Invoking the public interest in the European patent system

Abstract

European patent law is based on a balance between private rights and access. Both the encouragement of innovation and access to that information are in the public interest. However, it is argued that the public interest in access has been overwhelmed by practices that shift the balance towards the granting of patents in favour of the rights-holder and away from the public. This has occurred through a reliance on the public interest as being baked into European patent law coupled with narrow interpretations of exceptions and exclusions to patentability. This chapter suggests the introduction of a mechanism by which a consideration of the public interest could be invoked at any stage of the patent life cycle. Invoking the public interest is particularly key for emerging technologies - what is protected, and to what extent, should be questioned with the public interest as the focal point of decision-making.