Do the Major International Patent Offices Enforce the National Treatment Principle?

Authors: Gaetan de Rassenfosse (EPFL), Paul Jensen (University of Melbourne), Beth Webster (Swinburne University of Technology) and Alfons Palangkaraya (Swinburne University of Technology)

Ongoing interest in harmonizing the international patent system should be seen as an attempt to extract gains from international trade for firms involved in the production of intermediate innovation outputs. Although there is no unified patent examination or a single world patent court, there are other mechanisms which aim to facilitate free trade in innovation. The most important is the national treatment principle: the notion enshrined in international treaties that states that foreigners should be treated the same manner as locals (i.e. ‘non-discrimination’).

One interesting application of the national treatment principle relates to the issuance of patents – whether discrimination against foreigners in the patent examination process could act as ‘behind-the-border’ trade barriers which might impinge the free flow of goods and services. The primary focus of this paper is “How would one establish that such an anti-foreign bias exists?”, which we answer using data from the largest five patent offices. Wealso consider some of the underlying factors which might explain any observed discriminatory outcomes. Our results confirm the presence of a domestic inventor bias, in all five offices. However, the bias is reduced with the use of the PCT route.

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