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The ASEAN Patent System: The Adoption of Regional Patent Office in ASEAN Sipim Wiwatwattana A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Washington 2017 Reading Committee: Toshiko Takenaka, Chair Kyoko Tokuno Robert W. Gomulkiewicz Dongsheng Zang Program Authorized to Offer Degree: School of Law © Copyright 2017 Sipim Wiwatwattana University of Washington Abstract The ASEAN Patent System: The Adoption of Regional Patent Office in ASEAN Sipim Wiwatwattana Chair of the Supervisory Committee: Professor Toshiko Takenaka School of Law With the goal of establishing itself as a single market and competitive economic region, the Association of Southeast Asian Nations (ASEAN) recognizes the patent system as a mechanism to promote a pro-business environment and to attract technological investment to the region. However, despite efforts to improve patent services, the limited institutional capacity and the flaws in patent registration system in ASEAN countries are still important obstacles for development. This study argues that ASEAN should consider adopting another regional model, namely the regional Patent Office, to remove such difficulties and promote the patent registration system in ASEAN. The core of this study, therefore, is the ASEAN regional Patent Office. The aim of this study seeks to examine the concept and potential impacts, both positive and negative, that the establishment of the regional Patent Office has on ASEAN and to determine whether the regional Patent Office can be a mechanism that helps ASEAN remove the flaws and serve ASEAN’ s interests. Based on a qualitative research, the study examines ASEAN regional framework, current situation, and constraints of patent registration system in ASEAN. It then analyzes the policy and legal framework, operation, advantages, and challenges of the regional Patent Office, through experiences of two regional Patent Offices: the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO) in order to determine the applicability of regional Patent Office to ASEAN. The finding of this study suggests that the regional Patent Office would benefit ASEAN in improving its capacities in administering the patent registration and promoting the policy and goal of ASEAN to accelerate technological growth in the region. The study also pinpoints key considerations which ASEAN Member States must take into account and take actions in order to maximize the benefits and overcome the challenges that ASEAN might have in establishing the regional Patent Office. Keywords: ASEAN, patent, patent registration, patent procedure, patent prosecution, patent office, regional patent office, regional patent system, patent cooperation, intellectual property Table of Contents List of Tables…………………………………………………………………………………......iv List of Charts………………………………………………………………………………………v Abbreviations…...………………………………………………………………………………...vi Chapter 1 Introduction………………………………………………………………………….1 1. Background of ASEAN……………………………………………………………………4 2. ASEAN Patent Registration System……………………………………………………...10 3. Objectives of the Study…………………………………………………………………...21 4. Research Questions and Hypothesis……………………………………………………...22 5. Methodology……………………………………………………………………………...22 6. The Scope of the Study…………………………………………………………………...23 7. Significance and Contribution……………………………………………………………24 Chapter 2 The Regional Patent Office………………………………………………………...26 1. Introduction: The Territorial Principle and Patent Procedure Cooperation………………26 2. The Concept and Policy Framework of Regional Patent Office………………………….28 A. The European Patent Office (EPO) ………………………………………………….31 B. The African Regional Intellectual Property Organization (ARIPO)………………...35 3. General Impacts of the Regional Patent Office…………………………………………...41 A. Advantages of the Regional Patent Office………………………………………..…..42 B. Disadvantages of the Regional Patent Office…………………………………………51 Chapter 3 Advantages of the Regional Patent Office for ASEAN…………………….…….57 1. Administrative Aspect…………………………………………………………………….57 A. Pooling Resources..….………………………………………………………………..59 i B. Sharing the Workload and Reducing the Duplication………………………………...64 C. Reducing the Delay and Application Backlog in National Patent Office…………….65 D. Assuring the Patent Quality…………………………………………………………...66 E. Cost Savings…………………………………………………………………………..67 2. Policy and Legal Aspect…………………………………………………………………..70 A. Reducing the Divergence of the Patent System in ASEAN…………………………..70 B. Developing Patent System in ASEAN………………………………………………..75 C. Advancing ASEAN’s Interests….……………………………………………………78 Chapter 4 ASEAN’s Challenges of Establishing the Regional Patent Office……………….91 1. Impacts on ASEAN Member States’ Sovereignty and the ASEAN Way………………...91 2. Impacts on ASEAN’s Diversity and National Interests…………………………………..96 3. Impacts on National Patent Offices of Member States………………………………….103 4. The Limit of Operational Language……………….