Creation and sharing of innovations: the role of opening mechanisms provided by patent law

Heinz Goddar, Melanie Müller and Jonathan Porath

Chapter 12 in A Modern Guide to Patents, 2025, pp 321-346 from Edward Elgar Publishing

Abstract: Over the last decades, increasing efforts have been made to make patents “better and better” in terms of enforceability. In particular, this has been done by imposing the provisions of the Trade Related Aspects of Intellectual Property Rights agreement (TRIPS) onto more and more countries. Consequently, a very strong fence surrounding “gardens of innovation”, protecting against unauthorized use of the fruits grown in such gardens by investors with expectation of high profits, has been created. However, according to the authors, far fewer efforts have been made to create conditions that enable the implementation of the provisions of Art. 7 TRIPS. Namely, to create better opportunities for Open-Innovation-Systems where certain market participants, particularly investors/inventors, create innovations in the protected “garden” and then provide useful conditions for a door in the fence (Art. 7 TRIPS etc.) through which others can gain access to the fruits of the garden under FRAND conditions, for example. It is interesting to look at the set of tools that patent laws, such as those in Germany, have made available to market players both on the investor and the user sides of the door in the protected garden. This article discusses how patent systems, as such, can improve the finding and determination of conditions under which the door in the fence can be opened. Typical examples of this are LOR provisions provided by, for example, Section 23(4) of the German Patent Act (GPA), combined with opening clauses for developing (like Section 11(2) GPA) and marketing (like Section 24(2) GPA) already patented items, as well as including proportionality provisions into patent laws (like Section 139(1) s. 3 GPA). Furthermore, it discusses how internal arbitration mechanisms of patent offices, such as the Board of Arbitration for Employee Inventions at GPTO, could be used to determine balanced licensing conditions. The changes to Section 139 (“injunctive relief”) of GPA in 2021 are discussed in detail, including specific considerations of how financial compensation might be determined for a patentee who is denied injunctive relief.

Keywords: Sharing of innovations; Licensing provisions; Proportionality; Arbitration mechanisms; Injunctive relief (search for similar items in EconPapers)
Date: 2025
ISBN: 9781035308590
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