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  • Series: European Intellectual Property Institutes Network series x
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Edited by Josef Drexl and Anselm Kamperman Sanders

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Uma Suthersanen

Does the utility model law offer a robust ecosystem promoting innovation? Is it viable for a country to introduce a second-tier patent law on the basis that the defects of the patent system can be solved? This chapter considers the normative rationales for protecting subpatentable innovation by analysing the concept of utility model across several jurisdictions and through multiple timelines. The Chinese, German and South Korean experiences show that utility model protection may enhance the behaviour of SMEs within developing economies and develop the innovative capacity of economies at specific stages of their development. However, the Japanese and Australian case studies show that once national innovative capacities have been reached, the disadvantages of utility models outweigh the perceived advantages. The empirical evidence gathered in a multitude of studies suggest that the task of modelling an optimal utility model regime will be a highly complex and futile task.

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Mrinalini Kochupillai

Intellectual property (IP) protection regimes aim to avoid market failures associated with public goods and free riding on the one hand, and those associated with over protection on the other. This article revisits the market failure theory in the context of plant variety protection (PVP) regimes, with specific reference to the Indian regime in comparison with UPOV 1991. It finds that knowledge contained in formally bred/improved plant varieties do not meet the criteria of nonexcludability that characterizes public goods. The article argues that current PVP regimes and associated policies fail to recognize actual market failures that plague this field of innovations today, thereby introducing new forms of market failure rather than addressing existing ones. The new market failures that result from such regimes and policies perpetuate suboptimal dissemination and skew the balance of incentives away from informal (farmer level) innovations and in situ agrobiodiversity conservation.

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Anke Moerland

Geographical indications (GIs) and innovation do not seem to fit well together. A GI system requires applicants to stipulate the product specifications with which each user needs to comply in order to use the GI. Improvements to the GI-protected product require changes to these specifications. This may constitute a hurdle to innovation. This chapter analyses whether and how the GI system stimulates innovation. In particular, incentives to create new or improved products, services or production processes are identified on the basis of the rationales for protecting GIs. These incentives are linked to the different stages of the product development cycle and the relevant actor who is addressed by the incentive. Finally, the role of the State in promoting innovation is discussed.

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Kris Erickson, Martin Kretschmer and Dinusha Mendis

In this chapter, a new concept of the public domain is developed, focusing on the commercial and noncommercial potential of derivative products. This is needed for an empirical assessment of the value of the public domain. The traditional legal definition of the public domain takes the copyright term as the starting point, and defines the public domain as ‘out of copyright’. We argue that the public domain matters to society and the economy only when it is used. This requires an assessment from a behavioural perspective, covering all uses that are possible without asking for permission. The resulting complexity (subject matter not qualifying for protection, use relating to underlying ideas, copyright exceptions, private ordering through permissive licensing) needs to be filtered by practices in the media and entertainment industries that are understood to enable unrestricted downstream exploitation. We demonstrate how this conceptual approach can be applied to empirical study in the legal setting of the UK.

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Alexander Peukert

This chapter asks whether there are any provisions or principles under German and EU law that protect the public domain from interference by the legislature, courts and private parties. In order to answer this question, it is necessary to step out of the intellectual property (IP) system and to analyse this body of law from the outside, and - even more important - to develop a positive legal conception of the public domain as such. By giving the public domain a proper doctrinal place in the legal system, the structural asymmetry between heavily theorized and protected IP rights on the one hand and a neglected public domain on the other is countered. The overarching normative purpose is to develop a framework for a balanced IP system, which can only be achieved if the public domain forms an integral part of the overall regulation of information.

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Ansgar Ohly

The link between trade marks and innovation is less obvious than the role of patents as incentives for technological progress. But trade marks do play an essential role in a market economy. They create ‘channels of communication’, without which consumers could not make reliable distinctions between competing products and services. This information asymmetry would also undermine producers’ incentives to offer high quality and high image products. While the positive economic effects of protection against confusion seem to be generally accepted, the merits of antidilution and antimisappropriation provisions are less certain. Sometimes trade marks can even create obstacles to innovation. This chapter argues that policy makers and courts should be aware that trade marks are not fully fledged property rights over words or devices, and that their protection should remain restricted accordingly.

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Xavier Seuba and Elena Dan

Two key policy documents depict and organise the activities of the European Union aimed at ensuring the enforcement of intellectual property rights in third countries: the 2004 and 2014 so-called strategies for the enforcement of intellectual property rights in third countries. This chapter introduces the content of both documents and assesses the main changes produced between 2004 and 2014. It holds that the changes introduced in the 2014 Strategy represent a good assessment of the past decade and the interests at stake, particularly those of a social nature. However, the European Union activity does not seem to be fully coherent with what is announced in the 2014 Strategy. This finding mainly results from the analysis of the preferential trade agreements concluded by the European Union between 2014 and 2017, but also from the economic estimates, methodologies and background described in the 2014 Strategy.

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Daryl Lim

Like a ‘one–two’ punch, Actavis and Kimble spell the death knell for the Federal Circuit’s formulation of patent misuse. The Supreme Court in Actavis recognized that patentee conduct which constituted misuse would constitute an antitrust violation as well. Since the threshold for liability is lower under patent misuse, it must follow that the immunity from patent misuse conferred under the Federal Circuit’s formulation has now been debunked by Actavis. The second blow comes from Kimble, which rejected the rule of reason formulation that the patentee in that case had attributed to Federal Circuit jurisprudence. It follows that the approach based on patent policy as laid down in Morton Salt has been implicitly reinstated as the correct approach to misuse analysis.

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Peter Georg Picht

The contribution describes the advantages of standard setting, but also the risks it involves, including holdup and holdout. After delineating the respective scopes of application of Art. 101 TFEU and Art. 102 TFEU in SEP/FRAND cases, the contribution discusses whether and when SEP ownership conveys a dominant market position. As to abuse, it proposes an overarching test that looks at whether the use of an SEP undermines the beneficial functions of standardization, namely: (1) technology selection; (2) access to technology and standard; and (3) the passing on of standard generated benefits to the public. This test may be helpful in tackling the three main types of SEP/FRAND cases discernible at present, viz. the ‘ambush cases’, the ‘portfolio transfer cases’ and the ‘FRAND dispute cases’. After briefly characterizing these case types, as well as the main forms of sanctions for SEP-based abuse of dominance, the contribution discusses the CJEU’s decision in Huawei/ZTE and some key questions resulting from it.