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
Date Written: August 22, 2010
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.
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