Meeting our EIPIN Researchers in Munich: One year in – IP Innovation, Economics and Literature training, Fall 2018
The EIPIN-Innovation Society EU Marie Curie Researchers have taken centre stage at the latest four-day training at the Max Planck Institute for Innovation and Competition in Munich this fall 2018.
These fun and action-packed training days in MPI’s most vibrant and intellectually inspiring environment allowed all of us to present our current research questions and views in front of a most excellent assembly of prominent academics and practitioners in law and economics.
Kicking-off the trainings, Krish Jayaraman mapped out his multi-level analysis of progressive adaptations to innovation law & policy in the health sector in view of agency and stewardship theories and commercialization aims in the biomedical industry, and our resulting discussion kindled innovative perspectives of the public as principal and individual stakeholders as agents.
Girish Somawarpet shared his pyramid models to (re-)structure the patent system, questioning the so-called one-size fits all patent system, identifying sectoral diversity of innovation and looking into further needs for change from a dynamic economic or social value-based perspective of individualised stakeholder interests.
Niccolò Galli swiftly brought us up to speed on economic incentives and disincentives regarding his Patent Aggregation and Innovation: Competition Law (Re)Appraisal research and on the valuation of patent portfolios—wherein size potentially matters from an industry perspective, adhering to the adagium ‘bigger is better’ and seeking synergy ‘the whole is greater than the sum of parts’ for strategic offensive and defensive value in competition.
Maurizio Crupi took us along on his research expedition into Innovation within Tradition. He guided us along his path with central questions as to whether the (EU) sui generis system of protection by Geographical Indications for the link between origin and quality of certain agricultural products should be extended to non-agricultural products or handicrafts? And how this works in view of innovation and other economic rationales?
In this context we enjoyed a graphic discussion on fundamental issues of concurrence and positive and negative convergence of various other IP regimes such as copyright and trademark law with their own particular object of protection, limitations and exceptions in aims of fostering innovation. And this seamlessly intertwined with Jared Onsando’s presentations on Agribusiness and (re-)shaping the legal landscape in patent and plant breeder’s protections in view of European innovation policies. Jared also seeks to resolve overlapping issues, in particular between the patent systems and plant breeder protection regimes with a breeder’s exemption and requirements under international law (such as article 30 TRIPs on limited exceptions to patent rights in light of the Doha-declaration on TRIPs and public health).
Francesca Mazzi enlightened us with her visions on Patentability of 4th industrial revolution Artificial Intelligence generated inventions, questioning needs for reform of patentability standards in view of distinctions between human or AI generated inventions as well as public or inventor-focused innovation rationales. And we discussed the importance of dealing with these issues for innovative industries such as pharma wherein (control of) access to big data is likely to affect problem-solving and decision-making more and more as we go forward.
Vicente Zafrilla presented his research approach on the impact of Standard Essential Patent declaration on innovation and competition with a focus on over- and under-declaration and interests of patentees as well as implementers. Vicente seeks to introduce more coherency to the approaches of Essentiality and SEPs in present literature. This culminated in a great debate centering on the question whether Essentiality is a purely factual or legal standard or a mixed question of law and fact, hinging on technical and commercial factors as well as contextual claim construction. Various arguments were made on all sides and we recognized that—especially in FRAND disputes over patent pools—patentees, implementers and courts have not yet conclusively or universally allocated the burdens of SEP determinations.
Naina Khanna set out her research steps aimed at Balancing patent quality with effective enforcement, essentially questioning the quality of the granting offices’ patentability evaluations in view of post-grant invalidation—with a particular focus on innovation in the European pharma sector. In our en groupe discussion we further delineated challenging problems as to how patent quality and the patent presumption of validity could be strengthened either by legislative reform of the patentability requirements or by more or less strict application of the patentability requirements in pre-grant examination and post-grant review at patent offices or in courts—especially in view of the multiple interests involved (such as interests in fair protection for patentees, legal certainty for third parties or innovation and competition policies for states).
