Balancing the quality of patents with effective enforcement of invalidity claims in the pharmaceutical industry in Europe
PhD student: Mrs N. Naina
Promotors: M. Pugatch, J. Drexl
Duration: 1/9/2017 - 31/8/2020
Patents are granted for new technology against the backdrop of the existing state of the art. They are thereby designed to signal innovation. Yet, especially in the pharmaceutical industry, the ratio of invalid patents has turned out to be particularly high. The reasons for this are manifold. One problem arises from an imbalance of information, characterized by the fact that the examiner at the patent office may be less-well placed than the applicant to know about the state of the art. Another problem relates to the very high number of patent applications also in the pharmaceutical industry. Therefore, claims in favour of raising patent quality are not necessarily economically sound since only a very few of these patents will result in viable and economically valuable drugs. This draws the attention to the judicial proceedings that are available for the nullification of patents. In sum, an innovation system that grants patents relatively easily should have very effective procedures for the nullification of patents. In Europe, the EPO provides a centralized system for the patent grant, but the national systems for invalidating patents remain very diverse. The thesis should explore what a more integrated European system should look like. Thereby, it should also evaluate the rules of the Agreement on a future Unified Patent Court as well as the regulation of the marketing of pharmaceuticals, which has an obvious impact on the incentives of firms to challenge the validity of patents. The topic is highly relevant for the functioning of the European innovation society. Wrongfully granted patents may prevent competitors from investing in the same field of technology, and invalid patents allocate income to right-holders without sufficient ground of innovation.