Cooperation and harmony: IP treaties in MENAP

Should all countries adhere to all IP treaties?

Next to rules on the merits, the major international agreements focus on cutting red tape, easing access to foreign markets, reducing delays and costs and improving the efficiency of managing IP portfolios overall. Hence, there are a number of strongly beneficial treaties to which it would behoove any country to adhere. Other conventions are broadly discretionary and for specific cases, which can only be determined by duly considering all economic and diplomatic circumstances.

The argument often heard behind closed doors that certain treaties are unwanted because they would disadvantage local agents is somewhat sardonic. Since foreign clients who gain direct market access do not need paid representation services, this reasoning serves the interests of a minority to the detriment of a much greater number of deserving applicants (from individuals, to small- and medium-sized businesses (SMEs) and corporations). Instead, the proven mid- and long-term economic advantages of the most adhered-to IP treaties make these agreements a vital component of national portfolios. Although most MENAP countries are already members of key treaties – such as the Berne Convention, Paris Convention, Patent Cooperation Treaty and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement – our survey shows there is still a long road ahead. Among the gold standard of IP accords, we would count:
 

Should patent offices introduce extensions?

Supplementary Protection Certificates (SPCs) or their equivalents currently exist in around 50 countries for pharmaceutical and plant protection products, notably in China, the European Union, Japan, Korea, the United Kingdom and the United States. The prolongation is usually up to five years beyond the normal patent term (20 years).

Given their enormous commercial impact, a decision for or against SPC implementation can only be made in accordance with national economic goals. An economy hosting strong research and development into pharmaceuticals will likely welcome the introduction of SPCs to maximize returns on domestic investment. Vice versa, economies that import medicaments and agricultural chemicals significantly will probably prefer a shorter protection term to allow national manufacturers to produce generic versions as soon as the respective patents have expired. Bearing this in mind, the lack of substantial R&D activities in the entire region may be why SPCs have not made it yet into any MENAP countries.

That being the case, the Gulf countries have been making concerted efforts to boost regional R&D, committing billion-dollar investments to establish new national laboratories and attract foreign endeavors. In time, the effects of these stimulus measures are likely to motivate government ministries to pursue expanded patent protection terms.

Should there be more regional cooperation?

The model of a shared regional IP system has found much success, demonstrated by such examples as the African Regional Intellectual Property Organization (ARIPO), Eurasian Patent Organization (EAPO), European Patent Convention (EPC), European Union Intellectual Property Office (EUIPO), Organisation Africaine de la Propriété Intellectuelle (OAPI) and, in the very near future, European Unitary Patent. These organizations and treaty frameworks harmonize procedures, reduce costs, simplify IP management and, at their most integrated, address matters of enforcement. For instance, the EUIPO and the soon-to-be operational Unified Patent Court (UPC) have clearly defined administrative rules that even allocate court competencies.

In contrast to the overlapping levels of IP harmonization in Europe, only the Gulf Cooperation Council Patent Office (GCCPO) exists as a shared system in the MENAP region. Even then, the office has, unfortunately, ceased accepting new applications since January 2021. The corresponding unitary GCC Trademark never saw the light of day but left its mark by aligning certain aspects of the six Gulf states' trademark laws.

Although politically challenging to realize, a MENAP IP treaty would be highly advantageous. One could easily picture a consolidated decision-making body, similar to the EUIPO or UPC, handling any combination of patents, trademarks, designs, geographical indications or indigenous knowledge across MENAP nations. Improved access to IPRs and enforcement measures would benefit service providers and the entire local production cycle. Thus, at a time when investors are being courted and stressed financial conditions are widespread, a treaty would boost the regional economies.

That larger councils already exist, namely the Organisation of Islamic Cooperation (57 members) and the Arab League (22 members), demonstrates that diplomatic efforts toward IP integration would be far from fruitless. It would be a massive project, but past and present experience has proved that closer IP cooperation between neighbors is a goal worth pursuing.

Should there be more harmonization?

The opportunity to harmonize by way of international laws is not to be passed since following the same or highly similar rules across borders facilitates global trade. On top of this, major IP treaties like the Paris Convention or TRIPS Agreement directly shape shared definitions, establish common minimum standards of protection, synchronize filing requirements and streamline prosecution procedures. These aims have been very well achieved regarding IPR classifications, enforcement measures and general rules on eligibility for registration of subject matter.

On the other hand, full harmonization cannot be attained in practice, nor is it desirable to do so. Different economic circumstances mandate varying levels of IP protection, so the pace of legal evolution is dictated by the sophistication of a country's market economy. Developing countries, for instance, tend to allow more copying when their innovation cycle is still in its infancy. The protection level is lowered so that nationals are less liable for infringement of advanced goods – think software patents, pharmaceuticals or automotive components. In the second stage of national development, producers learn to create their own goods and suitable production facilities become available. Thus patent eligibility criteria are lowered to allow for more local patents. By the third stage, former startups have become more technically advanced, so the bars of both patent eligibility and protective rigorousness are raised to defend them against competitor imports.

Other national differences become evident in diverging interpretations of likelihood of confusion and unfair competition, which can only be duly addressed by considering local culture and habits. Indeed, the aforesaid treatises avoid defining these concepts in detail, leaving this to national case law. Furthermore, international agreements normally impose only minimum standards, allowing member states to introduce stronger ones (e.g., on exhaustion of rights), which again means there is no full harmonization because maximum standards may differ.

Nevertheless, as far as is feasible, harmonization should be sought to enhance ease of trade and the common protection of intellectual and monetary investments.