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26 John Marshall Law Review 457 (1993)


How shall the United States decide whether to adopt the Patent Harmonization Treaty? What questions shall we ask? Whose answers shall we trust? What sources of information can provide us with the background needed for these inquiries? This article offers a framework in which to ask, and begin to answer, these questions. It focuses on the international community's past efforts to harmonize the law of patents. It asserts not only that history provides context, but also, that the same history yields lessons directly applicable to many of the treaty's basic issues. Section I discusses the immediate history of WIPO's efforts to obtain the Patent Harmonization Treaty and summarizes the steps that have been taken to date before that organization. In addition, it also states the current procedural posture of the treaty negotiations. Section II places this immediate history in larger context. The international community has been grappling with the problems of foreign patenting for over a century. Many of those problems predate the first international patenting agreement, the Paris Convention. The article summarizes those problems. Section III outlines a set of inquiries to evaluate the Patent Harmonization Treaty. Fundamentally, we must discern the national interests of the United States and how the treaty will affect them. Given industry's large role in designing the treaty, coupled with its historical disinterest in the costs of patenting, particular attention must be placed on the increased domestic costs that the Patent Harmonization Treaty will impose on the United States.