In presenting on the impact of the Unitary Patent (UP) package on innovation of startups, Letizia Tomada ably shifted our attention from economic incentives for startups to applicable law. Among other things, Letizia questions the implications for startups of international private law connecting factors which connect issues regarding European patents with unitary effect ‘as an object of property’ to the applicable national law of the relevant state that fulfils the greatest connection (either a participating Member State where the UP applicant has his residence, principle place of business or place of business, or otherwise Germany where the EPO has its headquarters – article 7 UP Regulation). And among our group we discussed the desirability of such application of national laws in view of European integration and potential issues of uncertainty, non-unification and discrimination.
Anastasiia Kyrylenko shared her research views on Enforcement of intellectual property rights and trade with a focus on EU influence on policy design in CARIFORUM and Eastern European trade areas. In our discussion we touched on several issues such as IP rule-making and rule-taking as bargaining chips in trade negotiations between developed and developing countries (IP demandeurs and demandés) and potential conflicts of interests in unity or diversity of legal standards and extraterritorial application of EU law.
We were in for a treat when Clara Ducimetière shared her animated views on protection of IP as investment in International Investment Agreements (IIA) from an EU perspective. Clara focused our attention on the equation of IP and investment in IIA definitions resulting in potential conflicts in the regimes of protection, the judicial landscape and with safeguards for moral rights, public health and the environment. Alternative purposive or conditional definitions came forth from our expert group discussion and concerns of setting aside national courts’ jurisdiction by IIA dispute resolution and private party litigation in public fora for IP and investment disputes were raised.
Tamar Kuchua further zoomed in on IP, innovation and judicial design in the EU. Tamar questions whether general or specialised court systems are best equipped to balance pluralistic interests in IP and innovation within the EU legal framework in view of socio-economic factors such as quality of decisions and cost or length of litigation. And we appreciated that it is challenging to devise such a proper comparative study of actual general or specialised courts, also considering definitional challenges and the endogenous character of – in principle – general courts that may gain specific IP expertise by handling high volumes of IP cases through ‘judicial learning’.
In sharing her research views Natasha Mangal called into question whether a more institutional approach should be adopted for EU copyright reform, in light of the working Canadian institutional model in the field of Collective Rights Management. The experts among us praised Natasha’s quest to specifically work out which market failures justify market interventions by specific institutional legislative reform, and commended the institutional legal basis in the EU directive on collective rights management and the actual developments in certain EU Member States as promising for research.
Collective Management Organisation issues are also central to Lucius Klobučník’s research. Lucius clearly and graphicly explained fundamental principles of CMO licensing and his views on innovative models for multi-territorial licensing of musical works for online use, as he is seeking solutions to the issues of fragmentation of rights with respect to such musical works. Our expert group discussion focused on two-sided market research opportunities, parallels between CMO and SEP licensing, and justifications of (non-)discriminatory license fee structuring.
As for the ongoing research of this editorial protagonist – Gerben Hartman – focusing on supranational jurisdiction of European decision-making institutions (i.e. courts or other tribunals), I presented my views on fitting courts such as the up and coming Unified Patent Court or Multilateral Investment Court in with the European Union legal framework. As I am questioning normative hierarchies of legal orders and whether the Court of Justice of the EU should take an exclusive or inclusive approach towards supranational jurisdiction or multilateral judicial cooperation regarding EU Member States as well as third countries—potentially (further) developing special relations with the EU such as the European Free Trade Area.
Our special thanks go to MPI and all experts on panel, including Josef Drexl, Annette Kur, Silke von Lewinski, Luisa Menapace, Stefano Baruffaldi, Andreas Sattler, Fabian Gaessler and Frank Müller-Langer, and to Jurgita Randakevičiūtė for her excellent organisational support. Together with these experts and our team of EIPIN researchers we enjoyed four most intellectually inspiring training days in Munich and we look forward to our next meeting.
Editorial by Gerben Hartman