……………….……………………110 5. High Costs of Operation……………….……………….……………….……………….115 6. The Lack of Skilled Patent Practitioners……………….……………….……………….117 Chapter 5 Balancing ASEAN’s Interests: Considerations in Establishing the ASEAN Regional Patent Office…………...122 1. Re-considering and Minimizing Impacts and Challenges of Establishing the Regional Patent Office in ASEAN ……………….……………….………………....123 1.1 Impacts on ASEAN Member States’ Sovereignty and the ASEAN Way………….123 1.2 Impacts on ASEAN’s Diversity and National Interests…………………………….130 1.3 Impacts on National Patent Offices of Member States……………………………..135 1.4 The Limit of Operational Language………………………………………………..139 1.5 Costs of Operation………………………………………………………………….144 ii 1.6 The Lack of Skilled Patent Practitioners…………………………………………...146 2. Considerations and Recommendations to Maximize Benefits of the Regional Patent Office in ASEAN…………………………………………………..148 2.1 The Organizational Structure and Policy…………………………………………...149 2.2 The Legal Framework………………………………………………………………153 2.3 The Enforcement……………………………………………………………………155 2.4 The Services and Fees………………………………………………………………158 2.5 Location…………………………………………………………………………….161 2.6 Patent Database and Human Resources…………………………………………….163 2.7 Technical Assistance………………………………………………………………..165 2.8 The National Patent Office and the Cooperation with the Regional Patent Office...168 2.9 Public Communication……………………...………………………………………171 Chapter 6 Conclusion…………………………………………………………………………173 Bibliography…………………………………………………………………………………...183 iii List of Tables Table 1…………………………………………………………………………………………...13 Patent applications for inventions filed in China, India, and ASEAN Member States Table 2…………………………………………………………………………………………...14 Patent applications for inventions filed in ASEAN Member States Table 3…………………………………………………………………………………………...55 Fee schedules of the EPO and four national Patent Offices Table 4.…………………………..…………………………..…………………………………..88 National patent applications and European patent validations in certain EPO Member States iv List of Charts Chart 1…………………………………………………………………………………………..35 Total European and Euro/PCT (international phase) applications since 1978 Chart 2…………………………………………………………………………………………..40 Total ARIPO and ARIPO/PCT applications since 1984 Chart 3…………………………………………………………………………………………..46 The number of patent applications filed with certain national Patent Offices of EPO Member States before and after ratifying the EPC v Abbreviations AEC ASEAN Economic Community ARIPO African Regional Intellectual Property Organization ASEAN Association of Southeast Asian Nations ASPEC ASEAN Patent Examination Co-operation AWGIPC ASEAN Working Group on Intellectual Property Cooperation DPMA German Patent and Trade Mark Office EPC European Patent Convention EPO European Patent Office FDI Foreign Direct Investment IP Intellectual Property Office IPRs Intellectual Property Rights ISA International Search Authority PCT Patent Cooperation Treaty PPH Patent Prosecution Highway R&D Research and Development S&E Search and Examination SMEs Small and Medium Enterprises TRIPs Agreement on Trade-Related Aspects of Intellectual Property Rights UNECA United Nations Economic Commission for Africa USSFTA The United States-Singapore Free Trade Agreement WIPO World Intellectual Property Organization vi Acknowledgements I am greatly indebted to many people during researching and writing this dissertation. First and foremost, I would like to thank my supervisor Professor Toshiko Takenaka for her immeasurable guidance and kind support throughout my graduate studies. I extend my sincere appreciation to my reading committee members, Professor Kyoko Tokuno, Professor Robert W. Gomulkiewicz, and Professor Dongsheng Zang for their helpful comments and encouragement during the research. I also would like to thank Professor Michael Townsend, Dr. Melissa Kane, and Professor Hilary Soderland for their kind assistances and administrative support during my study. I express my special thanks to Professor Heinz Goddar and Dr. Stefan Luginbühl who have provided helpful resources and insightful information since I first developed my study; Associate Professor Orabhund Panuspatthna who have kindly given me suggestions and support for doing this study as well as developing my future research; and Mr. Suebsiri Taweepon who always point out interesting issues that are beneficial for my study and help me better understand the patent practice. I am also much obliged to patent offices, patent experts, patent lawyers, and business sectors for
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