IPR Policies Research Articles

A Comprehensive Review on the Impacts of Intellectual Property Rights on the Global Agricultural Economy

The agricultural sector is no stranger to the importance of intellectual property, as it serves as a catalyst for innovation, facilitates the transfer of technology, and safeguards the rights of creators and inventors. By examining the effects of IPRs on various dimensions, this paper seeks to shed light on the far-reaching implications for the agricultural industry worldwide. First and foremost, the review explores the intricate relationship between IPRs and agricultural research and development. IPRs are known to provide essential incentives for scientists and researchers to engage in ground-breaking agri-scientific endeavors, leading to advancements in productivity, sustainability, and food security. By offering legal protection and rewards for their innovations, IPRs encourage investment in agricultural R&D, driving progress in crop improvement, genetics, and biotechnology. Furthermore, the review delves into the impact of IPRs on farmers' access to seeds and genetic resources. While strong intellectual property regimes ensure fair compensation for breeders and innovators, concerns arise regarding the potentially limited access to seeds, especially for small-scale farmers in developing countries. Balancing the rights of breeders and the needs of farmers becomes a crucial aspect of agricultural policy formulation, aiming for a sustainable and inclusive agricultural system. Additionally, the review scrutinizes how IPRs affect the overall competitiveness of the agricultural market. IPRs enable agricultural enterprises to gain a competitive advantage through exclusive rights over their unique plant varieties, processes, or technologies. However, the high costs associated with intellectual property protection may pose barriers for smaller farmers and agricultural communities, exacerbating inequalities within the sector. While intellectual property rights undoubtedly play a vital role in fostering agricultural innovation and protection, the review also sheds light on the challenges and controversies associated with IPRs. The potential negative impacts on small-scale farmers, the concerns surrounding access to genetic resources, and the implications for biodiversity conservation all warrant careful consideration in the formulation of IPR policies. Through a comprehensive analysis of scholarly articles, reports, and case studies, this review provides valuable insights for policymakers, stakeholders, and researchers concerned with the multifaceted impacts of intellectual property rights on the global agricultural economy. By understanding these complexities, it becomes possible to strike a balance that maximizes the benefits of IPRs while ensuring equitable and sustainable agricultural development.

Standard-Setting, IPR Policies and the Incentives to Innovate: Evidence from the IEEE Patent Policy Update

Standard-Setting, IPR Policies and the Incentives to Innovate: Evidence from the IEEE Patent Policy Update

Licensing of standard essential patents in a developing economy: an Indian perspective

The ripple effect created by standardization has transcended beyond the developed world and engulfed developing economies. While a major chunk of the discussion involving standards-setting and the licensing of standard essential patents (SEPs) has centred around the United States (US) and the European Union (EU), with the rapid emergence of Chinese patent holders and a steady increase in SEP-related jurisprudence in India, the innovation landscape has witnessed a significant change in the past five years. Amidst such market realities, it is neither possible nor logical to extend the regulatory framework devised in the US and EU to the rest of the world. In the Indian context, jurisprudence on FRAND disputes is still at a nascent stage, despite there being a long-standing history of standards development in the country. With the global roll-out of 5G beckoning to transform human lives in a never-before-seen manner, having a comprehensive set of guidelines for the licensing of SEPs is the need of the hour. The most crucial role in that regard is likely to be played by the IPR policies of standard setting organizations (SSOs), which have quite often proved to be the decisive factor in facilitating the interaction between innovators and implementers, vis-à-vis licensing of SEPs. Against this background, the present article focuses on the state of standardization in India and the possible role SSOs might play in stimulating an innovation culture in the country. * Dr Manveen Singh can be reached on msingh@jgu.edu.in

Intellectual property rights, non-market considerations and foreign R&D investments

Prior research has focused on how firms use a variety of organizational mechanisms to protect their R&D investments from misappropriation risks in foreign countries. Little is known, however, about how firms can rely on non-market factors to induce preferential treatment by host government authorities, thereby protecting their intellectual property overseas. In this paper, we investigate two such non-market factors, one at the country level, the other at the firm level, that are likely to influence the choice of where firms locate their innovation activities: host country inclination towards the firm's home country and the firm's political capabilities, respectively. We thus examine how IPR policies and non-market factors interact in protecting firm innovation from misappropriation and in making countries more attractive for innovation-related activities. We find support for our predictions in a sample of 1,341 foreign R&D investments made by 163 firms from 14 home countries over the period 2003–2016.

