Table of Contents

Intellectual Property and International Law

Henning Grosse Ruse-Khan, University of Cambridge - Faculty of Law, Max Planck Institute for Innovation and Competition

Art. 3(a) SPC Legislation: An Analysis of the CJEU’s Ruling in Teva (C-121/2017) and a Proposal for Its Implementation

Roberto Romandini, Max Planck Institute for Innovation and Competition

Legal Challenges of the Changing Role of Personal and Non-Personal Data in the Data Economy

Josef Drexl, Max Planck Institute for Innovation and Competition, Ludwig Maximilian University of Munich

Framing Algorithms – Competition Law and (Other) Regulatory Tools

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

Two’s a Company, Three’s a Crowd: Contractual Deal Breakers in Securities-based Crowdfunding for Later-stage Venture Capital

Michael Moedl, Max Planck Institute for Innovation and Competition, Ludwig Maximilian University of Munich - Institute for Innovation Research, Technology Management and Entrepreneurship (INNO-tec)


MAX PLANCK INSTITUTE FOR INNOVATION & COMPETITION
RESEARCH PAPER SERIES

"Intellectual Property and International Law" Free Download
University of Cambridge Faculty of Law Research Paper No. 56/2018
Forthcoming in 'Handbook on Intellectual Property Research’ (edited by Irene Caboli and Maria Lilla Montagnani), Oxford University Press, 2019
Max Planck Institute for Innovation & Competition Research Paper No. 18-21

HENNING GROSSE RUSE-KHAN, University of Cambridge - Faculty of Law, Max Planck Institute for Innovation and Competition
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Written for a Handbook on Intellectual Property Research, edited by Irene Caboli and Maria Lilla Montagnani, this paper offers some thoughts on legal research that concerns or applies ‘international law’ concepts, perspectives and methodologies to intellectual property (IP). The idea is to discuss how research questions related to IP can be framed from the standpoint of international law. This begs an initial question: what do we mean by ‘international law’ and how does this relate to IP? The first section tackles these questions by offering a range of possible views on the notion of international (IP) law. Section two then considers how a multi-dimensional conception of international law frames research questions on IP. It also gives some more concrete examples of an international law approach to IP.

"Art. 3(a) SPC Legislation: An Analysis of the CJEU’s Ruling in Teva (C-121/2017) and a Proposal for Its Implementation" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 18-22

ROBERTO ROMANDINI, Max Planck Institute for Innovation and Competition
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On 25 July 2018 the Grand Chamber of the CJEU delivered the eagerly awaited decision on Art. 3(a) Reg. 469/2009 following the referral by Justice Arnold in Teva (C-121/2017). In answering the question what it means to be protected by the basic patent under Art. 3(a) Reg. 469/2009, the CJEU formulated a two-pronged requirement. In order to be eligible for a supplementary protection certificate (SPC) the product (i) must necessarily fall under the invention covered by the basic patent and (ii) be specifically identifiable in that patent. This further formula in the case law following Medeva (C-322/10) is open to a number of interpretations, the most restrictive of which is that the CJEU has adopted a core-inventive-advance test with the first prong and required an individual disclosure of the product with the second prong. This article proposes a purposive implementation of the decision which takes into account the policy goals underlying the CJEU case law. These goals are to prevent multiple SPCs for the same product in conjunction with a number of other active ingredients (“evergreening?), unless such combinations represent a “totally separate innovation? (C-443/12), and to prevent the grant of a certificate for monotherapy products that were developed by a third unrelated entity after the priority date of the basic patent. In order to achieve the first goal, an inventive-advance test is necessary, but also sufficient. In order to ensure the second goal, requiring a disclosure of the product in an individualized form is in some cases sufficient, but not necessary where the patentee has, after the priority date of the basic patent, developed the product and obtained the MA submitted in support of the application for a certificate. In view of the persistent lack of clarity of the case law, the article concludes with some thoughts on the role of the CJEU, the task of the lawmakers and the implication of the Unified Patent Court Agreement (UPCA) for the operation of the SPC system.

