Harris thinks that's a good idea, citing first to invent (good) versus first to file (bad), the one-year grace period of prior art (good) versus absolute novelty (bad), and limiting prior art to the U.S. (good) versus worldwide prior art (bad).

On first-to-invent versus first-to-file -

The European system says, "That's crazy - look what that does to your process." No inventor can be sure its filing date is really the first-filed application, and therefore, inventors can never be sure of the sanctity of their filing dates... Rush to the patent office becomes more important than rush to invent.

A one-year grace period to prior art, and limiting prior art to U.S. filing or publication, takes the edge off any rush, as well as making a mockery of being the first to invent. What's wrong with a rush to the patent office, especially when, under the present system, the U.S. being the only country in the world with such a system, patent holders can play games with their priority date? Why not respect invention, wherever it may happen? Why not consider certainty a virtue and vagary a vice? Isn't a rush to the patent office preferable to invention uncertainty? As Lao Tzu wrote in the Tao: "the value of effort is timeliness."

On the standard of patentability -

In the U.S. obviousness is found where there is a teaching, suggestion, or motivation in the prior art that leads to the invention. The determination requires analyzing whether the prior art fairly teaches, suggests, or motivates one having ordinary skill in the art to produce the subject matter of the invention.

Europe uses an inventive step standard of patentability that follows a problem-solution approach. Inventive step requires determining the closest prior art, and determining if the new invention is a sufficient advance to be susceptible of patentability. The European test requires a step forward in the art. The Japanese test goes even further, and analyzes whether it would be "easy" for someone to devise the invention once they understand the differences between that invention and the prior art. Both of these tests, therefore, relate to the prior art, not to the new invention.

Harris is wrong in his contrast of systems: the U.S. method also relates to the prior art, but does so in vaguer manner. Japan's system is an exercise in what should rightly be considered impermissible hindsight. There seems little wrong to this inventor to have a system where a patent applicant must state what the step forward is in the claimed invention. Such a statement would clarify and focus examination of claims.

Harris points out a benefit of harmonization:

Once you have an invention, wouldn't it be nice if you could have the exact same patent, with the exact same scope, in each of a number of different jurisdictions? This would simplify examination and reduce costs... However, this a speculative advantage at best - since no one has yet agreed to examination reciprocity.

Actually, the U.S. has been discussing examination reciprocity with Japan, particularly prior art search, even though patentability standards are different. A willingness to harmonize would be a rare showing of leadership initiative by the United States these days.

The U.S. system favors uncertainty, both in prosecution and litigation, and mocks true invention by ignoring work outside the U.S., as well as encouraging squirrelly claims - that is, patents that can't be proven obvious, but don't represent true invention. Harmonization along the lines that Harris is against are precisely the improvements needed to limit junk patents and reduce litigation costs, as well as offering a better prospect of respecting invention around the globe.

Harris is right that embracing patent harmonization "would represent a paradigm shift." That shift would be away from xenophobic arrogance and woolly idealism towards practicality and respect for the real inventor deserving patent protection.