Open Source Software and Standards Development: Competition Law Implications

Technical standards developed by standards development organizations (“SDOs”) increasingly involve software-based solutions that implicate open source software (“OSS”). SDOs generally operate pursuant to policies and procedures based on principles of consensus, due process, balance, and openness, and subject to consensus-defined intellectual property rights (“IPR”) policies that contemplate inclusion of patented solutions in standards. Consequently, SDO policies help incentivise IPR owners to contribute their new and innovative technologies to standards by providing owners of Standard Essential Patents (“SEPs”) the opportunity to offer licenses for their IPR on fair, reasonable and non-discriminatory (“FRAND”) terms. Open source projects are often pursued in consortia or similar forums, which typically do not fully observe such procedural principles, and do not contemplate FRAND patent licensing, or patent licensing at all. However, traditional SDO standards activities and open source projects are not mutually exclusive, and both can drive innovation and competitiveness. As noted by the European Commission’s 2017 communication on the EU’s approach to SEPs, integration between open source projects and standards development processes may be “a win-win situation,” and “[f]lexible and effective interactions between standardisation and open source communities will promote and accelerate the uptake of advanced technology developments.” This paper considers the competition law implications of integrating standards development and open source efforts, to help facilitate that potential “win-win” outcome, and achieve the procompetitive goals of standards development, rather than create risks of competitive harm that will deter innovation. This paper submits that consensus-based approaches to standards development, where account is taken of all stakeholder interests, and which abide by principles of openness, balance and due process, should apply equally when SDOs accommodate open source projects. Experience shows that such procedural safeguards are fundamental to avoid potential anticompetitive effects resulting from imposiing IPR policies that favour discrete stakeholder interests. This paper further explains that EU and US competition law provide the necessary tools to challenge conduct related to standardization and open source licensing that may diminish competition and innovation.

Brief of Amicus Curiae Professor Jorge L. Contreras In Support Of Appellee and Affirmance in FTC v. Qualcomm

Qualcomm participated in the development of 3G and 4G wireless telecommunication standards under the auspices of two SDOs, the Telecommunications Industry Association (“TIA”) and the Alliance for Telecommunications Industry Solutions (“ATIS”). Each of these SDOs had adopted intellectual property rights policies (IPR Policies) that required their participants to grant licenses of SEPs to implementers of their standards on FRAND terms. Yet, over the course of several years, Qualcomm refused to license its SEPs to numerous actual and potential modem chip rivals including MediaTek, Project Dragonfly (a joint venture of NTT DoCoMo, Samsung and several Japanese manufacturers), Samsung, VIA Telecom, Intel, HiSilicon (a subsidiary of Huawei), Broadcom, Texas Instruments, and LGE. The district court also found that when Qualcomm did license its SEPs to smartphone vendors, its royalty rates were “unreasonably high.” Accordingly, the district court found that Qualcomm violated its FRAND commitments to ATIS and TIA, as well as Sections 1 and 2 of the Sherman Act, and Section 5 of the FTC Act. As a remedy, the district court entered an injunction that, inter alia, required Qualcomm to license its SEPs on FRAND terms to rival chip makers, and to renegotiate its existing SEP licenses to reflect reasonable royalty rates. Qualcomm now appeals. This brief seeks to draw to the Court’s attention historical, practical and policy matters pertaining to technical standardization that bear on the arguments made on appeal by Qualcomm and its federal agency amici curiae. In particular, this brief argues that: (1) the district court was correct to conclude that Qualcomm is required to license its SEPs to all applicants on FRAND terms, (2) the “reasonable” royalty level required by Qualcomm’s commitments to the relevant SDOs should not be measured by Qualcomm’s own royalties charged to others, and (3) enforcement of the district court’s injunction against Qualcomm will not threaten U.S. national security, and the arguments made to that effect mischaracterize or misunderstand the nature of both patent law and standards. Qualcomm has undeniably played a significant role in the development of wireless telecommunications technology. However, the antitrust laws must be enforced rigorously and even-handedly to eliminate anticompetitive conduct. An enterprise that has engaged in anticompetitive conduct should not be excused simply because it contributes to the national economy or to national infrastructure or defense. Giving Qualcomm special treatment in this case would open the door to such arguments in practically every antitrust case involving major industrial or technology players. And, as such, the force of the antitrust laws would be severely weakened to the detriment of American competition and consumers. Accordingly, this brief urges the Court to affirm the decision and order of the district court.

