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  • Series: Kritika: Essays on Intellectual Property x
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Edited by Gustavo Ghidini, Hanns Ullrich and Peter Drahos

The fields of intellectual property have broadened and deepened in so many ways, and at such pace, that there is a tendency for academic commentators to focus on the next new thing, or to react immediately to judicial developments, rather than to reflect more deeply on the greater themes of the discipline. Kritika: Essays on Intellectual Property is a series of books designed to fulfil this role by creating a forum for essays that take a critical, long-term approach to the field of intellectual property. Volume 2 covers issues such as inter alia the current limits of knowledge and approaches to intellectual property, a functional account of intellectual property rights, China’s approach to innovation and intellectual property, the emergence of multi-layered IP-protection for designed objects, and the trajectory of increased protection for intellectual property.
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Edited by Hanns Ullrich, Peter Drahos and Gustavo Ghidini

The fields of intellectual property have broadened and deepened in so many ways that commentators struggle to keep up with the ceaseless rush of developments and hot topics. Kritika: Essays on Intellectual Property is a series that is designed to help authors escape this rush. It creates a forum for authors who wish to more deeply question, investigate and reflect upon the evolving themes and principles of the discipline.
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Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

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Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

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Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

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Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

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Frederick M. Abbott

Patents are, in essence, a private right to tax. There is a fundamental question regarding the allocation of a monopolistic private tax to large industrial and post-industrial organizations: that is, does the power to collect a monopoly tax entail public responsibilities? The ‘genius’ of the industrialists that promoted the Paris Convention in the late 1800s was to bring the terminology of industrial ‘property’ into wide usage. The transition from ‘industrial property’ to ‘intellectual property’ is also significant from a linguistic standpoint. ‘Industrial’ conveys the sense of business orientation or commercial activity. ‘Intellectual’ conveys the sense of ideation or creativity. Consider the difference in public discourse if patents were referred to as ‘private monopolies’ or ‘private taxes’ instead of ‘intellectual property’. The Chairman of PharmaCo would seem a much less sympathetic figure when stating ‘the government has no right to interfere with my “private monopoly” or “private taxation scheme”’ than when stating ‘the government has no right to interfere with my “intellectual property”’. Terminology does matter. Scientists are feeding into a vast corporate and financial apparatus dedicated to maximizing financial returns, accompanied by gigantic payouts to corporate executives, and engaged in aggressive marketing campaigns. No level of patent-based rent extraction or private taxation is too high. There is no public or social responsibility other than that which may be imposed by class-action tort lawyers. We have watched the industry long enough to know that social responsibility must be legislated and enforced. Patents are not ‘intellectual property’. They are ‘private monopolies’ established by legislatures. As such, they should be subject to regulation in the nature of public utilities.

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Steven Anderman

The purpose of this chapter is to explore how the role of EU competition law has evolved as an external corrective to the balance struck by the IP laws between initial inventor and follow-on innovation and to offer a re-assessment of the economic thinking in the rule based interpretation of Article 102. Part I offers a summary of the balance struck within the IP laws between initial and follow on innovation. Part II explains how competition law has evolved into its role as a regulator of the conduct of IP owners and, in the process, occasionally correcting the limitations of the existing IP laws. Part III analyses the extent to which economic thinking plays a role in the rule-based case law of Article 102 and IPRs. The chapter concludes with some thoughts about the limitations of the role of competition law in restoring a more appropriate balance to the overall legal framework balancing the rights of first inventors with follow-on and cumulative innovation.

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Carlos M. Correa

Patents are often considered as creating a true ‘property’, comparable to the rights over a piece of land. But the exclusive rights granted by patents are based on the assessment of compliance with standards that are subjectively interpreted and applied by patent offices and courts. The boundaries of a protected invention are also subject to interpretation. Moreover, in granting patents a number of legal fictions are applied. This chapter examines some of these legal fictions. It intends to show how weak the grounds for creating monopolies over knowledge through the grant of patent rights often are.

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Miranda Forsyth

This chapter argues that local knowledge and innovation systems, which are often rendered invisible by the dominance of the global intellectual property system, should be included in intellectual property policy formulation in developing countries. The geographical focus of the discussion is Melanesia, where there are a range of existing systems for regulating access to knowledge and other intangible valuables, such as secrecy, magic, systems of exchange, naming and attribution rights. These systems of regulation are argued to be embedded within the social, cultural and political context of the societies they regulate. Failing to take these systems into account when extending the global intellectual property regime into new geographical contexts creates two problems. First, the creation of new forms of property rights is likely to interfere with existing systems in potentially corrosive ways. Second, the true value of these knowledge and innovation systems is missed by the global North, particularly the ways in which they suggest the need to expand our epistemic and metaphysical horizons. The chapter concludes by exploring the possibility of using intercultural legal pluralism to make room for these local systems in intellectual property regulation.