying of a fee ; so whether the fee goes to the patent agent or the Government is not clear. Nor is it clear what actual value there is in such certificates.
As compared with this practically universal European practice, the United States stands by itself, in that no provisions whatever are there attached to the issue of a patent—not even the paying of further annual fees. In America the owner of a patent is in a happier position than in any other country, for, when once the patent has been granted and the initial fee paid—which is not excessive—he is protected for 17 years, without any further payments whatever. American inventors and patent owners who have foreign patents are beginning to feel themselves at a disadvantage, as they have not only to pay the many annual charges to maintain their patents over here, but also are up against the problem of "working," whereas European inventors with American patents are free from such conditions and requirements.
As a consequence American manufacturing interests are endeavouring, at the International Conference which is being held on the subject at the Hague, to secure the elimination of this "working clause" by European Governments. Seeing, however, that—in this country at any rate—the insertion of the clause in the last revision of the Patent Laws under the Lloyd George Government was admittedly designed to prove an incentive to foreign holders of English patents to put down plants and operate them here, with a view to relieving unemployment, it is hardly likely 'that the United States efforts will be successful.
Should they fail, then it is of importance to notice that the American producers who are interesting themselves in the matter will proceed to agitate at home with the object of securing the insertion of a similar clause in the United States patent laws, which would have the effect of putting all the world's patent laws in lire in this important particular. Should this eventually be done, there is no doubt that many British inventors and manufacturers who have patent interests in America will find themselves hard hit by the change.
Efforts are also being made to secure some revision in the different countries with regard to the registration of trade marks, and if this be done as proposed, then all genuine producers of goods, both in this and other countries, who have built up a name for their-productions will be benefited. At present, in most, if not all, countries, registration of a trade mark is granted to the first applicant, regardless as to whether he is actually using the name commercially or not. With us this is the custom, but the firm that is, in fact, the creator of the name has the right to oppose the granting of the trade mark—if it is lucky enough to be aware in time of the attempt by others, to register it. Once, however, it gets on the record book of the Patent Office the position is, I believe, irrevocable.
Appropriation of Trade Marks in Japan.
Now, before the war, both Germany and Japan— particularly Germany—were great sinners in the Overseas markets in making up goods in identical package forms and bearing identical trade names belonging to British producers, and in Japan the piracy of foreign trade marks was brought to a fine art, the pirates watching the foreign markets for the introduction of named goods which were likely, by reason of their nature and the importance of their producers, to be offered on the Japanese market, these trade names and marks being then promptly registered by them in the trade mark department of the Japanese Patent Office, with the result that when, at some later date, the producers of the goods in question made their appearance on the Japanese markets, they were met by the fact that Japanese nationals owned their trade marks and that they could not sell their goods in Japan until they had purchased the registration—in other words, their own property—from the pirates.
Effort is, therefore, being concentrated, with regard to this matter, on getting the trade-mark law revised throughout the world, so that the registration of track marks will be permitted, not to the first applicant, bui to the first who can prove commercial user.