The project used various research methods: analysis of academic literature, of secondary statistical data, of websites, policy documents and legislation, and interviews (under Chatham House rules) with key actors. It used an analytical framework with two elements: willingness of key actors in the system to include (based on preferences and relative bargaining power), and capacity to include (based on change costs).
The project first analysed existing responsiveness mechanisms as used by the European Patent Organization (EPOrg), an international organization (IO) of 38 contracting states, with the European Patent Office (EPOff) as its executive branch. It also looked at IP Australia and the USPTO and their use of responsiveness mechanisms. It was found that such mechanisms are not abundant and not very well and/or frequently used. This is also true for so-called compulsory licensing, an instrument that has recently received renewed interest, also in light of the coronavirus pandemic.
The analyses then turned to the institutional set-up of the EPOrg, using a principal-agent approach. The EPOrg suffers from a multitude of agency issues, with ignorant primary principals (the contracting states), a highly symbiotic relationship between the supervisory principals (representatives from national patent offices) and the ultimate agent (the EPOff), and an inadequate incentive scheme. Similar problems were found in a comparative analysis that included the EPOrg, the European Union Industrial Property Office (EUIPO) and the Community Plant Variety Office (CPVO).
The project further looked into potential changes in substantive patent law, especially into the use of liability rules. It developed a three-pronged system of patents: (a) traditional patents with enhanced proportionality requirements, (b) inclusive patents with voluntary licensing, and (c) patents with compulsory licensing.
Finally, the project analysed the changes the Unitary Patent and the Unitary Patent Court may bring to the responsiveness of the system. In terms of institutional change the so-called UP/UPC patent package was a missed opportunity. The UP Regulation and the UPC Agreement do however introduce some substantial improvements to patent law. Use of these instruments for substantive patent law change comes with far less costs than EPC revision and can be used to that end in the future as well.
Project findings have been disseminated by means of two conference papers, a final research report and a policy brief.
