The pandemic as a stress test of the patent system – a legal-economic re-examination of exclusivity, liability rules, open innovation, and complementary policy levers

• Applicants: Professor Dr. Ansgar Ohly; Dr. Martin Stierle
• Subject Area: Private Law ; Economic Policy, Applied Economics
• Term: from 2021 to 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 458653325

During the COVID-19 pandemic, the European patent system needs to prove that it can function under extreme circumstances. While certain institutions and market players emphasize its importance in the fight against SARS-CoV-2, others consider IPRs as a hindrance to urgently needed innovation. Indeed, the innovation incentive mechanism of patents relies on exclusivity – a concept that naturally appears to be diametrically opposed to the idea of a joint fight against a pandemic.This project will investigate whether the European patent system is fit for a pandemic or a similar state of emergency. The analysis is based on the general hypothesis that the structure of European patent law is a major driver for innovation in the Life Sciences Industry but might need finetuning and complementary policy measures for an even better functioning. Thereby, the project will focus on three main research questions: The first research question asks whether patent law provides sufficient exceptions to exclusivity to serve the public interest. The second research question asks whether patent law offers beneficial structures for open innovation during pandemics. The third research question asks whether society needs complementary policy measures to the patent system as drivers for innovation during pandemics. The pharmaceutical sector has been selected as a field of study for the analysis due to its importance in pandemic scenarios. The methodology of the study will rely mainly on a theoretical comparative analysis: comparative legal analysis and comparative statics in economics. Case studies and roundtable workshops will be carried out with multiple representatives of certain pharmaceutical companies, selected as representing best practices.This study will contribute to fundamental research questions within the relevant academic fields. Its results will also have the potential to serve policy makers, patent offices, courts and legislators in their future decision making contributing thereby to the public good.

• DFG Programme: Research Grants
• International Connection: France, Sweden, USA
• Cooperation Partners: Dr. Natacha Estèves; Professor Ove Granstrand, Ph.D.; Professor Marcus Holgersson, Ph.D.; Professorin Toshiko Takenaka, Ph.D.
• Co-Investigator: Professor Dr. Franz Hofmann