Patent System Needs Adjustment to Harmonize with Open Science Objectives, European Academies say

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A new ALLEA statement examines the current patent system in the context of the ideals and objectives of open science and recommends, among others, the introduction of grace periods in patent applications to make knowledge open as early as possible.

In a new statement published today, ALLEA, the European Federation of Academies of Sciences and Humanities, advocates for the harmonisation of the patent system with open science. The academies urge policymakers to introduce a grace period of at least one year to ensure rapid open publication of research findings.

In addition, the authors conclude that patent income must not be seen as a substitute for public funding and patent activity should be used with great caution as an evaluation metric in assessing the performance of research institutions, projects, and individuals.

The statement, prepared jointly by ALLEA’s Open Science Task Force (OSTF) and the Permanent Working Group Intellectual Property Rights (PWGIPR), analyses the current debate on the possible synergies and perceived tensions between open science and patent protections.

The publication explores these two apparently contradictory views on research policy. On the one hand, a utilitarian view underlines the value of research as a key pillar of innovation in modern societies, wherein patents are considered important tools to valorise research findings. At the same time, an increasingly vocal open science movement advocates for knowledge generated through research to be considered as a global common good to be shared as openly and as rapidly as possible.

The authors consider that “there is no fundamental opposition between open science and protection of IPR; ideas can be freely shared even if their commercial use is subject to restrictions, and indeed this is only possible because of patent law. However, there are clearly operational problems with the way the patent system is currently structured.”

With the right adaptations to existing patent law, knowledge valorisation does not need to prevent early sharing of research findings. On the contrary, “a reformed patent system is essential to the widespread adoption of open science, and could even incentivise it”, states Luke Drury, Chair of the ALLEA Open Science Task Force.

In its conclusions, the statement recommends:

  1. The introduction of a carefully formulated grace period of at least one year in patent applications to allow open publication prior to obtaining protection.
  2. The existing research and experimentation exceptions should be strengthened and broadly interpreted to underpin the free non-commercial use by researchers of knowledge disclosed in patents.

In addition, it notes that:

  1. While patent income and license fees may play a useful role in supplementing the budgets of public research bodies and the salaries of some individuals, this must not be seen as a substitute for public funding.
  2. Patent activity should be used with great caution as an evaluation metric in assessing the performance of research systems, bodies, and individuals. Incentivising the accumulation of non-performing patents is counterproductive and a waste of resources.
  3. The value of curiosity-driven open research in publicly funded research and education bodies needs to be better acknowledged as the bedrock on which innovation and entrepreneurial activity is built, even if it is hard to quantify and valorise.
  4. Related to the last point, the role of distributed communities and teams of researchers needs to be better recognised. The emphasis in patent law on individual inventors is unhelpful in this regard and does not properly reflect how science operates.

Read the full statement

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A Patent Waiver Is Not a Silver Bullet in the Pursuit of Vaccine Equity

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Rather than a World Trade Organization patent waiver, Covid-19 vaccine equity requires measures with immediate effect on the manufacturing and distribution of vaccines in the Global South and improved compulsory licensing mechanisms.

The low level of Covid-19 vaccination in the Global South is ethically unacceptable and risks prolonging the pandemic. The patent waiver in discussion since 2020 within the World Trade Organization (WTO) will not solve these vaccination bottlenecks in the short-term. Instead, additional measures should be adopted to accelerate local manufacturing and distribution of vaccines in low- and middle-income countries (LMICs), ramp up investment in vaccination campaigns, and facilitate the compulsory licensing of patents and transfer of know-how.

ALLEA, the European Federation of Academies of Sciences and Humanities, released a statement today assessing the legal hurdles of the current patent waiver proposal for Covid-19 vaccines within the WTO. It also proposes alternative mechanisms to achieve vaccine equity and speed up the transfer of technology and know-how for vaccine roll-out across LMICs.

In particular, the statement advocates for (i) practical measures that could accelerate the production, export, distribution, and administration of vaccines worldwide and ii) an international mechanism affording additional scrutiny of the manufacturing bottlenecks combined with new measures in the intellectual property (IP) framework such as flexibility for the compulsory licensing of patents.

According to the experts, the current co-sponsored waiver proposal at the WTO is “not well-tailored to the urgent vaccine problem” and would require further national legislation to have any effect in practice. The statement upholds that a WTO waiver would only remove the obligation for WTO Member States to grant IP protection, but would not ensure that stakeholders can effectively benefit from the invention and related know-how.

“A waiver (in the sense of the co-sponsored proposal at the WTO) of IP protection, including of trade secrets, would never make this know how publicly accessible, but only remove the possibility for companies enjoying confidentiality protection to sue for trade secret infringement”, the experts argue.

There are other IPR measures to be considered instead. The WTO waiver debate has opened the floor to other IP fixes that are needed in the field of health. The WTO rules on compulsory licensing of health-related patents should be amended. Important adjustments to patents and trade secret protections should also be adopted by the EU, its Member States, and other countries. In particular, improved procedures and institutional design should help to streamline the process for compulsory licensing on pharmaceutical products, including vaccines.

Read the ALLEA Statement

About this Statement

This ALLEA statement has been prepared by ALLEA’s Permanent Working Group Intellectual Property Rights (PWGIPR) with Professor Alain Strowel as principal author. Through its working groups, ALLEA provides input on behalf of European academies of sciences and humanities to pressing societal, scientific and science-policy debates and their underlying legislation. With its work, ALLEA seeks to ensure that science and research in Europe can excel and serve the interests of society.