Table of Contents

Position Statement of the Max Planck Institute for Innovation and Competition of 25 May 2022 on the Commission's Proposal of 23 February 2022 for a Regulation on Harmonised Rules on Fair Access to and Use of Data (Data Act)

Josef Drexl, Max Planck Institute for Innovation and Competition, Ludwig Maximilian University of Munich (LMU)
Carolina Banda, Max Planck Institute for Innovation and Competition
Begoña Gonzalez Otero, Max Planck Institute for Innovation and Competition
Jörg Hoffmann, Max Planck Law Network - Max Planck Institute for Innovation and Competition
Daria Kim, Max Planck Institute for Innovation and Competition
Shraddha Kulhari, Max Planck Institute for Innovation and Competition
Valentina Moscon, Max Planck Institute for Innovation and Competition, University of Trento - Faculty of Law
Heiko Richter, Max Planck Institute for Innovation and Competition
Klaus Wiedemann, Max Planck Law Network - Max Planck Institute for Innovation and Competition

CRISPR/Cas Technology and Innovation: Mapping Patent Law Issues

Daria Kim, Max Planck Institute for Innovation and Competition
Reto Hilty, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich (LMU)
Elisabeth Hofmeister, Max Planck Institute for Innovation and Competition
Peter R. Slowinski, Max Planck Institute for Innovation and Competition
Miriam Steinhart, Max Planck Institute for Innovation and Competition

The Potential of Follow-On Innovation Financing Instruments to Support a Sustainable Transition

Natacha Estèves, MCI - The Entrepreneurial School
Alina Wernick, University of Helsinki - Faculty of Law
Suelen Carls, Bournemouth University, Max Planck Institute for Innovation and Competition

Artificial Intelligence and Intellectual Property Law: From Diagnosis to Action

Peter Georg Picht, University of Zurich - Institute of Law, Max Planck Institute for Innovation and Competition
Valerie Brunner, University of Zurich
Rena Schmid, Swiss Federal Institute of Intellectual Property (IGE)

U.S. State Approaches to Cannabis Licensing

Lucy Xiaolu Wang, University of Massachusetts Amherst - Department of Resource Economics, Max Planck Institute for Innovation and Competition
Nicholas Wilson, Ludwig Maximilian University of Munich, Faculty of Economics, Students

Collaborating Neuroscience Online: The Case of the Human Brain Project Forum

Ann-Christin Kreyer, Max Planck Institute for Innovation and Competition
Lucy Xiaolu Wang, University of Massachusetts Amherst - Department of Resource Economics, Max Planck Institute for Innovation and Competition

Digital Sequence Information between Benefit-Sharing and Open Data – How to Advance the Legal Framework

Irma Klünker, Humboldt University of Berlin, Weizenbaum Institute for the Networked Society
Heiko Richter, Max Planck Institute for Innovation and Competition

Caught in the Acts: Framing Mandatory Data Access Transactions Under the Data Act, Further EU Digital Regulation Acts, and Competition Law

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


MAX PLANCK INSTITUTE FOR INNOVATION & COMPETITION
RESEARCH PAPER SERIES

"Position Statement of the Max Planck Institute for Innovation and Competition of 25 May 2022 on the Commission's Proposal of 23 February 2022 for a Regulation on Harmonised Rules on Fair Access to and Use of Data (Data Act)" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 22-05

