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.
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.
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.
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.
Although intellectual property law is a distinctively Western, modern, and relatively young body of law, it has spread all over the world, now encompassing all but a very few outsiders such as Afghanistan, Somalia, and Vanuatu. This chapter presents three legal transfers that contributed to this development: first, from real property in land and movables to intellectual property in the late eighteenth century in Western Europe; second, from Western Europe, in particular from the United Kingdom and France to the rest of the world during the colonial era in the nineteenth and early twentieth century; third, from the protection of new knowledge to the protection of traditional knowledge, held by indigenous communities in developing countries, on 5 August 1963. This story illuminates how legal transfers in a broad sense – including, but not limited to legal transplants – drive the evolution of law.
The chapter asks whether digital-network driven cooperation is displacing the old, exclusivity-based paradigm of intellectual property; and reaches the conclusion that, yes, indeed, we are witnessing a twilight of exclusivity in intellectual property, but only up to a point. First, network-driven cooperation, based on the feature of digital resources which makes them non-rival (not only in consumption, but also) in production, seems to be displacing the incentive provided by exclusivity more in the field of creativity than of technological innovation, also, more in copyright-based than in patent-based areas; second, even in connection with creativity, the emergence of a new paradigm of creativity appears to be complementary, rather than alternative, to the continued role of more traditional (‘legacy’) businesses. Also in the field of technological innovation, however, the roughest edges of exclusivity seem to be tempered by a number of mechanisms, which go from the resort to liability (rather than property) rules to the reliance on private ordering. The chapter also argues that it is time for IP lawyers to look at the impact the digital environment has on IP-related transactions and the private law tools used to effect them. The case is made that the role of contracts is becoming recessive; and that more and more the floor is taken by unilateral acts which functionally embody the gift and cooperation goals of the digital environment and structurally have to deal with the technological determinants of the transactions (including non-rivalry in re-use of digital resources). Throughout the chapter, digital platforms are seen as a challenge – and a threat – not only to legacy businesses but also to network-driven cooperation and sharing.