Innovation, Competition and Consumer Welfare in Intellectual Property Law
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Innovation, Competition and Consumer Welfare in Intellectual Property Law

Gustavo Ghidini

This authoritative book provides a comprehensive critical overview of the basic IP paradigms, such as patents, trademarks and copyrights. Their intersection with competition law and their impacts on the exercise of social welfare are analysed from an evolutionary perspective.
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Chapter 5: Intellectual Property and Regulation(s) of Competition

Gustavo Ghidini


1. Foreword The analysis thus far developed refers to the frequent interactions, within the paradigms of the various intellectual property rights, between the normative exclusionary features – expression of the protection of human innovation (utilitarian or intellectual) or the instruments evocative of a firm’s identity and image – and other aspects which are designed, even indirectly, to promote competitive dynamics, whether in terms of stimulating further and subsequent innovation or in terms of expanding the liberty of citizens to enjoy information (in a broad sense). Let me just recall the requirement for an adequate description and publicity for the invention for which a patent is filed; the limits of trademark registration as concerns descriptive expressions; the freedom to reverse engineer copyrighted software in order to allow interoperability with other programs, and so on. As argued above about said interactions (Ch. 1 § 6 and 7), systemic coherence requires that the exclusionary profiles of IPRs regime be interpreted consistently with the overarching principle of free competition – the latter to be construed in tune with other ‘social welfare’ objectives, also of constitutional rank, such as, for example, the promotion of science, research, culture. In this perspective, as we have seen, it seems too obvious, for example, that the scope of the patent should be strictly circumscribed (‘equivalents’ aside, of course) to what the inventor has effectively and specifically claimed and described. A similar need – and constitutional basis – affects the reconstruction of the relationship between IP law and the rules that directly govern competitive behaviours and...

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