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Rethinking Intellectual Property

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini

Intellectual property law is built on constitutional foundations and is underpinned by the twin freedoms of freedom of expression and freedom of economic enterprise. In this thoughtful evaluation, Gustavo Ghidini offers up a reconstruction of the core features of each intellectual property paradigm, including patents, copyright, and trademarks, suggesting measures for reform to allow intellectual property to become socially beneficial for all.
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Chapter 2: Patent protection of innovation: a ‘monopoly’ with antibodies

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini


The exposition that follows will tentatively argue that the salient features of the patent regime (as basically shared by international, European, and most national legislations of industrialized countries),1 can largely be reconstructed in a functional perspective compliant with the criteria of systemic coherence and proportionality highlighted for all IPRs in Chapter 1 – a perspective whereby the protection of already achieved innovation coexists with the incentive for subsequent future innovation (substitutive or derivative). And whereby, in other words, the exercise of patent rights does not per se contrast, and often goes hand in hand, with the competitive dynamics of technological innovation, avoiding the creation and exploitation of rent-seeking positions – also to the benefit of consumers.2

This interpretative approach translates into a dual hermeneutic directive. On the side of ‘exclusion’, it is commensurate with – and in this sense reduces the essential scope of the protection against (economically significant) free riding3 – what is effectively ‘found’ (inventum) and claimed4 by the patent holder in terms of contribution to innovation. And on the side of ‘access’, it acknowledges significant room for giving both a voluntary and a mandatory green light to ‘willing licensees’ – to the further benefit of competition and consumers.5

This approach also implies, as will be articulated, that several evils attributed to patents (negative effects on dynamics of innovation and competition, and other eminent social interests)6 should ultimately be attributed to other, ‘external’ factors: firstly, to ‘bulimic’, over-protectionist interpretations of the discipline, in...

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