Inventing Inclusive Patents. From Old to New Open Innovation

Kritika: Essays on Intellectual Property, vol. 1, P. Drahos, G. Ghidini & H. Ullrich (eds.), Edward Elgar, 2015, 206-277

46 Pages Posted: 22 Dec 2015

See all articles by Geertrui Van Overwalle

Geertrui Van Overwalle

KU Leuven - Centre for IT & IP Law (CiTiP)

Date Written: December 26, 2014

Abstract

Open innovation is the subject of increased scholarly debate. A lot of attention has thereby been paid to firm-centered open innovation, characterized by a for-profit motive and the interplay between patents and contracts, resulting in restricted openness. Inspired by the increasing call for more openness and triggered by the strong ethos of sharing in innovator communities the present paper examines how the law can assist in establishing a new approach to open innovation (‘new’ open innovation) and craft legal tools establishing universal and sustainable use of high quality, technical inventions going beyond the realm of software.

Resonating contemporary legal philosophy on property rights, we propose the introduction of a new, alternative patent: the inclusive patent. The inclusive patent is perceived as a one-sided right geared to include rather than to exclude others, and encompasses as an attribute the right to enforce sharing behaviour and take non-sharing users to court. The inclusive patent is further conceived as a registration patent obtainable at low cost. The inclusive patent regime may be developed as a semi-codified regime where the inclusive patent entitlement is provided by law and the open source copyleft type license is built on top by private parties, or as a fully-codified regime where the legislature imposes universal and sustainable access and use ex ante.

The inclusive patent may meet the needs of both innovator firms and innovator communities: it is a valuable alternative for firms making use of non-assert clauses and provides more legal certainty to users, and it meets the needs of innovator communities, and offers a powerful property entitlement to enforce the sharing ethos.

Keywords: Open innovation, Innovator Communities, User innovation, Patents, Public domain, Open source, Copyleft, Non-assert, Open hardware

JEL Classification: D23, D45, H 41, H51, I18, K11, L14, L 65, O31, O32, O34

Suggested Citation

Van Overwalle, Geertrui, Inventing Inclusive Patents. From Old to New Open Innovation (December 26, 2014). Kritika: Essays on Intellectual Property, vol. 1, P. Drahos, G. Ghidini & H. Ullrich (eds.), Edward Elgar, 2015, 206-277. Available at SSRN: https://ssrn.com/abstract=2705109

Geertrui Van Overwalle (Contact Author)

KU Leuven - Centre for IT & IP Law (CiTiP) ( email )

Sint-Michielsstraat 6 box 3443
Leuven, 3000
Belgium

HOME PAGE: https://www.law.kuleuven.be/citip/en/staff/00015469

Register to save articles to
your library

Register

Paper statistics

Downloads
195
Abstract Views
742
rank
156,940
PlumX Metrics