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What the new EU unitary patent means for academics

The signature, on 19th February 2013, on a long awaited unitary patent, that is unlikely to be used in Italy, Spain, Poland and Bulgaria, opens the door for the implementation, on 1st January 2014, of a new European patent. This new single EU patent may, however, not change the way bench academics combine the filing of patent applications with peer-reviewed publications of their research results. It may nevertheless contribute to increasing acceptance of patents as brownie points during academic career evaluation or grant award evaluation. Research results that are published cannot be patented any more. However, filing a patent application does not have to be a delaying obstacle for academic publications. Indeed, according to Claude Quintelier, patent attorney at the European intellectual property company Gevers, in Brussels, Belgium, the decisive factor is the filing date of the patent application. “Once the academic text is drafted the publication can be filed as a patent application,” he says, adding: “It takes some more time and work at a later stage, but the filing date has been established.” Then, “from the first filing date it takes eighteen months to have it finalised. During that time it is safe to publish, because the filing has been established.” Restraints on publication imposed in some cases by those with a stake in the intellectual property produced would still apply with the new EU patent, according to Dirk Van Dyck, former vice-rector research at Antwerp University, Belgium. In Belgium, for example, if a researcher is paid for at least 50% by a university, the university has the right to claim patents on his work and to share in possible future revenues. The university also can force scientists to delay academic publications of research results to be patented for a period of two months. In the past, granted patents were not taken into consideration in academic evaluations and could have hindered the academic careers who have chosen to patent their work. “That’s normal,” says Bart Nelissen, technology transfer officer at Antwerp University. “Patents are limited to technical sciences. Faculties such as economy, literature or history have their own evaluation instruments.” Every institution and even every faculty nowadays can have an individual approach and can consider obtained patents as merits or not. However, this situation is changing and the existence of the new EU patent may help academic institutions value patents more, for instance, as a positive criterion when attributing funding. “The role of patents and licenses in university funding is still increasing,” comments Oswald Schröder, spokesman at the European Patent Office (EPO) in Munich, Germany. But “the awareness of many researchers about the opportunities the patent system offers is too small.” Sometimes they do not dispose of the knowledge or the right advisers, such as technology transfer officers, to establish the value of their intellectual property and protect it. Or, they might sell them or licence them out for too little money. Replacing the patenting difficulties experienced at EU level into a wider context, Van Dyck sees a bigger problem in the increasing inability of scientists to produce truly innovative work. He believes that the mechanisms of research evaluation themselves are problematic. “The system can encourage young scientist to concentrate their research on trendy, intensively researched areas. This makes it easier to publish intermediate results and have a useful number of publications and citations,” he says, “but when they choose for a brand new, innovative subject, it will take them much more time to publish as an early publication can awake possible competitors.” As result, he adds: “the system discourages pioneering research.”

Koen Mortelmans

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