The current draft SPLT (SCP/7/3 of March 6, 2002), discussed in the Seventh session of the Standing Committee on the Law of Patents on May 2002, provides in Article 7(1) for the opportunity for the applicant to submit observations in the case of intended rejection or refusal. Article 10(2) of the PLT has a similar provision. The draft SPLT does not deal with the issue of the submission of observations by third parties. From an historical point of view, Article 18 of the draft Harmonization Treaty submitted to the Diplomatic Conference in 1991 (document PLT/DC/3 of December 21, 1990) suggested the prohibition of a pre-grant opposition. Nevertheless, this provision did not count on the general agreement of the delegations at the conference.

In 1991 AIPPI adopted a resolution with respect to Q99 ("Participation of third parties in the patent granting and amendment procedures"), favouring the intervention of third parties in pre-grant and post-grant proceedings. The possibility of submitting observations is provided for in the law of several countries, such as the USA, UK and Brazil. Notwithstanding the increasing availability of resources for patent examiners to search for prior art documents, the number of documents to be considered is increasing, presumably at an even faster pace. The increase in the number of new patent applications being filed not only directly increases the work load of examiners, but also each new application adds to the repository of documents to be considered in the search of subsequent applications. The access to nonpatent documents is even more difficult.

Allowing interested parties to submit documents and comments during examination does seem to reduce the risk that a patent is granted with an unduly broad scope, or even granted at all, only because the examiner was unaware of information or documents which were relevant to the determination of patentability. It is thus suggested that FICPI discusses the possible adoption of a resolution favoring the inclusion of a provision in the SPLT to the effect that members shall provide for the possibility of third parties submitting observations during examination. A similar consideration can be made with respect to the PCT, in view of the ongoing reform.