Interdisciplinary Perspectives on Intellectual Property Law-Ethical, Legal & Economical Boundaries of IP Protection

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MRW on IPBy Sofia Moratti Baggio, Luana Joppert Swensson, Andrea Wechsler (MWFs)

The Max Weber Multidisciplinary Research Workshop “Frontiers in Intellectual Property Law”, held on 10th October 2012, was a unique opportunity to discuss the ethical, legal and economic boundaries of IP protection and to expose conflicting views on the granting of property rights for inventions and innovation.

The first session of the workshop, chaired by Michalis Rousakis, revolved around patentability, with a focus on the well-known Brüstle case as decided in October 2011 by the Court of Justice of the European Union (Case C-34/10 Oliver Brüstle v Greenpeace e.V.). In adopting a broad view on the notion of ‘human embryo’, the CJEU negated the patentability of a particular type of cells, developed in vitro from human embryonic stem cells and used for scientific research. The controversial judgment has been discussed both in academia and industry circles: it was argued that it has the potential of hampering the development of potentially life-saving medical treatment. After a presentation of the Brüstle ruling by Sofia Moratti Baggio, our guest Agnieszka Kupzok, researcher at the International Max Planck Research School for Competition and Innovation (IMPR-CI) in Munich (Germany) gave a comprehensive account of the impact of the ruling on the biotechnological sector, to the extent that it is known at this early stage. Kupzok concluded that the CJEU ruling strongly affects the biotech sector, due to the sector’s heavy reliance on the patent system. Researchers and biotech firms working with hESC will not be able to count on straightforward securing of investment through patenting. Kupzok also discussed the current position of the EU with regard to the financing of this type of scientific research, which has been excluded from the Horizon 2020 research funding scheme. The discussion was enriched by Yane Svetiev’s comments.

The second part of the workshop, chaired by David Pretel, adopted a more economic perspective on the interrelationship between IP protection and innovation. Particular emphasis was put on weak IP rights, research spill-overs and the incentive to innovate. Building upon the Brüstle case, the session investigated the conditions for the desirability of exclusive IP rights for innovators, as opposed to weak rights allowing for some degree of imitation and ex-post competition. Luigi Alberto Franzoni, professor of Economics at the University of Bologna (Italy), gave an talk on the economics of trade secrets, the other route to financing research when patenting is not possible. Franzoni concluded that a strong protection of trade secrets entails both benefits and costs, and extensively discussed the practical difficulties of retaining competition while transferring as much as possible industry profit to the first innovator. Luana Joppert Swensson commented brilliantly.

In his conclusions, David K. Levine, professor at Washington University in St.Louis (US) and currently chair in Economics at the EUI, focused on the economics dimension of the interrelationship between IP protection and innovation. From the audience, Ramon Marimon enriched the general discussion that followed with a brief report of his personal direct experience as an expert consultant on research policies for European Institutions