What's New in Innovation
"Incremental processes that involve many independent persons, who can play at the same time, and in the same project, both roles of innovators and consumers thereby self-selecting the features of their own innovation by sharing interests, experiences and skills" might not be a textbook definition of innovation, but well describes the emerging world of Open Patenting (OP), the topic of From Open Source Software to Open Patenting: What's New in the Realm of Openness?, a working paper by Mariateresa Maggiolino and Maria Lillà Montagnani (both Department of Law).
Even if "still a kaleidoscopic phenomenon whose boundaries are unsettled", OP is spreading as a reaction to the enlargement of the intellectual property (IP) domain. In the last years "protection has been granted to new subject matters", the two scholars write, "such as business methods, traditional knowledge, computer programmes, gene sequences, bio and nano technologies; and new rights have been introduced, such as the sui generis right for databases, plant varieties, and integrated circuits". In the meantime, IP laws expanded intellectual property rights (IPRs) duration.
A first, but already established, answer to the propertization wave is the Open Source (OS) movement, leading to the Open Source Software (OSS), which uses the Internet to promote aggregation and sharing of contents in order to allow people to take advantage from knowledge and to modify it. OSS, Maggiolino and Montagnani clarify, is a different regime for licensing copyrighted software: the programmes are not in the public domain; they are copyrighted to prevent third parties doing it in place of their first developers and special agreements require the further developers to comply with rules that guarantee the survival of the OSS phenomenon. OSS proved to be a profitable venture for private enterprises with giants like IBM gaining from distributing the software and selling related services.
The two scholars underline that, after an initial skepticism, "current case law tends to affirm the enforceability of OSS licenses" even if on different bases. A 2004 German sentence sanctioned misbehaviour as breach of the license, while a 2008 American one considered it a copyright infringement.
A very loose definition of OP would require patented innovations, which patentees decide to license following a scheme different from the traditional "all rights reserved" model. Maggiolino and Montagnani thus analyze three cases of OP: the Open Invention Network (OIN), an online pool of about 100 patents related to Linux "that pivots around a standard license agreement which requires each patentee to grant her software patent combined with a not-challenging clause in exchange for the possibility to use any other of the patents"; the BiOS project, which guarantees open access to some patented and not patented biological materials, research tools and techniques via specific kinds of licensing agreements; the GreenXchange project, which aims to stimulate innovation by offering a public contractual scheme for the licensing of patents comprised in its database, making available for other uses patents that are being held either for defensive purposes or in other fields of use.
OIN and BiOS revolve around three clauses: a not-challenging clause which obliges following developers not to question the validity of the original copyright; a grant-back clause, under which the licensee is required to disclose and transfer all improvements made in the licensed technology; a viral clause which requires following developers to make their improvements available under the same contractual terms that pioneer developers set.
GreenXchange shares with the other two initiatives only the not-challenging clause, suggesting the authors not to force a strict definition of an emerging phenomenon which deserves support, in spite of misplaced criticism. "In sum, OP has two merits at least", the two scholars assert: "it makes innovation cheaper, because it requires lower downstream economic returns in order to recoup the expenses that it entails; and it frees those innovative paths that, nowadays, are not followed".