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5 January 2016BiotechnologyMichael Kahnert

A state of grace

Germany is a hub of innovation. The level of scientific and technological performance is very high, thanks to an excellent research landscape and the highest number of innovative enterprises in the EU. However, Germany is falling short of its potential when it comes to leveraging technology to create new products. Germany has not become less competitive in the race for innovation, yet other countries are proving to be far more dynamic.

The creation of framework conditions that foster innovation is therefore crucial to Germany’s success in the international competition to attract business investment. First and foremost is the quick translation of advancements in research and technology—in key areas such as biotechnology—into market advantages for the companies behind the innovations. This requires a competitive model of patent law, particularly at the EU level, that strengthens patent protection while countering intellectual property violations such as counterfeiting and patent infringement.

An often neglected component of an innovation-friendly patent law is to secure results from basic research for real-world applications. Inventors often make novelty-destroying disclosures before the filing date because scientific research goals such as the fast publication of research results come up against the requirement of patent law to keep inventions confidential before the patent application.

The introduction of a grace period in Europe, similar to the one which has existed for a long time in other economically successful countries (eg, the US and Japan), can provide swift and cost-neutral relief. The European patent system is based on a first-to-file principle. This requires the inventor to file the patent application before revealing his or her invention to the public if he or she does not want to lose the novelty of the invention.

A grace period is the period before the patent application during which the applicant can disclose his or her invention without its novelty being lost by that disclosure. This holds significant potential for Germany in particular, as its strong basic research capacity generates numerous new ideas. In order to convert these scientific ideas into applications for the end user it is necessary to adequately protect research results.

In a global market, the patent law systems in foreign countries influence the decisions of domestic players. At present, the discrepancy in the regulation of the general grace period between the world’s three largest patent offices—the US Patent and Trademark Office, the Japan Patent Office and the European Patent Office—makes this issue very complicated for inventors.

The economic significance of cooperation between small and medium-sized enterprises and large corporations is constantly growing. In recent years, life sciences ventures have witnessed a growth in strategic investments by established corporations and 60% of all innovations have their origin outside of large corporations. This proportion increases up to 82% if only new biological therapeutics are considered. This and the increasing globalisation of patent applications has made the search for the best system along with a harmonisation of the patent systems more urgent.

“Science is expected to increase publicly available knowledge, but on the other hand it is expected to increase the economic effectiveness of this knowledge.”

Earlier disclosure in any country causes the loss of novelty of an invention in all countries without a grace period exception. Even if the grace period applies in the home country of the applicant, earlier disclosure will make patent claims in countries without a grace period impossible.

Furthermore, the negotiations for a free trade agreement between the US and Europe are adding political momentum to strengthening the international protection of IP rights. The issue of harmonising international patent law should not be left out of the debate on the introduction of a grace period in Europe.

To foster international patent law harmonisation, a grace period should be introduced with the following key elements:

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