Intellectual Property and Innovation Protection

Introduction xi

Chapter 1. The Rationale of the System and the Diversity of the Forms of Protection 1

1.1. Going back to the origins and goals of intellectual property law 1

1.1.1. Some historical points of reference 1

1.1.2. Some market failures that must be addressed 3

1.2. The formal tools of intellectual property law 5

1.2.1. Patents 6

1.2.2. Trademarks 7

1.2.3. Industrial design right 8

1.2.4. Other technological creations (utility patents, plant variety rights, etc.) 9

1.2.5. Copyright and neighboring rights 9

1.3. Informal means of protection 10

1.3.1. Trade secrets 11

1.3.2. Lead time 11

1.3.3. The control of complementary assets 11

1.3.4. Design complexity 12

Chapter 2. How Companies Choose these Tools 13

2.1. The factors behind the choice to use these different tools 15

2.1.1. Differences according to the country considered 15

2.1.2. Differences according to the size of the company 16

2.1.3. Differences according to the stage in the innovation process 17

2.1.4. Differences according to the type of innovation (process or product) 18

2.1.5. Another key factor: the types of market or technology considered 19

2.1.6. Marked preferences in relation to the sectors as well 20

2.2. The microeconomic effectiveness of protection 22

2.2.1. Which contribution is made to performances in terms of innovation? 23

2.2.2. Which links are there between patents and R&D profitability? 24

2.2.3. What is the value of patents? Between cost-benefit calculations and lottery logic 26

Chapter 3. How Effective is the System in Terms of Social Welfare? The Dimensions of the Problem 29

3.1. Intellectual property rights as a second-best solution 29

3.1.1. A blend of dynamic efficiency and static inefficiency 30

3.1.2. A right to try to exclude rather than a guarantee of monopoly 30

3.2. Looking for an effective patent 31

3.2.1. Which is the optimal term for patents and copyright? 32

3.2.2. Which is the optimal breadth of patents? 32

3.2.3. Which is the optimal height for patents? The issue of the patentability criteria 34

3.3. Several possibilities to best configure rights according to the general interest 35

3.3.1. Patents: a disclosure requirement that favors the diffusion of knowledge 35

3.3.2. The role of filter played by courts and by opposition and reexamination proceedings 36

3.3.3. Licensing and the interaction with competition policy 37

3.3.4. The regime of exceptions: the case of research exemption and fair use 39

3.3.5. The cost involved in obtaining and maintaining patent rights 40

Chapter 4. How Companies Use Intellectual Property 45

4.1. Defensive strategy 45

4.2. Licensing strategy 47

4.3. Cooperative strategy 50

4.3.1. Intellectual property, between currency and a form of sharing 51

4.3.2. Patents as signaling tools, especially in relation to finance 54

4.4. Movement strategy 56

Chapter 5. What is the Contribution Made to Emerging Forms of Innovation? 61

5.1. The challenges of the digital world and the new forms of innovation 61

5.1.1. The issues related to open-innovation practices 62

5.1.2. The requirements of innovation through reutilization and collective networked innovation 63

5.1.3. The digital revolution and the growing role of user-driven innovation and Big Data 63

5.1.4. Risks of mass counterfeiting linked to the development of 3D printing 65

5.2. The risk of adverse effects in the recent development of the patent system 66

5.2.1. Is an increasing number of patents stifling innovation in some sectors? 67

5.2.2. Problems encountered mostly by sectors based on incremental innovation 69

5.3. Two emblematic cases of considerable tension: biotechnologies and the software industry 70

5.3.1. Biotech: what kind of access to genetic resources and research tools? 70

5.3.2. The software industry: what kind of balance between copyright and patents? 73

5.3.3. What is the role of open-source software? 76

Chapter 6. The Main Trends of Intellectual Property Regimes 81

6.1. A reinforcement trend deriving mostly from America 81

6.2. A trend which is also present in Europe and Japan 83

6.3. Which multilateral framework should we consider, especially in relation to the needs of developing countries? 85

6.4. A reinforced copyright regime as well 88

Chapter 7. A System that is the Victim of its own Success or an Anomaly that should be Remedied? 91

7.1. The escalation of trademarks, industrial design rights, copyright, counterfeiting and piracy 91

7.2. A multiplication of patents of mixed quality and occasionally with vague outlines 93

7.3. Increased pressure on the judicial system 98

7.3.1. Patent-related disputes: frequency and costs that vary according to the sectors 99

7.3.2. The emergence of patent trolls 101

7.4. A new reform movement from the United States: the backlash? 106

7.4.1. Correcting the scope of patentability 107

7.4.2. Restoring the patent examination procedure and introducing a filter on copyright 109

7.4.3. Avoiding some excesses linked to disputes or blocking positions 111

Chapter 8. Overall Assessment and Conclusion 113

8.1. A possible lever for the countries' economic growth through the incentive to innovate 114

8.1.1. Some historical lessons 114

8.1.2. A diagnosis that remains contrasted and not sufficiently substantiated 117

8.2. A key factor for technology transfer and the dissemination of knowledge 118

8.2.1. Promoting technology transfer through transnational companies 118

8.2.2. A key tool for the regulation of knowledge flows 121

8.2.3. A key tool for the commercialisation of public research results 123

8.3. A joint evolution on a sectorial level as well 124

8.3.1. The case of semiconductors and software 125

8.3.2. Examples of past and present disruptive technologies 127

8.4. Status quo, reform or abolition? 129

8.4.1. A net benefit or a net cost for the economy and society as a whole? 129

8.4.2. Reforming rather than abolishing 134

8.4.3. The relation between innovation and the strength of rights: an inverted U-shape? 134

Bibliography 137

Index 147