Increasing access to patented inventions by post-grant measures

Abstract

This paper builds on the recommendation in the Scientific and Technological Options Assessment report for the European Parliament to improve the European patent system to 'increase access to patented inventions'. The paper first provides some background information on the patent system and the limitations on access to protected technology from 'thickets' and the so-called 'tragedy of the anticommons'. It then discusses the use of (some) post-grant measures to increase access to patented inventions. Traditionally, patent law has not paid much attention to such measures. The paper argues that developments suggest that there is good reason to reconsider this reluctance and to include measures in the European patent legislation which seek to increase access to patented inventions. Finally, the paper discusses three such measures: compulsory licences, licences of rights, and behavioural rules.