Table of Contents

FRAND Access to Open Standards and the Patent Exclusivity: Restating the Principles

Hanns Ullrich, Max Planck Institute for Innovation and Competition

The Effect of Compliance Time in Patent Examination: An Experimental Study

Sven Fischer, Newcastle University (UK) - Economics
Marco Kleine, Max Planck Institute for Innovation and Competition
Daniel John Zizzo, BENC and Newcastle University Business School, Newcastle University

Dynamics of Investor Communication in Equity Crowdfunding

Gregor Dorfleitner, Universität Regensburg
Lars Hornuf, University of Trier, Max Planck Institute for Innovation and Competition, Institute for Labour Law and Industrial Relations in the European Union (IAAEU)
Martina Weber, University of Regensburg - Department of Finance

Unwired Planet/Huawei: A Seminal SEP/FRAND Decision From the UK

Peter Georg Picht, University of Zurich - Institute of Law, Max Planck Institute for Innovation and Competition

Position Statement of the Max Planck Institute for Innovation and Competition of 26 April 2017 on the European Commission’s 'Public consultation on Building the European Data Economy'

Josef Drexl, Max Planck Institute for Innovation and Competition, Ludwig Maximilian University of Munich
Reto Hilty, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich
Jure Globocnik, Max Planck Institute for Innovation and Competition, Students
Franziska Greiner, Max Planck Institute for Innovation and Competition, Students
Daria Kim, Max Planck Institute for Innovation and Competition, Students
Heiko Richter, Max Planck Institute for Innovation and Competition, Students
Peter R. Slowinski, Max Planck Institute for Innovation and Competition, Students
Gintare Surblyte, Max Planck Institute for Innovation and Competition
Axel Walz, Max Planck Institute for Innovation and Competition
Klaus Wiedemann, Max Planck Institute for Innovation and Competition, Students


MAX PLANCK INSTITUTE FOR INNOVATION & COMPETITION
RESEARCH PAPER SERIES

"FRAND Access to Open Standards and the Patent Exclusivity: Restating the Principles" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 17-04

HANNS ULLRICH, Max Planck Institute for Innovation and Competition
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When technical standards are to be defined pursuant to the claims of a patent and, therefore, the use of the standard will necessarily infringe that standard-essential patent (SEP), the proprietor may commit to granting all users a license at fair, reasonable and non-discriminatory (FRAND) conditions as a way to promote acceptance of the standard by the market. However, the relationship between such FRAND licensing commitment and a patentee’s right to seek and obtain injunctive relief from patent infringement by standard implementers not (yet) having entered into a license agreement remains controversial. In Huawei Technologies v. ZTE, the Court of Justice of the EU has shown a way to overcome the tension between the protection of patents by prohibitory orders and open access to innovative standards that has its origin in general principles of commercial law rather than in competition law. In view of this new approach, the paper restates the legal principles that, as a matter of public policy, govern the interaction of patent protection and open standardization in the EU. These principles are the free choice of patent protection and of a standard setting organization pursuing a particular IPR policy, and the self-regulatory organization of open, innovative standard setting on the one hand, and, on the other, the complementary functioning of patent protection and institutionalized open standard setting as a way to promote innovation and its dissemination. That principled framework regulation of dynamic markets also calls for holding all market actors concerned responsible for exercising their freedom in conformity with rules of fairness so that, ultimately, the complementary public policies underlying patent protection and innovative standardization, respectively, will be satisfied. While competition law reinforces the rules for such responsible conduct, they rest on and need to be implemented by reference to the legal framework of open innovative standardization itself. By way of conclusion, the EU’s negotiation approach to determining the meaning of FRAND in a particular case is put in contrast to quasi-regulatory approaches that by assimilating a standard to an essential facility subject SEPs to a mandatory licensing rule and, therefore, also to determination of FRAND terms by administrative or judicial decision.

"The Effect of Compliance Time in Patent Examination: An Experimental Study" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 17-05

SVEN FISCHER, Newcastle University (UK) - Economics
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MARCO KLEINE, Max Planck Institute for Innovation and Competition
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DANIEL JOHN ZIZZO, BENC and Newcastle University Business School, Newcastle University
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Using controlled and incentivized decision experiments, we explore whether the length of compliance periods in patent examinations affects behaviour and the overall efficiency of the system. In our stylized experiments, participants decide in the role of a patentee who faces uncertainty about the prospects of the application and must invest real effort over an extended period of time, in order to reach a minimum threshold. Overall, we find some evidence that a very long time horizon outperforms a short one.