Evolving Technologies and Intellectual Property Landscapes: Developing IPR Policies to Avoid Confusion and Chaos Within Development Communities

This article describes the evolution of standards organizations and the current standards ecosystem. Existing IPR policy frameworks are also described for interoperability specifications and related materials. New IPR policy frameworks to support recent trends are then explored.

Standardization, Open Source, and Innovation: Sketching the Effect of IPR Policies

Open Source and standardization can be described as two ‘stewards of innovation’ (Kapos 2017). Although practically two different ecosystems with a diverging set of rules and objectives, they, however, meet in their purpose to push the frontier of innovation. The latest technological developments are increasingly incentivizing firms and individuals participating in these ecosystems to work more closely together. However, under whose rules? And with what consequences for the innovation ecosystem? In this contribution, I try to sketch answers to these and related questions with the focus on IPR policies of two ecosystems. Based on the outlined trade-offs, a number of specific points are offered. First of all, patent and copyright royalties may discourage use of standards within Open Source projects. For patent royalties, these effects can be also addressed outside of the standardization process by means of defensive and licensing patent pools or aggregated individual commitments. It depends on the cost and benefits of a particular project whether such solutions should be in-built ex-ante or created externally ex-post. Second, Open Source licenses with royalty-free patent grants might accelerate diffusion of specifications, especially if done within the reference implementations of SDOs, and encourage a new set of innovators to join the process. At the same time, it might discourage a set of pure R&D firms which heavily rely on royalties to recoup the investment. SDOs steering the process might want to consider the likely pool of innovators on both sides when launching a project. Third, given that we observe that both royalty-free and royalty-bearing layers are able to sustain innovation investments in the ICT, none of two approaches seems inherently superior. However, the choice can influence the make-up of innovators and technological trajectories. From this perspective, they both have their place in the innovation ecosystem. SDOs should, therefore, promote a choice between them on a project basis.

Over-Declaration of Standard Essential Patents and Determinants of Essentiality

Not all Standard Essential Patents (SEPs) are actually essential – a phenomenon called over-declaration. IPR policies of standard-setting organizations require patent holders to declare any patents as SEPs that might be essential, without further SSO review or detailed compulsory declaration information. We analyze actual essentiality of 4G cellular standard SEPs. A declaration against a specific technical specification document of the standard is a strong predictor of essentiality. We also find that citations from and to SEPs declared to the same standard predict essentiality. Our results provide policy guidance and call for recognition of over-declaration in the economics literature.

Building Technology Transfer Capacity in Turkish Universities: a critical analysis

University technology transfer has been receiving significant government funding since 2012. Results of this major investment are now expected by the Turkish government and society, not only in terms of better teaching and research performance, but also of new jobs, new products and services, enhanced regional development and contribution to economic growth. This article examines the technology transfer capacity of Turkish universities and provides several policy recommendations for further improvement. The analysis uses the dataset of a recent project funded by the European Patent Office and managed by Ege University Science and Technology Centre (EU.EBILTEM‐TTO) and the Turkish Patent Institute. This was the first large‐scale national assessment of IPR activities in Turkish universities. The findings reveal an early‐stage university technology transfer capacity, facing many challenges caused by low technology‐ and market‐oriented research capacity, institutional obstacles to patenting, licensing and spin‐offs, low IPR awareness and spread of IPR policies, and the current IPR regime. University‐industry cooperation activities, such as contract research, joint projects and publications, consultancy, etc. that have been present for three decades in Turkey continue to be the major paradigm and tend to be considered as a separate strand from technology transfer activities, such as patenting, licensing and spin‐off formation that are less developed. Systemic policy intervention expanded to the broader national innovation ecosystem to improve technology absorption capacity and interest in technology‐driven innovation, together with a combined top‐down/bottom‐up transformative action that can accelerate the change of deeply‐rooted old perceptions and practice.

Valuing Standard Essential Patents in the Knowledge Economy

This paper comparatively examined the valuation methodologies put forward and accepted in four recent FRAND cases adjudicated in the US in 2013-14 and found a link to the business models (i.e. value logics) employed by the actors and the type of standards involved. This indicates that the value of standard essential patents (SEPs) may be dependent on the market structure under which standards are developed. Additionally, valuation models based on prior license agreements seem to currently produce higher valuations of SEPs, everything else equal. However, a lack of agreement by the different courts regarding similar valuation methods indicates the value of SEPs still lacks consensus on both legal and economic grounds, especially in relation to new knowledge-based business models and norms. This suggests that policy makers (both within SSOs and government) should take pause in further defining IPR policies and adopting new patent regulations without a deeper understanding of the potential impact to both dynamic and static economic efficiency in respect to an emerging new division of innovation labor and knowledge-based business models. This is particularly relevant as the studied cases confirm that lack of empirical evidence that perceived problems such as patent holdup and royalty stacking are more than a merely contractual/transactional phenomenon that can't well be addressed on a case-by-case basis by the courts.

The Words of Power behind Shared IP: The Case of Automotive Electronics

This explorative case study research induces a framework of words of power in collaborative R&D and standard setting. While previous, often rather quantitative studies have focused on IPR policies and appropriation, we identify power from the various consortia policy documents and particularly membership agreements. Likewise, our observation of power reaches beyond knowledge appropriation and legal terms. Data is retrieved from in-depth interviews with senior automotive decision makers and a related novel layered social network analysis. Results reveal a practice of sharing rather than only disclosing IP. We find written generic words of ownership, control, design and integration. Additionally, the words create shared meanings and direct communication. The words may be applicable across various collaborative settings of firms, ecosystems and industries. Therefore, this paper delivers a terminology for further comparative studies on the words of power, the power of words and an initial empirical point in case of investigating their hermeneutics.

A Study of IPR Policies and Practices of a Representative Group of Standards Setting Organizations Worldwide

This study contains a detailed, comparative analysis of the IPR policies of twelve standard setting organizations: ISO, IEC, ITU, IEEE, ETSI, ANSI, IETF, OASIS, VITA, W3C, HDMI Forum and NFC Forum. It considers the policy objectives, the way essential IPR are defined, and the procedures for disclosure and for licensing commitments, and finishes with a number of observations and conclusions. The study was commissioned by the US National Academies of Science (NAS), Project on Intellectual Property Management in Standard-setting Processes.

Settling FRAND Disputes: Is Mandatory Arbitration a Reasonable and Non-Discriminatory Alternative?

This paper reviews the recent proposal that SSOs amend their IPR policies to require SEP owners and willing licensees to resolve disputes over licensing terms, particularly FRAND royalty rates, using mandatory, binding baseball-style (or “final offer”) arbitration. We first consider the fundamental underlying premise of the arbitration proposal - namely, that there are systemic problems relating to FRAND-based standardization and that current disputes are not being efficiently addressed. We find that mandatory baseball arbitration is a solution in search of a problem, will not necessarily afford “better” outcomes, and is more likely to lead to decisions that undermine the standardization process.

Erawatch Country Reports 2011: Hungary

This report identifies five main science, technology and innovation (STI) policy challenges in Hungary. The first two ones can be understood as symptoms, which are important enough to consider them on their own; the third is an ‘early warning’ signal; while the last two are not only important symptoms, but also major reasons to be considered when explaining poor innovation performance. - Low level of innovation activities, especially that of the SMEs; - Low occurrence of co-operation in innovation activities among key actors; - Insufficient quantity of human resources for RD - Unfavorable framework conditions for innovation, especially unpredictable business environment, high administrative and tax burden, competition not conducive to innovation; - Shortcomings in STI policy: lack of political commitment; instability; shortfalls in implementation; and slow, insufficiently informed policy learning processes. Two main reasons of the poor innovation performance have also been identified. One of these points outside the narrowly defined STI policy domain: the framework conditions for innovations influence firms’ behaviour with such a power that STI policy schemes cannot offer strong enough incentives to overrule those unfavourable effects. Thus, major policy efforts are needed to create favourable framework conditions, notably a stable macroeconomic environment; endurable administrative and tax burdens on firms; strong demand for new products; a sufficient supply of skilled people for RTDI projects; appropriate regulations and standards; effective IPR policies; etc. Further, policies affecting these conditions need to be aligned with STI policy efforts to make a difference. The second set of factors can be grouped together as shortcomings in policy-making, including lack of political commitment. RD evaluation of individual policy measures, as well as that of the policy mix as a whole; and technology assessment – should be relied upon when devising and implementing STI policy measures, also assisted by recurring consultations with the major actors of the national innovation system.

'Umbrella' Standards Bodies: Framing Their IPR Policies

The recent launch of a number of umbrella standards groups provides an opportunity to consider how they address intellectual property rights associated with their activities. Umbrella standards groups bring together standards development organisations (SDOs) and others to address standards challenges that cut across the work of established SDOs and territories. This paper considers three umbrella groups. One characteristic of umbrella standards groups is that they generally disclaim any development of standards. Rather they review and comment on the standards developed by participating SDOs; they identify and often resolve conflicts between standards; they propose gap fillers where a technical issue is not addressed. Because of their composite nature, umbrella standards group present unique issues relating to the IPR policy applicable to their activities. This paper examines the twin IPR challenges for the umbrella standards group: First, it disclaims any work to develop its own standards, but it could well have other deliverables whose mandatory nature could have standards-like qualities. What IPR policy should it have to cover these deliverables? Second, the contributions to its work come from a number of independent SDOs each with its own IPR policy. What kind of recognition should the umbrella group give to these policies? This paper examines in turn the IPR policies adopted by FOBTV, oneM2M and SGIP. It deals with SGIP’s work at some length and concludes that its approach in addressing these challenges – fostering disclosure of the IPR policies of authoring SDOs, and working out a well-considered IPR policy for its own deliverables – could serve as a model for other umbrella standards bodies.

Imitation and innovation driven development under imperfect intellectual property rights

Developing countries employ about two-fifth of the world's researchers, originate one quarter of world expenditures on R&D, and their inventions are subject to imitation. Nevertheless, the previous literature focuses on North–South setups in which the South is restricted to imitating northern inventions. To analyze the effects of IPR policies on developed and developing countries, we extend this literature to allow not only for southern innovation and imitation of northern goods, but also for imitation targeted at southern innovations. We find the effects of IPRs on R&D and welfare to be non-monotonic and dependent on innovation efficiency and an innovation threshold in the South. For sufficiently strong IPRs the South engages in original R&D and stronger IPRs promote southern innovation, welfare, and a reduction in the North–South wage gap. Below the threshold, a strengthening of IPR protection fails to promote innovation and decreases welfare. Stronger IPRs exclusively for southern firms can benefit both regions by shifting southern resources from the imitation of northern goods to original southern innovation.

Would Global Patent Protection Be Too Weak Without International Coordination?

This paper analyzes the setting of national patent policies in the global economy. In the standard model with free trade and social-welfare-maximizing governments a la Grossman and Lai (2004), cross-border positive policy externalities induce individual countries to select patent strengths that are weaker than is optimal from a global perspective. The paper introduces three new features to the analysis: trade barriers, firm heterogeneity in terms of productivity and political economy considerations in setting patent policies. The first two features (trade barriers interacting with firm heterogeneity) tend to reduce the size of cross-border externalities in patent protection and therefore make national IPR policies closer to the global optimum. With firm lobbying creating profit-bias of the government, it is even possible that the equilibrium strength of global patent protection is greater than the globally efficient level. Thus, the question of under-protection or not is an empirical one. Based on calibration exercises, we find that there would be global under-protection of patent rights when there is no international policy coordination. Furthermore, requiring all countries to harmonize their patent standards with the equilibrium standard of the most innovative country (the US) does not lead to global over-protection of patent rights.

Reverse Hold-Ups: The (Often Ignored) Risks Faced by Innovators in Standardized Areas

There is an abundant economic and legal literature on the interface between intellectual property and standardization. Following the footsteps of Mark Lemley and Carl Shapiro, the bulk of this literature (the “hold-up literature”) focuses on the risks of patent “hold-up” faced by firms implementing standards involving intellectual property rights (“IPRs”) by manufacturing standard-compliant products. This “hold-up” conjecture is usually described as follows. Once a standard has been adopted and manufacturers or users of standard-compliant equipment have incurred significant technology-specific sunk costs, switching to an alternative technology becomes too onerous. The industry in question will have become “locked-in” to the standard. The bargaining power of the owner of essential IPR will have thus increased as a result of standardisation and he will be able to extract more favourable licensing terms after standardisation than would otherwise have been the case. The patent hold-up conjecture is thus a claim that, due to the market power gained through standardization, essential patent holders are able to negotiate royalties in excess of their true economic contribution and are thus over-rewarded. Others, including the author of this paper, have, however, argued that the alleged risks of patent hold-up have been grossly exaggerated in this literature by ignoring the significant constraints faced by essential patent holders and the very limited set of circumstances in which hold-up can occur. Another problem with the hold-up literature is that, while it exaggerates the risks incurred by standard implementers, it entirely ignores the risks faced by innovators active in standardized fields. As will be shown in this paper, holding patents on valuable technologies does not by any means guarantee the innovator that it will be able to recoup its sunk R&D investments as it faces significant, and increasingly growing, risks. First, innovators have no guarantee that, however valuable, their technology will be selected to be part of the relevant standard(s). Technology selection is competitive and will be increasingly so now that “costs” considerations are taken into consideration. Second, even if their technology is selected, innovators have to negotiate with standard implementers, which as will be seen below are seeking through various means, including the exercise of monopsony power, to reduce the royalty payments they make to innovators. Third, standard implementers and their supporters are pushing for reforms that would weaken the bargaining power of essential patent holders, notably by depriving them of the ability to seek injunctive relief or by reinterpreting the definition of the commitment they give to SSOs to grant licenses on “fair, reasonable and non-discriminatory” (FRAND) terms in a manner that is unfavourable to them. Finally, as illustrated by recent competition law cases, innovators also face growing regulatory risks as implementers may seek to use competition rules to force royalties and other licensing terms down on the ground they would be contrary to FRAND, exploitative under the terms of Article 102 of the Treaty on the Functioning of the European Union (TFEU), etc.By exploring these risks, which may – as will be argued – may create “reverse patent hold-ups” (in that essential patent holders instead of being over-compensated will in fact be under-compensated by being forced to accept royalties that are lower than the value of the contribution of their technologies to a standard), this paper seeks to fill an important gap in the current standard-setting literature and give a more accurate perspective on the challenges facing innovators in standardized fields. This paper comprises V parts. Part II provides some background on SSOs involving technologies protected by IPRs and the IPR policies they traditionally adopt. Part III describes the patent hold-up conjecture as developed by its supporters and shows that the risks it creates for standard implementers and users of standardized products are grossly exaggerated. Part IV shows that, in contrast to the claims made by patent holdup theorists, innovators active in standardized fields face significant risks of being under-compensated and thus could become the victims of reverse hold-ups. Part V offers a conclusion in which it is explained that the efforts made by standard implementers to constrain the abilities of essential patent holders to generate revenues will harm innovation and prevent efficient specialization by particularly affecting firms that have a licensing business model.

Competing Engines of Growth: Innovation and Standardization

We study a dynamic general equilibrium model where innovation takes the form of the introduction new goods, whose production requires skilled workers. Innovation is followed by a costly process of standardization, whereby these new goods are adapted to be produced using unskilled labor. Our framework highlights a number of novel results. First, standardization is both an engine of growth and a potential barrier to it. As a result, growth in an inverse U-shaped function of the standardization rate (and of competition). Second, we characterize the growth and welfare maximizing speed of standardization. We show how optimal IPR policies affecting the cost of standardization vary with the skill-endowment, the elasticity of substitution between goods and other parameters. Third, we show that the interplay between innovation and standardization may lead to multiple equilibria. Finally, we study the implications of our model for the skill-premium and we illustrate novel reasons for linking North-South trade to intellectual property rights protection.