JOSEF DREXL, Max Planck Institute for Innovation and Competition, Ludwig Maximilian University of Munich (LMU)
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CAROLINA BANDA, Max Planck Institute for Innovation and Competition
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BEGOÑA GONZALEZ OTERO, Max Planck Institute for Innovation and Competition
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JÖRG HOFFMANN, Max Planck Law Network - Max Planck Institute for Innovation and Competition
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DARIA KIM, Max Planck Institute for Innovation and Competition
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SHRADDHA KULHARI, Max Planck Institute for Innovation and Competition
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VALENTINA MOSCON, Max Planck Institute for Innovation and Competition, University of Trento - Faculty of Law
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HEIKO RICHTER, Max Planck Institute for Innovation and Competition
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KLAUS WIEDEMANN, Max Planck Law Network - Max Planck Institute for Innovation and Competition
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On 23 February 2022, the European Commission issued a Proposal for a Regulation on harmonised rules on fair access to and use of data (Data Act). The overarching objective of the Proposal is to ‘ensure fairness in the digital environment, stimulate a competitive data market, open opportunities for data-driven innovation and make data available for all’. The Institute hereby presents its Position Statement that features a comprehensive analysis of whether and to what extent the proposed rules might reach the envisaged objectives. It comments on all parts of the Proposal, including the new IoT data access and use right. Finally, the Institute offers a set of recommendations as to how the proposed provisions should be amended in the legislative process to align them better with the objectives of the Data Act.

"CRISPR/Cas Technology and Innovation: Mapping Patent Law Issues" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 22-06

DARIA KIM, Max Planck Institute for Innovation and Competition
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RETO HILTY, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich (LMU)
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ELISABETH HOFMEISTER, Max Planck Institute for Innovation and Competition
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PETER R. SLOWINSKI, Max Planck Institute for Innovation and Competition
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MIRIAM STEINHART, Max Planck Institute for Innovation and Competition
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The paper provides a systematic overview of issues arising at the interface between CRISPR/Cas technology and patent law. In particular, it examines aspects related to the patentability of CRISPR/Cas-based methods of genome editing, on the one hand, and access to patented technologies, in view of the expanding CRISPR patent landscape, on the other hand. On the whole, our findings show that the case of CRISPR/Cas technology is prototypical of the policy dilemma in patent law as to how to balance economic incentives of multiple innovators in a cumulative innovation setting. The reviewed technical, legal and economic factors suggest the preconditions for technology underutilisation. While this paper presents the results of the exploratory phase of research, it sets a framework for the further, more targeted interdisciplinary examination of the identified issues.

"The Potential of Follow-On Innovation Financing Instruments to Support a Sustainable Transition" Free Download
Forthcoming in: T.Pihlajarinne,, J. Mähönen, P. N. Upreti (eds.): Intellectual Property Rights in the Post Pandemic World: an Integrated Framework of Sustainability, Innovation and Global Justice. Edward Elgar 2023, forthcoming.
Max Planck Institute for Innovation & Competition Research Paper No. 22-07

NATACHA ESTÈVES, MCI - The Entrepreneurial School
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ALINA WERNICK, University of Helsinki - Faculty of Law
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SUELEN CARLS, Bournemouth University, Max Planck Institute for Innovation and Competition
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In the transition to sustainability, innovation will play a crucial role. As the latter follows intricate paths and processes, IPRs might impede further innovation and slow down the transition to sustainability by blocking innovative technologies – or making it harder to access them. Yet, when adequately used, IPRs may foster knowledge exchange and shared learning. Open innovation - particularly open licensing – can support follow-on innovation by allowing for the circulation and combination of inputs from different actors and help solving the wicked problem of sustainability.

Aside from the mere practice of sharing one's IPRs to foster further innovations in an open innovation setting, the sustainable financing of follow-on innovation will be essential in the coming decades. Indeed, in a crisis-laden world and considering the - presumably - future economic downturns, the question of the financing of follow-on innovation will be critical. There is certainly a need to identify how and under which conditions intellectual property, follow-on innovation and financing models can work together towards a more sustainable world. As the R&D funding in the post-pandemic world might become scarce, uneven, and unpredictable, this article reviews whether some alternative means of funding innovation –particularly emerging blockchain-based solutions – could succeed at supporting follow-on innovation for the greater goal of sustainability.

