WIPO Journal - World Intellectual Property Organization

176 The WIPO Journal
The International Bureau indicated that discussion would be needed at the Diplomatic Conference on
the international law implications of the automatic incorporation of future modifications of the PCT and
the PCT Regulations into the PLT, in particular in respect of parties to the PLT which are not also PCT
contracting states. 18 As these non-PCT contracting states are not represented in the PCT Assembly, they
would therefore have no voice in future changes to the PCT Regulations. A further difficulty is posed by
the fact that future changes to the PCT Administrative Instructions should also be automatically incorporated
into the PLT, even though these changes are promulgated by the WIPO Director General after consultation
with offices and authorities which have a direct interest in the proposed modifications, but without express
approval by the PCT Assembly. 19
Various options to deal with this problem were discussed in a document prepared by the International
Bureau 20 and discussed at the Diplomatic Conference for the Adoption of the PLT, which, eventually,
resulted in the adoption of PLT arts 16 and 17(2)(v). 21 In addition, an “Agreed Statement” was formulated
during the PLT Diplomatic Conference consolidating the relationship between the PLT and the PCT. 22
The effect of PLT art.16(1) is that any revisions, amendments and modifications of the PCT (made after
June 2, 2000) will only apply for the purpose of the PLT if two conditions are satisfied. First, the revision,
amendment or modification of the PCT must be consistent with the articles of the PLT. Secondly, that
revision, amendment or modification of the PCT must be adopted by the PLT Assembly, for the purposes
of the PLT, by a majority of three-fourths of the votes cast. Accordingly, future changes to the PCT will
not apply for the purposes of the PLT unless and until they are formally adopted by the PLT Assembly. 23
In addition, PLT art.16(2) relates to provisions of the PCT (“transitional provisions”), and by virtue of
which a revised, amended or modified provision of the PCT does not apply to a state party to the PCT, or
to an office acting for such a state, for as long as that revised, amended or modified provision is incompatible
with the law applied by that state or office. 24
Alignment of the Patent Cooperation Treaty with the Patent Law Treaty
In view of the adoption of the PLT and the relationship between the PLT and the PCT, the Working Group
on Reform of the PCT discussed proposals designed to align the PCT with the requirements of the PLT.
There was wide agreement as to a number of general observations made by various delegations 25 :
• the principles of the PLT should so far as possible be taken up in the PCT in order to achieve
the same benefits for applicants and offices in the filing and processing of international
applications as would be available for national applications;
• certain features of the PCT system differed from national and regional patent systems; some
aspects of the PLT were less relevant than others in the context of the PCT system;
18 Currently (March 1, 2011) all PLT members are also contracting states to the PCT. “Results of the 28th (16th Extraordinary) Session of the PCT
Assembly, March 13–17, 2000; Issues for Possible Discussion at the Diplomatic Conference”, Document PT/DC/6, Item 16.
19 “Results of the 28th (16th Extraordinary) Session of the PCT Assembly, March 13–17, 2000; Issues for Possible Discussion at the Diplomatic
Conference”, Document PT/DC/6, Item 15.
20 “Results of the 28th (16th Extraordinary) Session of the PCT Assembly, March 13–17, 2000; Issues for Possible Discussion at the Diplomatic
Conference”, Document PT/DC/6, Items 17–23.
21 PLT art.16 as currently in the PLT was not present in the “Basic Proposal for the Patent Law Treaty”; see Document PT/DC/3.
22 “Patent Law Treaty, Regulations under the Patent Law Treaty and Agreed Statements by the Diplomatic Conference” (adopted by the Diplomatic
Conference on June 1, 2000), Diplomatic Conference for the Adoption of the PLT, Document PT/DC/47 (June 2000), Agreed Statements, Item 2, at
http://www.wipo.int/meetings/en/details.jsp?meeting_id=4057 [Accessed March 29, 2011].
23 “Explanatory Notes on the Patent Law Treaty and Regulations under the Patent Law Treaty”, Document PT/DC/48 Prov., 2000, Note 16.01.
24 “Explanatory Notes on the Patent Law Treaty and Regulations under the Patent Law Treaty”, Document PT/DC/48 Prov., 2000, Note 16.03.
25 “Summary of the Session — Changes Related to the PLT” (prepared by the chair), Document PCT/R/WG/1/9 (November 2002), Item 21, at http:
//www.wipo.int/meetings/en/details.jsp?meeting_id=4446 [Accessed March 29, 2011].
(2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited