Jens Schovsbo

Increasing access to patented inventions by post-grant measures

This paper builds on the recommendation in the Scientific and Technological Options Assessment report for the European Parliament to improve the European patent system to ‘increase access to patented inventions’. The paper first provides some background information on the patent system and the limitations on access to protected technology from ‘thickets’ and the so-called ‘tragedy of the anticommons’. It then discusses the use of (some) post-grant measures to increase access to patented inventions. Traditionally, patent law has not paid much attention to such measures. The paper argues that developments suggest that there is good reason to reconsider this reluctance and to include measures in the European patent legislation which seek to increase access to patented inventions. Finally, the paper discusses three such measures: compulsory licences, licences of rights, and behavioural rules. Copyright , Beech Tree Publishing.

The Necessity to Collectivize Copyright - And Dangers Thereof

This article describes and discusses the effects of collective rights administration of (individual) copyright. It points out that collectivization is driven either by en economic argument relating to the reduction of transaction costs or a cultural one relating to the protection of authors. It then claims that collectivization has the potential to affect copyright as it is perceived in the Berne Convention and in traditional copyright legislation fundamentally. The effects include a basic shift in copyright from a system based on property rules to a system based also on liability rules. The article then discusses how to best deal with these effects. It recommends that action is considered to identify and possibly remove internal barriers to beneficial collectivization, regulate societies effectively to secure innovation-interest, and to protect the interests of authors more effectively.

Legal aspects of biobanking as key issues for personalized medicine and translational exploitation

This perspective article provides an overview on selected legal aspects of biobanking. It discusses these issues with a focus on public biobanks in a university setting and the specific challenges posed by personalized medicine. We conclude that any decisions as to the design of the regulatory environment should follow a process that takes account of the values, hopes and concerns of all stakeholders involved. In particular, we stress the importance of a careful planning of consent obligations combining traditional legal methods with an adequate institutional setup. In order to enhance the translational exploitation of biobanks, we further emphasize the pressing need to carefully consider a great variety of strategies and policy choices relating to intellectual property rights.

Property and human genetic information

Do donors (of samples from which genetic information is derived) have some sort of pre-legal (moral) or legal property right to that information? In this paper, we address this question from both a moral philosophical and a legal point of view. We argue that philosophical theories about property do not seem to support a positive answer: We have not mixed our labour with our genes, and the human genome cannot be said to be a fitting object for private ownership based on some idea of self-ownership. An analysis of the term ‘property’ as seen from a legal perspective yields the conclusion that property is, at best, a linguistic prop whose real content has to be defined at least partially conventionally. Relevant interests that may be seen to be protected seem to be interests of privacy or interests against exploitation. To the extent that the logic behind the patent system holds true limiting incentives decreases innovation in society. A balancing of interest must take place, and we have to make sure that patent protection serves general societal interests and not just those of special interest groups be that inventors or donors.

You Told Me, Right? - Free and Informed Consent in European Patent Law

This paper concerns the rule in EU patent law that for patent applications pertaining to human biological material the person from whose body the material is taken must have had the opportunity of ...

Collective Agreements for the Clearance of Copyrights – The Case of Collective Management and Extended Collective Licenses

This contribution analyses and discusses the use of collective management organizations (CMOs) in copyright. More concretely, it examines the use and effects of extended collective licenses (ECL). This model of rights management has been developed in the Nordic countries and has for some time been hailed as a promising tool to solve some of copyright’s problems relating to mass uses of works. It is pointed out how ECL builds on users generated rights managements structures (CMOs) but owes its specific effectiveness to a legislator’s willingness to provide a third-party effect of the collective agreements entered into by representative CMOs. In the final part some of the challenges to ECLs arising from internationalisation and individualisation are identified and discussed. The article is part of a research project on “User Generated Law” and uses the methodologies developed as part of this.

Constitutional Foundations and Constitutionalization of IP Law - A Tale of Different Stories?

This article first describes how a ‘constitutionalization’ of IPR has taken place in the case law of the Court of Justice of the European Union. It then reflects on the impact of this development. It is argued that the full effect of the constitutionlization will manifest itself in the years to come but that the process has the potential to have an impact on the balance between courts and legislator, to affect established modi operandi for the interpretation of rules and principles of IPR (in particular the limitations and exceptions) and to upset the existing relationship to other areas of law (competition law).

The private legal governance of domain names

This article evaluates the performance of the special private tribunals or panels such as the UDRP which have been developed within complicated systems of self- and co-regulation such as ICANN to decide disputes over domain names. It uses two different dispute resolution models viz. the UDRP (WIPO) and the Danish Complaints Board for Internet Domain Names (the Board) to discuss how and to what extent the domain name system balances interests between trademark owners and other users of domain names and secures the rule of law (legal certainty and predictability) with a special focus on cases where trademarks are used as (parts of) domain names to express criticism of the trademark holder or the trademark itself (e.g. “TMsucks” / “lorteTM”). The article is part of a research project on “User Generated Law” and uses the methodologies developed as part of this.

On Law and Policy in a European and European Union Patent Court (EEUPC) - What Will it do to Patent Law and What Will Patent Law do to it?

On 4 December 2009, the European Council unanimously adopted conclusions on an enhanced patent system in Europe, which inter alia intends to establish a new EU patent as well as a new common patent judiciary – the European and European Union Patent Court (EEUPC). The EEUPC will constitute a new sui generis, transnational court system with exclusive jurisdiction in respect of civil litigation related to the infringement and validity of European patents and EU patent. This paper considers this proposal for the establishment of the EEUPC under two basic observations, namely that substantive law requires legal institutions, which support the purposes and policies underlying the substantive law in question, and that legal institutions affect the law. The first observation leads to a discussion of the requirements which a common judiciary in the European patent system should satisfy and different models for the institutional design of such a judiciary. The second observation leads to a discussion of how the EEUPC may affect the European patent system. It is concluded that the need for a common judiciary in the European patent system may be satisfied in different ways and that the EEUPC may not be the optimum solution.