Kritika: Essays on Intellectual Property
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Kritika: Essays on Intellectual Property

Volume 1

Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

The field of intellectual property has 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. The Kritika: Essays on Intellectual Property series is a series of books that are designed to fulfill this role by creating a forum for essays that take a critical, long-term approach to the field of intellectual property. Breaking down the barriers of specialization, and laying the foundation for an emergent critical scholarship, this first book in the series brings together the leading scholars in the field to reflect deeply on the current state and future of their discipline.
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Chapter 7: Inventing inclusive patents: From old to new open innovation

Geertrui Van Overwalle


Open innovation is the subject of increased scholarly debate. A lot of attention has thereby been paid to firm-centered open innovation, characterized by a for-profit motive and the interplay between patents and contracts, resulting in restricted openness. Inspired by the increasing call for more openness and triggered by the strong ethos of sharing in innovator communities this chapter examines how the law can assist in establishing a new approach to open innovation (‘new’ open innovation) and craft legal tools establishing universal and sustainable use of high quality, technical inventions going beyond the realm of software. Resonating contemporary legal philosophy on property rights, we propose the introduction of a new, alternative patent: the inclusive patent. The inclusive patent is perceived as a one-sided right geared to include rather than to exclude others, and encompasses as an attribute the right to enforce sharing behavior and take non-sharing users to court. The inclusive patent is further conceived as a registration patent obtainable at low cost. The inclusive patent regime may be developed as a semi-codified regime where the inclusive patent entitlement is provided by law and the open source copyleft-type license is built on top by private parties, or as a fully-codified regime where the legislature imposes universal and sustainable access and use ex ante. The inclusive patent may meet the needs of both innovator firms and innovator communities: it is a valuable alternative for firms making use of non-assert clauses and provides more legal certainty to users, and it meets the needs of innovator communities, and offers a powerful property entitlement to enforce the sharing ethos.

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