A Uniform Grace Period: Promoting International Research and Development Collaboration

Article by Karen E. Sandrik

Combating complex diseases, climate change, and the loss of biodiversity requires shared innovation on an unprecedented, global scale. Patent law plays a significant role in innovation, but to facilitate the coalescence of diverse groups of researchers, scientists, and innovators, policymakers need to increase the worldwide compatibility of patentability requirements. In particular, policymakers need to harmonize the so-called grace period, the specified period of time preceding the filing of a patent where an inventor’s own disclosures do not become part of the prior art.

This Article contends that the grace period variances between the five largest patent offices in the world—those of China, the United States, the Republic of Korea, Japan, and the European Union—decrease the likelihood of international coordination of research and international collaborative partnerships, as well as increase administrative costs and uncertainty. The solution, this Article argues, is for these five patent offices to adopt a semiuniform grace period that covers prepatent disclosures made in reasonable, research-related endeavors. The new, more synchronized grace period would provide a higher level of domestic and international certainty than currently exists. At the same time, the new grace period would preserve flexibility that is needed because of inevitable cultural differences and varying local needs of innovators.

About the Author

Assistant Professor, Willamette University College of Law.


91 Tul. L. Rev. 99 (2016)