"Dynamics of Investor Communication in Equity Crowdfunding" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 17-06

GREGOR DORFLEITNER, Universität Regensburg
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LARS HORNUF, University of Trier, Max Planck Institute for Innovation and Competition, Institute for Labour Law and Industrial Relations in the European Union (IAAEU)
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MARTINA WEBER, University of Regensburg - Department of Finance
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In crowdfunding, start-ups can voluntarily communicate with their investors by posting updates. We investigate whether start-ups strategically use updates, which were previously shown to increase investments. To this end, we use hand-collected data of 751 updates and 39,036 investment decisions from the two major German equity crowdfunding portals Seedmatch and Companisto. We find evidence for strategic communication behavior of startups during an equity crowdfunding campaign. During the funding period, start-ups post updates with linguistic devices that enhance the group identity and the group cohesion. Furthermore, the probability of an update during the funding period increases with a strong competition of other contemporary crowdfunding campaigns.

"Unwired Planet/Huawei: A Seminal SEP/FRAND Decision From the UK" Free Download
GRUR Int., Oxford JIPLP, Forthcoming
Max Planck Institute for Innovation & Competition Research Paper No. 17-07

PETER GEORG PICHT, University of Zurich - Institute of Law, Max Planck Institute for Innovation and Competition
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With its decision in Unwired Planet (UWP) v. Huawei, Birrs J has not only handed down the first major ruling on SEP/FRAND issues in England but also decided a case that poses a number of questions which are key for this area of the law. Well aware of this, he has drafted a thorough and extensive opinion that is likely to have considerable impact – not only – on the development of EC law. Inter alia, the decision discusses the legal nature of an ETSI FRAND declaration; the question whether “FRAND? is a range or a single set of licensing conditions; the procedural component of FRAND; the existence of a qualified “unFRANDliness?-threshold below which competition law is not triggered; the sequencing of negotiation and litigation over FRAND licences; hard-edged vs. soft-edged discrimination; the role of “Comparables? for calculating FRAND; and the anti-competitiveness of offering a mixed portfolio of SEPs and non-SEPs.

"Position Statement of the Max Planck Institute for Innovation and Competition of 26 April 2017 on the European Commission’s 'Public consultation on Building the European Data Economy'" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 17-08

JOSEF DREXL, Max Planck Institute for Innovation and Competition, Ludwig Maximilian University of Munich
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RETO HILTY, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich
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JURE GLOBOCNIK, Max Planck Institute for Innovation and Competition, Students
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FRANZISKA GREINER, Max Planck Institute for Innovation and Competition, Students
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DARIA KIM, Max Planck Institute for Innovation and Competition, Students
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HEIKO RICHTER, Max Planck Institute for Innovation and Competition, Students
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PETER R. SLOWINSKI, Max Planck Institute for Innovation and Competition, Students
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GINTARE SURBLYTE, Max Planck Institute for Innovation and Competition
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AXEL WALZ, Max Planck Institute for Innovation and Competition
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KLAUS WIEDEMANN, Max Planck Institute for Innovation and Competition, Students
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This Position Statement responds to the Communication of 10 January 2017 by which the European Commission launched a public consultation on the future legal framework for data-driven markets that emerge in the course of the current digitization of industrial production and the advent of smart products in which sensors are embedded. In particular, the Position Statement comments the Commission’s ideas on a possible future data producer’s right as a means of promoting access to data. While the Max Plank Institute agrees that there are indeed instances where there is a need to “unlock data?, it rejects a data producer’s right. Rather, the Institute recommends considering more targeted data access rights that would specifically react to situations in which a manufacturer of smart products would otherwise try to reserve related markets for itself. The Max Planck Institute thereby takes inspiration from the data portability right that has already been implemented as part of the Basic Data Protection Regulation. Moreover, general principles on the design of data access regimes are developed. In sum, the Max Planck Institute favours a sector-specific approach to the introduction of a general data access right or a generally applicable data access regime. Sector-specific rules are especially needed for answering more concrete questions such as regarding the person entitled to claim access or the one of whether a data holder should be remunerated for granting access to data.

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The Max Planck Institute for Innovation and Competition Research Paper Series is a source for research papers authored by the Max Planck Institute for Innovation and Competition academic staff (Eds.: Prof. Josef Drexl, Dir., Prof. Dietmar Harhoff, Exec. Dir., Prof. Reto M. Hilty, Dir.). Papers cover topics on intellectual property law (copyright, patent, trademark law), competition law (law of unfair competition, antitrust law), innovation research and entrepreneurship. To access all the papers in this series please use the following URL: http://ssrn.com/link/Max-Planck-Innovation-RES.html

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