From Opern Source Software to Open Patenting: What's New in the Realm of Openess?

42 International Review of Intellectual Property and Competition Law 804 (2011)

Posted: 11 Sep 2010 Last revised: 17 May 2014

See all articles by Maria Lillà Montagnani

Maria Lillà Montagnani

Bocconi University - Department of Law; Ask Research Center; New York University School of Law

Mariateresa Maggiolino

Bocconi University - Department of Legal Studies; Ask Research Center

Date Written: August 22, 2010

Abstract

This paper analyses the emerging Open Patenting (OP) phenomenon within the boundaries of Open Source (OS), and against the backdrop of Open Source Software (OSS). We argue that, by leveraging the existing IP rules, OSS and OP face some of the limits that the traditional paradigms used for explaining innovation and managing IPRs bear. Further, we maintain that OP differently from OSS is still a kaleidoscopic phenomenon whose boundaries are unsettled and very much affected by the industry to which the subject matter (or innovation) belongs.

Part I discusses the limits that affect the models traditionally used for explaining innovation and managing both its ownership and the bundle of rights that it generates. Part II pictures OS and analyzes the OSS features that make it an established and successful cultural, commercial and legal phenomenon. Part III describes some emerging episodes that belong to OP as well as the skepticism that they arise. Part IV concludes by setting the boundaries of OP and discussing an initial definition of it.

Suggested Citation

Montagnani, Maria Lillà and Maggiolino, Mariateresa, From Opern Source Software to Open Patenting: What's New in the Realm of Openess? (August 22, 2010). 42 International Review of Intellectual Property and Competition Law 804 (2011), Available at SSRN: https://ssrn.com/abstract=1663206

Maria Lillà Montagnani

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Ask Research Center ( email )

via Roentgen 1
Milan, 20136
Italy

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Mariateresa Maggiolino (Contact Author)

Bocconi University - Department of Legal Studies ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Ask Research Center ( email )

via Roentgen 1
Milan, 20136
Italy

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