"Legal Challenges of the Changing Role of Personal and Non-Personal Data in the Data Economy" Free Download
Book chapter in Alberto De Franceschi and Reiner Schulze (eds), Digital Revolution – New Challenges for Law, Intersentia 2019
Max Planck Institute for Innovation & Competition Research Paper No. 18-23

JOSEF DREXL, Max Planck Institute for Innovation and Competition, Ludwig Maximilian University of Munich
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As a response to the growing challenges of the modern data economy, the General Data Protection Regulation (GDPR) provides an advanced level of protection of the privacy interests of persons living in the EU. Yet the legal challenges of the digital economy cannot be reduced to a conflict between the economic interests of firms and the privacy interests of citizens. Internet platforms operators as well as manufacturers of connected (‘smart’) devices also provide users with new and innovative digital services that often build and depend on the processing of a large amount of personal and non-personal data collected from the users. This has given rise to a series of new legal issues that go beyond classical data protection rules, such as whether the provision of data should be considered a counter-performance in the framework of EU consumer contract law, whether there is a need for recognizing a new data ownership right and whether the legislature should adopt new rules on data portability and data access to guarantee open and competitive markets in the digital sector. With a particular focus on the question of whether such rules should be limited to personal data, this article discusses these issues against the backdrop of a comprehensive regulatory theory that integrates the personality interests of data subjects as well as broader public interest grounds as objectives that need to be taken account of in addition to the classical economic objectives of guaranteeing functioning competitive markets and enhancing innovation. While this article rejects the logic that the legislature should feel obliged to recognise an economic data ownership right of the data subjects in ‘their’ data, it argues in favour of extending the application of consumer contract rules as well data portability and data access rules to also include non-personal data. In sum, the model advocated here is one of coexistence of a generally applicable data economy law, which will have to be spelled out in more detailed, often sector-specific rules, on the one hand, and strong protection of the privacy interests in personal data under the rules of the GDPR, on the other hand.

"Framing Algorithms – Competition Law and (Other) Regulatory Tools" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 18-24

PETER GEORG PICHT, University of Zurich - Institute of Law, Max Planck Institute for Innovation and Competition
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GASPARE LODERER, University of Zurich - Institute of Law
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As other fields of law, competition law is put to the test by new technologies in general and algorithmic market activity in particular. This paper takes a holistic approach by looking at areas of law, namely financial regulation and data protection, which have already put in place rules and procedures to deal with issues arising from algorithms. Before making the bridge and assessing whether the application of any such tool might be fruitful for competition law, the paper discusses important competition cases regarding algorithms, including the Google Shopping, Lufthansa and Facebook case. It concludes with some policy recommendations.

"Two’s a Company, Three’s a Crowd: Contractual Deal Breakers in Securities-based Crowdfunding for Later-stage Venture Capital" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 18-25

MICHAEL MOEDL, Max Planck Institute for Innovation and Competition, Ludwig Maximilian University of Munich - Institute for Innovation Research, Technology Management and Entrepreneurship (INNO-tec)
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Crowd-based means of funding are emerging as a valid novel way of providing scarce seed-finance for entrepreneurial ventures. In recent years, securities-based variants such as equity crowdfunding or initial coin offerings (ICOs) are increasingly attracting higher funding amounts than reward-based models, in particular for commercially oriented ventures. However, securities-based crowdfundings also come along with the more com-plex contracts, since they introduce a large set of new shareholders in the firm, possibly with voting, information and cash-flow rights. This might have implications for the ownership structure and future governance of a com-pany, and in turn influence the evaluations by prospective investors. This paper is concerned with exploring potential knock-out criteria in securities-based crowdfunding contracts and to what degree they serve as a deal breaker for the investment decision of subsequent professional venture investors. Using an explorative mixed methods approach, we find empirical evidence that, e.g., an inflated capitalization table owing to crowd investors holding direct securities in a company, redemption and voting rights by the crowd, as well as the non-existence of a drag-along clause, lead venture capitalists and business angels to refrain from an investment in an otherwise attractive but such-funded start-up firm. We conclude that contractual frictions play a decisive role in whether entrepreneurs can combine crowd-based means of funding with traditional forms of venture financing. Theoretical and managerial implications are discussed.

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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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