To publish or patent? EU study addresses scientists' dilemma

Brussels, 01 March 2002

A survey published by the European Commission has found that academia favours the protection of scientific results when they are first published, before a patent has been granted, whereas industry is against such an initiative and SMEs remain divided on the issue.

The survey was requested in accordance with the EC Directive on 'The legal protection of biotechnological inventions', which requires that the Commission produce a report assessing the implications for genetic engineering research of failure to publish, or late publication of papers on subjects which could be patentable. The research was carried out by the European Commission's Internal Market and Research DGs.

Research institutes, universities and small biotech companies sometimes wish to file patent applications, but at the same time want to disclose the results of their research to the scientific community and investors as quickly as possible. The conflict between protection and publication can lead to a delay in the publication of scientific results and thus slow down the dissemination of scientific knowledge and therefore progress. An efficient patent system however ensures the publication of results that might otherwise have remained confidential.

The survey found that publication delays do occur, but less frequently the more experienced the user of the patent system is. With experienced users, significant delays occur in less than 20 per cent of all cases (20 per cent for academic institutions and 8 per cent for industry).

'It is quite clear that small and innovative companies as well as young researchers need European patent protection. This is particularly true for fast moving sectors such as biotechnology, where Europe has a real chance to become a world player and to create employment. The Commission has stated clearly in its strategic plan for life sciences that a level playing field is needed in patent protection for industrialised countries,' said EU Research Commissioner Philippe Busquin.

'This survey once again underlines the demand for cheap and easily accessible patent protection valid throughout the EU. It is therefore vital that our proposal for a Community patent is adopted urgently,' added Internal Marked Commissioner Frits Bolkestein.

The report recommends efforts to define and harmonise the concept of a 'grace period' across the EU, but warns that a new patenting system will only work at global level if it provides legal certainty, which is a major concern of the industrial users of the patent system.

The report also suggests that, in order to facilitate the use of the patent system by academics and SMEs (small and medium sized enterprises), a provisional patent application system is introduced in all Member States, support and advice for academics and SMEs in the proper use of the patent system and the strategic use of intellectual property rights is provided and ultimately, a simple and cost-effective patent system is provided by the Community patent.

Responses from industry and public research organisations varied on how they thought publication delays could best be avoided. Industry of all sizes favoured the provisional patent application as the most effective measure and large industry was strictly against a grace period.

Academia favoured the grace period as the most important measure to minimise delays in scientific publication, with support and advice for patent filing ranking in second place. The research showed that almost half of the surveyed researchers from academia that have no previous experience with the patent system expect it to lead to considerable delays. The report writers therefore recommend the implementation of awareness actions and support activities to counteract these perceptions and to help researchers become more familiar with the patent system.

To see the full study, please consult the following web address: http://europa.eu.int/comm/internal_mark et/en/indprop/com02-2en.pdf

CORDIS RTD-NEWS/© European Communities, 2001