"Artificial Intelligence and Intellectual Property Law: From Diagnosis to Action" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 22-08

PETER GEORG PICHT, University of Zurich - Institute of Law, Max Planck Institute for Innovation and Competition
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VALERIE BRUNNER, University of Zurich
RENA SCHMID, Swiss Federal Institute of Intellectual Property (IGE)

The use of "artificial intelligence" systems becomes ever more widespread and far-reaching. Technological and economic concepts for an AI-based future are about to be implemented. It is, hence, time for the intellectual property system to develop answers to the challenges brought about by AI. Against this background, Zurich University’s Center for Intellectual Property and Competition Law (CIPCO) has initiated a joint research project on AI/IP with the Swiss Intellectual Property Institute (IPI). A first stage of this project has evaluated the state of the legal and economic discourse. These insights form the basis for policy recommendations on how the intellectual property system ought to be adapted to AI-related developments. The present paper describes – as draft work in progress – the project setup and summarizes its results gained so far. In doing so, it addresses key AI/IP issues, including business models of AI innovation leaders, inventorship/creatorship of AI systems de lege lata and de lege ferenda, the DABUS litigation, the discussion on whether new types of IP rights are necessary to protect AI inventions, the allocation of entitlements and liability regarding such innovations, AI-related revisions in the guidelines of important patent and trademark offices, the use such offices make of AI tools, the need for new protection carve-outs (e.g. to foster text and data mining), as well as AI’s potential raising the bar-effect.

"U.S. State Approaches to Cannabis Licensing" Free Download
Forthcoming in: IJDP (International Journal of Drug Policy)
Max Planck Institute for Innovation & Competition Research Paper No. 22-09

LUCY XIAOLU WANG, University of Massachusetts Amherst - Department of Resource Economics, Max Planck Institute for Innovation and Competition
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NICHOLAS WILSON, Ludwig Maximilian University of Munich, Faculty of Economics, Students
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U.S. states have taken varied approaches to licensing cannabis businesses under federal prohibition, but up to now there is limited research on cross-state licensing approaches. This paper provides a systematic analysis of the current licensing strategies taken by all states that have passed medical cannabis laws (MCLs)/recreational cannabis laws (RCLs). We construct comprehensive data on cannabis business licenses offered in each state, as well as metrics for license categories, cost, and issuance volume. We then analyze patterns between these metrics, also considering how long ago states implemented MCLs/RCLs, qualitative licensing aspects, state ideology and voting preference, and state cannabis taxation data. We observe that states tend to license medical cannabis more restrictively than adult-use cannabis: i.e., by offering licenses in fewer categories, at higher cost, in lower issuance volume, and more often mandating vertical integration. Additionally, states that implemented MCLs/RCLs earlier tend to offer licenses in more categories, at lower cost, and in greater issuance volumes. Further, though states that implemented MCLs recently lean conservative and Republican, we do not observe clear relationships between ideology or voting preference and licensing policy. In our supporting results, we observe that a greater share of states with complex licensing structures impose non-retail price cannabis taxes than states overall, and we discuss how states have changed their licensing policies over time.

"Collaborating Neuroscience Online: The Case of the Human Brain Project Forum" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 22-10

ANN-CHRISTIN KREYER, Max Planck Institute for Innovation and Competition
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LUCY XIAOLU WANG, University of Massachusetts Amherst - Department of Resource Economics, Max Planck Institute for Innovation and Competition
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This paper analyzes user interactions on the public-access online forum of the Human Brain Project (HBP), a major European Union-funded neuroscience research initiative, to understand the utility of the Forum for collaborative problem solving. We construct novel data using discussion forum posts and detailed user profiles on the HBP Forum. We find that HBP Forum utilization is comparable to that of a leading general-interest coding platform, and that online usage metrics quickly recovered after an initial Covid-19-related dip. Regression results show that user interactions on the Forum are more active for questions on programming and in HBP core areas. Further, Cox proportional hazard analyses show that such problems are solved faster. Forum posts with users from different countries tend to be discussed more actively but solved slower. Higher shares of administrator support tend to solve problems faster. There are no clear patterns regarding gender and seniority. Our results suggest that building novel collaborative forums can support researchers working on complex topics in challenging times.