12: Creation and sharing of innovations: the role of opening mechanisms provided by patent law
Over the last decades, increasing efforts have been made to make patents “better and better” in terms of enforceability. In particular, this has been done by imposing the provisions of the Trade Related Aspects of Intellectual Property Rights agreement (TRIPS) onto more and more countries. Consequen...
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| Format: | Online |
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Edward Elgar Publishing
2025
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| Online-Zugang: | https://directory.doabooks.org/handle/20.500.12854/162715 |
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| author | Goddar, Heinz Müller, Melanie Porath, Jonathan |
| author_browse | Goddar, Heinz Müller, Melanie Porath, Jonathan |
| author_facet | Goddar, Heinz Müller, Melanie Porath, Jonathan |
| author_sort | Goddar, Heinz |
| collection | Directory of Open Access Books |
| description | Over the last decades, increasing efforts have been made to make patents “better and better” in terms of enforceability. In particular, this has been done by imposing the provisions of the Trade Related Aspects of Intellectual Property Rights agreement (TRIPS) onto more and more countries. Consequently, a very strong fence surrounding “gardens of innovation”, protecting against unauthorized use of the fruits grown in such gardens by investors with expectation of high profits, has been created. However, according to the authors, far fewer efforts have been made to create conditions that enable the implementation of the provisions of Art. 7 TRIPS. Namely, to create better opportunities for Open-Innovation-Systems where certain market participants, particularly investors/inventors, create innovations in the protected “garden” and then provide useful conditions for a door in the fence (Art. 7 TRIPS etc.) through which others can gain access to the fruits of the garden under FRAND conditions, for example. It is interesting to look at the set of tools that patent laws, such as those in Germany, have made available to market players both on the investor and the user sides of the door in the protected garden. This article discusses how patent systems, as such, can improve the finding and determination of conditions under which the door in the fence can be opened. Typical examples of this are LOR provisions provided by, for example, Section 23(4) of the German Patent Act (GPA), combined with opening clauses for developing (like Section 11(2) GPA) and marketing (like Section 24(2) GPA) already patented items, as well as including proportionality provisions into patent laws (like Section 139(1) s. 3 GPA). Furthermore, it discusses how internal arbitration mechanisms of patent offices, such as the Board of Arbitration for Employee Inventions at GPTO, could be used to determine balanced licensing conditions. The changes to Section 139 (“injunctive relief”) of GPA in 2021 are discussed in detail, including specific considerations of how financial compensation might be determined for a patentee who is denied injunctive relief. |
| format | Online |
| id | doab-20.500.12854ir-162715 |
| institution | Directory of Open Access Books |
| language | eng |
| publishDate | 2025 |
| publishDateRange | 2025 |
| publishDateSort | 2025 |
| publisher | Edward Elgar Publishing |
| publisherStr | Edward Elgar Publishing |
| record_format | ojs |
| spelling | doab-20.500.12854ir-1627152025-07-10T11:50:41Z 12: Creation and sharing of innovations: the role of opening mechanisms provided by patent law Goddar, Heinz Müller, Melanie Porath, Jonathan Sharing of innovations; Licensing provisions; Proportionality; Arbitration mechanisms; Injunctive relief KJD LNRD KJMK Over the last decades, increasing efforts have been made to make patents “better and better” in terms of enforceability. In particular, this has been done by imposing the provisions of the Trade Related Aspects of Intellectual Property Rights agreement (TRIPS) onto more and more countries. Consequently, a very strong fence surrounding “gardens of innovation”, protecting against unauthorized use of the fruits grown in such gardens by investors with expectation of high profits, has been created. However, according to the authors, far fewer efforts have been made to create conditions that enable the implementation of the provisions of Art. 7 TRIPS. Namely, to create better opportunities for Open-Innovation-Systems where certain market participants, particularly investors/inventors, create innovations in the protected “garden” and then provide useful conditions for a door in the fence (Art. 7 TRIPS etc.) through which others can gain access to the fruits of the garden under FRAND conditions, for example. It is interesting to look at the set of tools that patent laws, such as those in Germany, have made available to market players both on the investor and the user sides of the door in the protected garden. This article discusses how patent systems, as such, can improve the finding and determination of conditions under which the door in the fence can be opened. Typical examples of this are LOR provisions provided by, for example, Section 23(4) of the German Patent Act (GPA), combined with opening clauses for developing (like Section 11(2) GPA) and marketing (like Section 24(2) GPA) already patented items, as well as including proportionality provisions into patent laws (like Section 139(1) s. 3 GPA). Furthermore, it discusses how internal arbitration mechanisms of patent offices, such as the Board of Arbitration for Employee Inventions at GPTO, could be used to determine balanced licensing conditions. The changes to Section 139 (“injunctive relief”) of GPA in 2021 are discussed in detail, including specific considerations of how financial compensation might be determined for a patentee who is denied injunctive relief. Published 2025-07-10T11:50:39Z 2025-07-10T11:50:39Z 2025-06-24 chapter 9781035308606 https://directory.doabooks.org/handle/20.500.12854/162715 eng image/jpeg Attribution-NonCommercial-NoDerivatives 4.0 International https://www.e-elgar.com/shop/gbp/a-modern-guide-to-patents-9781035308590.html https://www.elgaronline.com/edcollchap-oa/book/9781035308606/chapter12.xml Edward Elgar Publishing Edward Elgar Publishing 10.4337/9781035308606.00026 10.4337/9781035308606.00026 01ceac28-75b4-492a-8eec-f9b98bc6b28c https://creativecommons.org/licenses/by-nc-nd/4.0/ 9781035308606 Edward Elgar Publishing Cheltenham, UK open access |
| spellingShingle | Sharing of innovations; Licensing provisions; Proportionality; Arbitration mechanisms; Injunctive relief KJD LNRD KJMK Goddar, Heinz Müller, Melanie Porath, Jonathan 12: Creation and sharing of innovations: the role of opening mechanisms provided by patent law |
| title | 12: Creation and sharing of innovations: the role of opening mechanisms provided by patent law |
| title_full | 12: Creation and sharing of innovations: the role of opening mechanisms provided by patent law |
| title_fullStr | 12: Creation and sharing of innovations: the role of opening mechanisms provided by patent law |
| title_full_unstemmed | 12: Creation and sharing of innovations: the role of opening mechanisms provided by patent law |
| title_short | 12: Creation and sharing of innovations: the role of opening mechanisms provided by patent law |
| title_sort | 12 creation and sharing of innovations the role of opening mechanisms provided by patent law |
| topic | Sharing of innovations; Licensing provisions; Proportionality; Arbitration mechanisms; Injunctive relief KJD LNRD KJMK |
| topic_facet | Sharing of innovations; Licensing provisions; Proportionality; Arbitration mechanisms; Injunctive relief KJD LNRD KJMK |
| url | https://directory.doabooks.org/handle/20.500.12854/162715 |
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