Grace Period Harmonization in the Open Innovation Era

Abstract

This article urges European companies to discard their prejudices and work with their patent offices to adopt a grace period in the European Patent Convention (‘EPC’) in exchange for the United States’ reconciliation of the definition of the prior art, harmonizing the differences remaining after the America Invents Act (AIA). The negative view that European companies have taken of a grace period is contrary to the experience in Japan, where an unrestricted grace period helped large companies engage in open innovation and increase their use. Empirical studies have substantiated the negative impacts of the lack of a grace period on European SMEs and Universities. After highlighting the differences in the prior art under AIA and EPC, this article will conclude with a proposal for a 12-month, U.S.-style grace period to harmonize the patent systems in Paris Union member states. The adoption of this proposed grace period would result in a win-win outcome for both the United States and European countries.