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We have been dealing with the COVID-19 pandemic for the past few months. Countries closed their borders, put travelers into quarantine and, when that didn’t reduce the spread of the virus, they instituted social distancing and lockdowns. The economy has slowed down and people fear moving about. Even worse, they fear for their livelihoods as many companies have either fired people or put them on enforced vacations. Only recently have some countries slowly begun opening their economies.

Many companies looked at their balance sheets with concern, wondering whether their income sources can survive this crisis and whether they can raise funds or even receive promised funding, both during and after the crisis.

The economy looks bad. Many people are predicting a significant depression, possibly even worse than the Great Depression. It is hard to think of anything positive.

But I am a patent attorney and therefore, I cheer any innovation I hear about. And I’ve heard of many innovations coming to solve the problems that we are facing. Hospitals were facing a shortage of respirators; various individuals and companies heard the call and found solutions, whether by using a single respirator for multiple patients or by building a respirator within a week from simple materials.

Face masks weren’t available, so people started sewing their own. In fact, the NY Times even printed a full page of mask sewing instructions!

We desperately need a vaccine, so the world’s vaccine experts, pharmaceutical companies and other scientists are working to find one. But that is only part of the project. They have to put it through clinical trials and then manufacture enough to immunize everyone in the World. I’ve read that there are competing theories of what kind of vaccine will work – no one knows which will work, but, since we will need significant manufacturing facilities, the pharmaceutical companies are trying to set up plants before the final vaccine has been determined.

And then there are the testing methods, the contact tracing methods and mobile apps. And then there are the changes to our lifestyles which are supported by new inventions and improvements on old products.

All of these and more. I cheer them all!

But I can’t help asking myself. Who’s taking care of their intellectual property? If they publish their ideas as soon as they have them, they won’t be able to file patent applications on their inventions. Most countries’ patent laws insist that an invention, to be patentable, has to have been kept secret until a patent application has been filed on it.

How does that work when we NEED these innovations in order to fight this virus? How do we reward the wonderful people who come up with the innovations? For their service, for their ideas, for their willingness to work for our health?

One country allows you to show off your invention before you have to file your patent application. You can raise funds, present at trade conventions, and generally try to drum up interest before having to lay out the money to protect your invention. That country is the United States. It has a one-year grace period during which your own publications (documents or presentations) cannot be brought against you.

The US grace period may provide a solution to these corona innovations. Once this difficult period is past us (which I hope will be within less than a year), the innovators can file patent applications on their innovations - at least, in the US.

Other countries should amend their patent laws to include a US style grace period. In my mind, a grace period encourages more innovation since it allows inventors to determine if their invention is worthwhile before needing to find the budget for patents. And by “worthwhile”, I don’t mean is it “patentable” but is it “marketable”, “sellable”, and “manufacturable”; in short, can a business be built around it? In the age of COVID-19, “worthwhile” means “does it save many lives?” or “does it help the economy recover while in the presence of COVID-19?”

In the context of COVID-19, we need to encourage innovators to bring their innovations to the public quickly. The US style grace period enables that, without penalizing the inventors from getting a patent later on. It also enables inventors to provide their ideas for free at this urgent time. In the future, when the need relaxes, then the inventors can decide whether to patent or not.

Clearly, the patent systems of the rest of the world need to adopt US style grace periods.


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