The Role of Enforcement in Delineating the Scope of IP Rights

19 Pages Posted: 8 May 2015

See all articles by Reto Hilty

Reto Hilty

Max Planck Institute for Innovation and Competition; University of Zurich; Ludwig Maximilian University of Munich (LMU)

Date Written: May 1, 2015


According to an unbroken paradigm innovation and creation accrue from strong IP protection – the more the better. Increasing doubts from academic research are continuously ignored. Under-protection is the great concern. Over-exclusivity, however, is not a minor relevance. Lacking competitive pressure due to legally over-protected market positions eliminate incentives to invest as well. Hence, not a maximum, but the right degree of IP protection is required.

The current IP system tends to over-exclusivity; never in history was the level of protection reduced with a view to legitimate interests of third parties. As long as enforcement measures were of limited vigour, such overshooting tendencies of IP protection had little impact. With increased attention on enforcement measures, however, the over-protective legal design becomes visible. Such concerns, however, did not yet reach the policy makers, notably not on the EU level.

The lack of a balance IP policy in the EU is mirrored by the Directive 48/2004. By limiting the focus on the right, it mistakes that enforcement without limits risks not fostering, but impairing innovation and creation. The current evaluation of the Directive 48/2004 does not give cause for hope that such imbalances would be eliminated. Improvement opportunities, however, exist. Member States first of all should be obliged to establish remedies against dysfunctional enforcement; notably the denial of injunctive relief must become a common procedural instrument. Beyond that, over-exclusivity should be eliminated by dismantling certain property mechanism and replacing them through liability tools (such as extended grounds to claim for compulsory licensing).

Keywords: intellectual property, under-protection, over-protection, imbalance, TRIPS, ACTA, Enforcement Directive 48/2004, limits to enforceability, competition, market failure, 'one size fits all', liability approach, denial of injunctive relief, compulsory license

Suggested Citation

Hilty, Reto, The Role of Enforcement in Delineating the Scope of IP Rights (May 1, 2015). Max Planck Institute for Innovation & Competition Research Paper No. 15-03, Available at SSRN:

Reto Hilty (Contact Author)

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539


University of Zurich

Rämistrasse 74/7
Zürich, CH-8001

Ludwig Maximilian University of Munich (LMU)

Munich, 80539

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