The recent explosion of the number and size of patent applications raises the issue of quality maintenance. The book puts forward issues to be addressed by patent policy in Europe: putting quality of patents first, making procedures stricter for applicants, reinforcing the integration of the system at the European level, and inscribing the economic mission of the system in the European Patent Convention so that the case law would integrate economic concerns.
Keywords: patents , intellectual property , innovation policy , competition policy , EPO , patent quality , patent design , patent strategy. Forgot password? Don't have an account? All Rights Reserved. OSO version 0. University Press Scholarship Online.
The EPO as patent law‐maker in Europe - Plomer - - European Law Journal - Wiley Online Library
Sign in. Not registered? Sign up. Publications Pages Publications Pages. More information is available from the organising committee. For information about the 3rd conference please visit the conference web page. Topics of Interest Theoretical, empirical and policy-oriented contributions from all areas of the economics of innovation and patenting are welcome. Senior Researcher. Birgit Aschhoff. Georg Licht.
Bettina Peters. Firms tend to patent more of their inventions when they are confronted with more intense competition.
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Weaker competition, due to regulation or high-entry cost, provides protection other than intellectual property rights IPRs to the innovations of the incumbents, which then have little reason to incur the cost of filing IPRs and disclosing their technology. However, as patents in turn reduce ex post the degree of competition on a market, it is difficult to observe correlation between patenting and competition at the market equilibrium. In knowledge-intensive industries, competition is based less on prices and current market share and more on new products and technologies and future market share.
The market power criterion is more fragile as the state of play can be reshuffled by new technologies. Substitute products are not the current competitors but the ones that will be on the market in the future [ 17 ].
In particular, Reitzig [ 18 ] shows that multiple patents per invention are filed in both discrete and complex technologies. In selected discrete technologies, patent fences may serve to exclude competitors whereas in complex technologies, patent thickets represent exchange forums for complementary technology.
The results expand on traditional views of profitable patent exploitation across industries, which suggest that different legislative issues arise from multiple patenting per innovation in complex and discrete technologies depending on the degree of technological complementarity. The results have unexpected policy implications in that they illustrate how patentees could eliminate competition in the form of substitute technologies through fencing.
In one case of the European Commission pharmaceutical sector inquiry, EU-wide patents patent clusters were filed for a single medicine. The inquiry pointed out that nearly cases of reported patent litigation with generic companies were filed. Although the generic companies won some of these cases, there were many settlement agreements for ending an ongoing litigation or dispute.
These specific settlements limited the entry to the market of the generic medicines and provided for payments from the originator to the generic companies. Further, Roox et al. Second, patent thickets and follow-up patents encompass unjustifiable extension of the monopoly by follow-up patents, multiple divisional patent applications that are entirely identical to the parent specifying data without linking it to the claims, second and subsequent use claims, and genuine incremental innovation compared to simple changes.
Third, patent litigation procedures include the complexity and unpredictability of litigation across the EU and improper granting of interim injunctions, Finally, other patent-related barriers cover patent linkage, statements to authorities, shifting consumer demand with marketing campaigns, supplementary protection certificates granted on the basis of incorrect information. Patents can be used in anti-competitive strategies, whose aim is to exclude other companies competitors from the market. In that context, patents are not just means to exclude competitors, they are instruments used by incumbent firms to raise entry barriers.
Patents are also used by new entrants to penetrate markets. Patents are used in standard-setting processes and for making alliances. This diversified role of patents renders their effect on competition more complex. Some anti-competitive strategies are clearly illegal, others are abuses of the system, permitting an undue extension of the exclusive right beyond the one granted by the patent office.
These practices can be deterred, and often are, by a close monitoring by competition authorities. A question raised to patent offices is to what extent could such practices be hampered upstream, by granting patents which would not facilitate, or would even hamper them? Could patent law and practice tackle some of these problems?
Pharmaceutical companies enjoy patent protection for their products. Once the patent has expired, producers of similar generic products can enter the market. Pharmaceutical companies that try to prolong patent protection for a product may breach EU competition rules. Such behaviour can also have the side effect of removing incentives to innovate as competition from generic products encourages the creation of new products.
The Economics of the European Patent System
In this respect, AstraZeneca was deemed to abused the patent system and the system for authorisation of medicines with the aim of delaying competition to a blockbuster drug from generic and parallel imported pharmaceuticals. The appeal is currently pending before the Court of First Instance. As a result of this first case, the Commission intensified the monitoring of competition in the sector of generic medicines.
The first findings indicate that competition in the market for human medicines may not be working well in Europe; fewer new medicines are being brought to market and the entry of generic medicines sometimes seems to be delayed. The Commission has therefore opened a sector inquiry to investigate the reasons for this [ 20 ]. The financial institutions have devised various tools for patent holders to obtain monetary value from their patents more promptly than collecting royalties from licences.
These mechanisms include securitisation based on anticipated royalty income streams, auction of patents, patent collateralisation, patent sale-lease-back arrangement, and patent litigation insurance. The European Commission opened formal proceedings in January after complaints were lodged in July because of non-requested services.
Without these unique numbers, securities cannot be exchanged, according to international agreements aimed at avoiding duplication and potential loss of assets. Internal Market Commissioner Charlie McCreevy has chosen to highlight the responsibilities of rating agencies on several occasions during the ongoing financial crisis.
The agencies stand accused of setting excessively high credit rates, which later turned insolvent [ 21 ]. In one of the scenarios on how might intellectual property regimes evolve by , patent pools are brought into account. Pharmaceutical companies still rely on patents, albeit with restrictions that ensure research exemptions and access for poorer nations.
Areas such as genetic diagnostics have adopted a system of licencing, patent pools and clearinghouses to ensure optimal use of available technologies. But major breakthroughs come from a thriving information and communication technology sector that enables new forms of disease prevention by combining sophisticated diagnostics, advice and the control of human behaviour using technology.
Epidemiological, pharmaceutical and genetic research is helped by huge inter-connected databases bringing genomic, clinical, familial and social data together on a worldwide scale. The first attempts at genetic enhancement are supported in large parts of society. Finally, complements to competition and patents are open source, open science, open access, open innovation and open standards.
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Open innovation prioritises partnering, licencing and venturing to combine internal and external sources of ideas and technologies. Open standards are publicly available specifications which give a common method of achieving a particular goal. Bentham Open ensures speedy peer review process and accepted papers are published within 2 weeks of final acceptance.
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