Book review: The Innovation Society and Intellectual Property

This Kat is very glad to add The Innovation Society and Intellectual Property to her EIPIN collection - a book series carried out under the auspices of The European Intellectual Property Institutes Network (EIPIN). 

This latest volume is edited by Prof. Josef Drexl (Max Planck Institute for Innovation and Competition) and Prof. Anselm Kamperman Sanders (Maastricht University). 

The title of the book was chosen as the theme of the two EIPIN conferences in 2015 (one in Maastricht and the other one in Munich). This Kat actually attended both, and it is nice to see that some of the papers presented at the two conferences were eventually further developed into book chapters! 

Backdrop 

This book looks into the relations between innovation, IP and society: innovation has been generally considered as a main condition for modern societies to prosper economically. Yet, the realisation of such prosperity depends on multiple factors, including IP legislation. 

All this said, as the editors point out:

It would be wrong to equate IPRs, or their subject matter of protection, with innovation. The relationship between the two is more complex. 

IP, as a tool, may function in different ways under changing conditions. With that in mind, the authors of this book adopt a uniform perspective, which moves from the idea that the existing IP systems may not always enhance innovation. They explore said complex relationship from three angles, which make up the three parts of the book. 

Part I IP Expansion: The Effect of New IPRs on Innovation 

Part I looks into three rights at the fringes of IP which have been experiencing much international proliferation. The uthors discuss, for each of the rights systems, whether, how and under which conditions they contribute to innovation. 

In Chapter 1, Uma Suthersanen explores the adoption of national laws on utility models as a strategy to promote innovation, especially for SMEs and individual inventors. In Chapter 2, Mrinalini Kochupillai looks into the international protection standard of plant variety defined by the UPOV Agreement, with a particular focus on India, and examines whether it is a good fit for the agricultural innovations in developing countries. Anke Moerland in Chapter 3 looks into the EU-promoted protection of Geographical indications (GIs), stressing that we shall not take GIs' potential of innovation-enhancing for granted, especially for developing countries, as it may well chock off the willingness of producers to improve on traditional products and production methods. 

Part II A Need to Limit the scope of IP? 

Part II turns to explore the thin line where pro-innovation legislation ends, and IP legislation starts to obstruct innovation. 

Chapters 4 and 5 are dedicated to public domain, and ask the question of whether the public domain should deserve special protection and legislative attention to achieve positive results for innovation. Kris Erickson, Martin Kretschmer and Dinusha Mendis examine the issue empirically, whilst Alexander Peukert develops a legal doctrine of the public domain (see p145). 

In Chapter 6, Ansgar Ohly takes a look at the EU trade mark system and legislation, where he aims to determine whether the protection against free riding on the reputation of trade marks is still legitimate and innovation-enhancing. In Chapter 7, Xavier Seuba and Elena Dan turn to the foreign IP policy of the EU in the field of enforcement, questioning whether the EU has fulfilled its promises to take account of the specific development needs of developing countries. 

The last two contributions of this part address reducing the potential for strategic use of patent rights in contravention of the innovation objective of IP legislation. In Chapter 8, Daryl Lim discusses the Kimble decision of the US Supreme Court which, while acknowledging the criticism of other judges and scholars, upheld the patent misuse doctrine as a necessary defence against use of rights where such use collided with the patent legislature’s intentions. In Chapter 9, Peter Picht analyses the role of EU competition law in restricting the availability of injunctive relief for standard essential patents holders who have committed to FRAND licensing. 

PART III New paradigms of innovation in IP 

In Chapter 10, Nari Lee takes 3D printing as an example to inquire whether current patent laws are opposed to the concept of open innovation. Chapter 11 concludes this volume with an analysis conducted by Matthias Leistner and Verena Roder-Hießerich on the limitations of existing EU copyright law to allow user generated content. 

Comment 

Tightly centred on the complex relationship between IP, innovation and societies, this book is well-organised as an engaging source of information to show readers where to look for answers, what the checks and balances within IP systems are, and to what extent the existing IP regimes are capable of catering to new paradigms of innovation and creativity. It will be certainly relevant to a variety of readers, basically anyone who has interest in IP legislation, promotion of innovation, and the relationship between IP and competition. 

Featuring contributions from known experts in the diverse fields of IP, the quality of the articles is unsurprisingly solid. The book might be an even more exciting read though, if the Part III contained more chapters instead of only two it had covered a wider scope of the issues emanating from the fourth industrial revolution (4IR), e.g., bio-, nano-, material technologies, big data, artificial intelligence and the internet of things (some of them are not new any more...). Since the book observes that there certainly is need for the established IP systems to cater appropriately for new innovation paradigms in the rapidly changing technological environment, it seems natural to bring more emerging technologies within the remit of the discussion. 

However, this volume is an overture, namely the first academic publication mirroring an enhanced step of research collaboration among the EIPIN partners and expressing their common policy objective to enhance the innovation society within Europe and beyond. Hopefully, there will be subsequent volumes that will continue developing a sound analytical and factual basis for balanced and well-informed policy making. To be continued!

Extent: 328 pp 

Hardback Price: £100.00 Web: £90.00 

Publication Date: 2019 

ISBN: 978 1 78990 234 1 

Availability: check here