When speed matters: a discussion on the benefits of a grace period in patent law to accelerate pharmaceutical innovation in times of pandemic

Abstract

The unprecedented coronavirus disease 2019 (COVID-19) pandemic is a solemn reminder of the need to accelerate pharmaceutical innovation. The desire for fast access to vaccines triggered discussion of unrestricted access to research findings with the hope of facilitating the drug discovery process to combat COVID-19. Increasingly, abolition of the patent system is being discussed in connection with the fight against the pandemic. This may accelerate discovery of and increase access to medicines. However, society’s desire for immediate disclosure of research findings conflicts with the inventor’s legitimate interest to protect his or her invention as well as the need to recover investments made to develop the drug. The call for immediate disclosure of research results contradicts the interest of the inventor, whose primary goal is to secure his intellectual property rights, usually by applying for patent protection. In Europe, where patent law is based on the principle of absolute novelty, disclosure of the results reduces novelty and prevents subsequent patenting. Consequently, patenting remains the top priority for pharmaceutical companies in Europe, while disclosure of the results is secondary. The following article looks critically at the idea of using the grace period in European patent law to reconcile the conflicting interests of society and inventors in times of pandemic. In this paper, we investigate whether the implementation of a grace period in European patent law like that known in the USA, Japan, or Korea benefits the disclosure of results and increases the flow of information, ultimately leading to the promotion of innovation and rapid drug discovery. This article questions whether the use of a grace period provides a sufficient incentive to the inventor for rapid disclosure.