Governing Innovation: The Law, Economics and Political Economy of
Patent Systems
Harvard KSG MIT INET CIGI Workshop, January 16-17, 2015
CIGI Provocation Paper – Patents in Relation to other Policy Domains
Because intellectual property legal frameworks and trading systems are international, regional and
national, it is useful to compare the experience in different jurisdictions to see how innovation is
fostered, legally protected, commercialized and sustained in global competition. Through multidisciplinary case studies of specific intellectual property, innovation and commercialization legal and
governance challenges it should be possible to develop understanding, strategic advice and best
practices that can usefully be applied nationally, regionally and internationally.
While there are a number of studies analyzing the efficacy of global IP regimes and their impact on
innovation, they are usually performed through a particular lens (such as legal, economic, or cultural).
The lack of a multidisciplinary analysis of the efficacy of these regimes renders somewhat sterile the
discussion about how they might be improved. In particular, the operation of the patent system as a
self-contained legal system limits insights into its economic effects, as well as its relationship to
economics-oriented policy domains such as trade, tax, competition, and innovation policy.
The CIGI ILRP has developed a framework for a multidisciplinary and multi-stakeholder research
approach to investigate international, transnational, and domestic intellectual property law within its
practical and experiential context through the use of case studies.
As exemplified in the figure below, in the development of an IP strategy there are the silos of
Business/Finance, Law, and Technology which need to communicate to develop an informed IP strategy.
Specifically, an organization’s IP strategy may be developed by CFOs, CLOs, and CTOs (respectively) and
will ultimately lead to a decision by CEOs.
Technology
IP
(Invention)
Law
IP Administration
Commercialization
IP Right
(Patent)
IP Monetization
Market
(Business)
Financial/
Economic
Figure 1: Dimensions of IP Strategy Development
There are many noteworthy examples of cases that when considered in a multidisciplinary context can
impact on an industry sector, and national and international policy decisions. One such example is the
case of NTP v. RIM which raises interesting issues originating from each of the legal, economic, and
international policy dimensions but having an impact across all three dimensions. Specifically in NTP:
From the legal perspective there were:
-
traditional patent issues of infringement and validity; and
issues arising from the ability of non-practising entities to get injunctive relief (as opposed to
purely monetary) for patent infringement.
From an international political and policy perspective there were:
-
issues related to the extra-territorial application of US patents;
potential disadvantages faced by companies when sued in a foreign jurisdiction (where there
may be an inherent bias towards the local plaintiff on the part of the jury); and
the impact of government involvement (in NTP both the US and Canadian governments were
interveners).
From a business and economic perspective there were issues related to:
-
how royalties for infringement were calculated;
the impact of an injunction in a market which is the principal market for a company; and
the implementation of a workaround and the impact it would have on relationships with
partners and customers and in turn the viability of ongoing business relationships.
Overriding questions: Having regard to these kinds of examples, would a multidisciplinary strategic
approach driven by practical considerations be more effective at advancing the legal framework from an
international, transnational, and national intellectual property perspective so that innovators can fare
better in the global market place? And if so what approach is optimal?
Questions: What are the primary areas or cases to study? Which of these would be most effective to
achieve the purpose?
Questions: What are the skills sets of the ideal participants on a multidisciplinary team? What would
incentivise them to participate?