Research News – Max Planck Institute for Innovation and Competition

[Bitte nach "english" übersetzen:] The publication „The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses” by Christophe Geiger und Luc Desaunettes-Barbero shows that the "plain packaging" decisions do not only concern trademark law, but also give more flexibility to the TRIPS Agreement

Study | 07/27/2020

More Flexibility for the TRIPS Agreement

Public health can constitute a legitimate reason to encumber trademark use: This was recently confirmed by the WTO Appellate Body. A current publication concludes that the decision provides more flexibility to WTO members for adapting intellectual property rights to new realities.

Plain packaging for cigarettes does not violate international trade rules: With its confirmation of the original decision of the WTO Panel of 2018 the Appellate Body of the World Trade Organization in June aroused worldwide media interest and ended a legal dispute that had lasted almost a decade.

The backdrop: In 2012 Australia became the first country in the world to introduce uniform sludge-green packaging for cigarettes, with drastic pictures warning of the consequences of smoking. Regarding brands, it decreeds that all logos or trademarks were to be removed from tobacco packages and the brand name should be printed only in small standardised fonts. This prompted the four tobacco-producing countries Indonesia, Honduras, the Dominican Republic and Cuba to file a complaint via the WTO dispute settlement system. They argued the measures constitute a violation of the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights). After their complaint was dismissed in 2018 by the Panel, Honduras and the Dominican Republic raised an appeal, which was rejected in June.

Impact goes beyond trademark law

The decisions are likely not only to accelerate the implementation of “plain packaging” worldwide, but also to have impact far beyond the tobacco industry. The current publication “The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses” by Christophe Geiger and Luc Desaunettes-Barbero shows that the impact of the decisions goes beyond trademark law and even opens up new room for interpretation of the whole TRIPS Agreement.

The study focuses on the new application of the so-called flexibility clauses in the "plain packaging" decisions. These clauses entailed in its Articles 7 and 8 describe the objectives and principles of the TRIPS Agreement. While they have so far played only a residual role in the interpretation of the provisions of the Agreement in practice, the WTO dispute settlement bodies for the first time fully engaged with them in the “plain packaging” decisions. As a result, they conclude that public health may constitute a legitimate reason for limiting trademark use.

The authors show that the new reading of Articles 7 and 8 offer the possibility for a more flexible interpretation of the TRIPS Agreement. This applies in particular to the limitations and exceptions. By refraining from using Articles 7 and 8 in the past, the WTO established a rigid interpretation of these exceptions: The focus was on a strong protection of intellectual property rights without taking into account that such an interpretation could lead to dysfunctional effects in individual cases. The “plain packaging” decisions offer the WTO members more flexibility to adapt intellectual property rights to new realities and the possibility to take into consideration conflicting human rights.

The publication can be found here.

Study | 04/30/2020

Digitalization by Corona? New bidt Study on Remote Work in Germany

Dietmar Harhoff, director at the Max Planck Institute for Innovation and Competition and member of the board of directors of the Bavarian Research Institute for Digital Transformation (bidt), is co-author of the study on the spread and acceptance of remote work in Germany. He stresses that companies should not return to old organizational patterns after the crisis.

The Bavarian Research Institute for Digital Transformation (bidt) has examined important questions concerning the spread and acceptance of work from home. To this end, bidt conducted a representative short survey among 1,595 employed adult Internet users in Germany. The analysis shows:

The use of remote work has increased during the crisis.
The satisfaction with the current situation of remote working is high.
Before the Corona crisis, some employers did not allow remote work.
Employers were generally well prepared.
The acceptance of remote work has increased.
The desire for more working from home is strong.

Dietmar Harhoff explains that there is a high level of acceptance among employees for remote work. The economy must take up this willingness, he says. Germany is lagging behind in the EU comparison when it comes to remote working. Home-based work is not only a question of organizational culture. It also leads to new management concepts and strengthens digitalization and innovative ability.

To the detailed bidt study (in German).

Here you can also listen to the podcast “Job Cuts and Remote Work: How Corona Is Changing the World of Work” (in German) in the NDR Info Speaking Time (30 April 2020) with contributions from Dietmar Harhoff.

Study | 12/11/2019

Science Quality and the Value of Inventions – New Study in Science Advances

The new study “Science Quality and the Value of Inventions” by researchers of the Institute has now been published in the journal Science Advances. The study shows a strong positive correlation between the scientific quality of research contributions and the economic value of patents based on these contributions.

