The EPO has published a study incorporating the findings of its survey on the novelty requirement under the European Patent Convention (EPC) and the lack of a “grace period” in the European patent system. The study incorporates the results from the EPO’s survey on the grace period, which kicked off in December 2021.

The grace period is a period prior to the filing or priority date of a patent application during which an inventor can disclose his/her invention without destroying the novelty of the invention for patenting purposes. The EPO says that the grace period is at the centre of global discussions on the international harmonisation of substantive patent law. It is particularly important in Europe, since the European Patent Convention does not provide a grace period, a major difference with the US system.

Respondents to the survey mostly reported that the strict novelty requirements of the EPC present little or no difficulties. Nevertheless, the survey has also shown the needs of the university research sector, particularly in Europe, where academic disclosure can present problems for subsequent patent filings. Further, 7% of US applicants reported that pre-filing disclosures have caused their applications at the EPO to fail in the past. Taking the status quo as a baseline, the EPO estimates that if a grace period were to be introduced, it would potentially be used in 6% of applications.

The EPO says that the ultimate uptake of any future grace period in the European patent system would depend on its design, and particularly, on whether any limitations, declaration requirements or prior user rights were adopted to balance out the system. This would influence whether applicants modify their disclosure policies and behaviour. To read the EPO’s news announcement in full and for a link to the study, click here.