Science governance and funding seek to promote excellent science output by allocating resources to those projects, researchers and institutions from which outstanding results are expected. But the commonly used measures for scientific quality, such as the number of citations, do not take into account the potential of scientific results for technology transfer and commercialization.

The findings of the new study “Science Quality and the Value of Inventions” by Poege et al. imply that what is considered excellent within the science sector also leads to outstanding outcomes in the technological and commercial realm. Excellent scientific articles are referenced in substantially more patent documents than articles with lower scientific quality. Patents with references to often-cited scientific contributions are of much higher commercial value than patents referring to less-cited publications.

The analysis comprises references to scientific contributions from 4.8 million patent families of the European Patent Office and the U.S. Patent and Trademark Office and approximately 43 million scientific publications in the Web of Science from the year 1980 onwards.

Previously known was the fact that patents with references to scientific publications are substantially more valuable than patents without a direct science link. The new study contributes the insight that the quality of the scientific bases is of crucial importance. Patents with references to excellent scientific publications are particularly valuable, while this does not apply to patents with references to low quality scientific publications.

The results indicate that quality measures commonly used in science can serve as good criteria for a system of science funding which simultaneously provides a basis for societal benefit and technological progress.

Science Advances is a peer-reviewed multidisciplinary open access journal published by the American Association for the Advancement of Science and complements the journal Science, referred to as Science Magazine, which has been published since 1880.

To the publication in Science Advances

The authors: Felix Poege Dietmar Harhoff Fabian Gaessler Stefano H. Baruffaldi

Suggested citation:

Poege, Felix; Harhoff, Dietmar; Gaessler, Fabian; Baruffaldi, Stefano (2019). Science Quality and the Value of Inventions, Science Advances, 5 (12), eaay7323 (11 December 2019). DOI: 10.1126/sciadv.aay7323

Study | 04/10/2019

More than Wine, Cheese and Asparagus

Geographical Indications (GI) protect local goods and traditional production processes against imitation and misuse. A new research project around Andrea Zappalaglio and Suelen Carls will examine the legal system of GI in an overall assessment.

“Schrobenhausener Spargel”, “Asparago verde di Altedo” or “Brabantse Wal asperges” are not only names of different types of European asparagus. Their producers succeeded to be granted the protection of a geographic indication (GI). More than 1.440 names of agricultural products are registered in the EU-Database DOOR, not to mention the many wines, spirits and fortified wines that appear in other specific registers.

Andrea Zappalaglio and Suelen Carls, Senior Research Fellows at the Institute know about the economic and legal importance of the sui generis protection of origin. “A GI is first of all a label that protects a geographical name. However, the GI system as a whole constitutes a complex “quality scheme”, related to a number of relevant policies of the EU, especially, although not exclusively, the Agricultural one”, Suelen Carls explains. “There is a value in the origin link that could be used to achieve goals unrelated to the mere market function of the label, such as fostering rural development. However, whether this really works effectively is controversial”, Andrea Zappalaglio, the project coordinator, says.

As part of the EU’s system of intellectual property rights, GIs provide legal protection against imitation and misuse within the EU and in non-EU countries where a specific protection agreement exists. Non-European producers can also be granted with a GI in the EU. Products with GI-labels create a considerable market value by providing the producers a competitive advantage and creating expectations in the consumers as to the characteristics, qualities and reputation linked to the geographical origin and traditional know-how of the goods. India already makes use of GIs, especially for the protection of handcrafts, and, more recently, also China began employing a sui generis system of protection.

An overall assessment

The researchers’ team will conduct an overall assessment of the EU GI system for the protection of agricultural products and foodstuffs. “Using the structure of Regulation 1151/2012 as a trail, we aim to focus both on the substantive nature and on the procedural complexities of this right, from an empirical and comparative perspective”, explains Andrea Zappalaglio.

The researchers will also focus on the future of GIs in Europe. For instance, it will explore and assess the issue of the extension of GIs to handcrafts.

Data Access and Control in the Era of Connected Devices (Cover)

Study | 03/20/2019

New Study: Data Access and Control in the Era of Connected Devices

The one thing all smart devices need – whether in industry, agriculture, or the common household – is data. In his new study, Josef Drexl proposes guidelines for the the future EU legal framework for the digital economy.

On behalf of the European Consumer Organization BEUC, Josef Drexl has authored a study on data access and control in the era of connected (smart) devices.

The study comprehensively analyses the interface of existing and evolving intellectual property legislation (with a focus on sui generis database rights), trade secrets protection, and data and consumer protection rules for discussing the future legal regime for data generated and processed in an Internet-of-Things environment.

In line with earlier Position Statements of the Institute, the study rejects legislation on data ownership rights. Furthermore, it explores the possibilities and core requirements for a general data access regime on the EU level, which would complement competition rules and could be spelt out more concretely in the framework of sector-specific data access regimes.

See Study: Data Access and Control in the Era of Connected Devices

Study | 05/28/2018

Study on Supplementary Protection Certificates

A team of researchers around Roberto Romandini examined the legal framework of supplementary protection certificates (SPCs) on behalf of the European Commission. The Institute elaborated reform proposals which aim at more transparency and legal certainty.

The study examines the functioning of the system of SPCs established in the EU by Regulation 1768/92/EEC on SPCs for medicinal products (now: Reg. 469/2009/EC) and Regulation 1610/96/EC on SPCs for plant protection products. The functioning of these Regulations is considered in the context of adjacent legislation concerning marketing authorisation for medicinal products and plant protection products (Directives 82/2001/EC and 83/2001/EC; Regulation 1107/2009/EC).

Within this context, the study focuses inter alia on:

the impact of the CJEU case law on the SPC system and the practice of the national patent offices;
the challenges posed by technical developments for the SPC legislation;
the impact of the Agreement on a Unified Patent Court on the scope of the Bolar exemption;
the models for creating an SPC manufacturing waiver;
the interaction between SPCs and the unitary patent package;
the options for creating a unitary SPC.

Based on legal analysis, supplemented by a fact-finding process, the study identifies critical issues, explores possible solutions and formulates some recommendations.

The Study on the Legal Aspects of Supplementary Protection Certificates was published on 28 May 2018.

Study and Annexes: https://ec.europa.eu/docsroom/documents/29524
Executive Summary: PDF

Study | 04/25/2016

Copyright and Innovation in Digital Markets

Study by order of the Federal Ministry of Justice and Consumer Protection

The Ministry had commissioned the Max Plank Institute for Innovation and Competition to prepare the study in order to provide a better empirical basis for legal-political discussions of copyright law in the digital age.

Digitalization is a key driver for innovations and the emergence of new business models. Internet-based value-creation processes are increasingly changing the basic conditions for creativity while at the same time opening up new ways to disseminate and use many different types of content. Accordingly, copyright as a legal instrument to promote innovation and creativity is also confronted with new challenges. Its role in this context must be determined not only from a legal, but also from an economic perspective. Basic groundwork for this task includes charting and analyzing those technological and economic changes that digitalization and interconnectedness entail. Trends regarding technological developments and value-creation models are particularly visible in the kinds of young enterprises that are currently introducing innovative, internet-based business models. If there is a connection between their business models and copyright law, this connection can make it possible to draw conclusions as to which basic legal conditions might influence innovation in digital markets in a positive or a negative way.

For the study, 40 startups with internet-based business models were surveyed, whereby “startup” was defined as an enterprise under ten years old implementing an innovative business model or innovative technology and striving for significant growth. The goal of the interviews with the startups was to determine which parameters of copyright law the entrepreneurs saw as containing a potential for conflict with their own business model. Thus the first step was to determine what role copyright-protected content played in the creation of value and who the authors of this content were. Next, it was ascertained what copyright-related questions, insecurities or risks arose for the startups with regard to this content. Finally, the entrepreneurs were asked how they responded to these challenges in their day-to-day business.

The study was commissioned by the German Federal Ministry of Justice and Consumer Protection and carried out jointly by the Max Planck Institute for Innovation and Competition and the Center for Digital Technology and Management (CDTM). A multidisciplinary analysis taking technical, economic and legal aspects into account, the study reveals many of the challenges faced by German copyright law with respect to innovation in digital markets. The work thus provides an empirical basis for drafting proposals for a reform of German copyright law.

Study | 02/23/2016

Principles on Conflict of Laws in Intellectual Property (CLIP)

The European Max Planck Group on Conflict of Laws in Intellectual Property (CLIP) is a group of scholars in the fields of intellectual property and private international law. It was established in 2004 and has regularly met to discuss issues of intellectual property, private international law and jurisdiction since then. The Group has drafted a set of principles on conflict of laws in intellectual property and tends to provide independent advice to European and national law makers. The Group is funded by the Max Planck Society.

Principles on Conflict of Laws in Intellectual Property
The Group has prepared Principles on Conflict of Laws in Intellectual Property (CLIP Principles). These Principles cover international jurisdiction, the applicable law, and recognition and enforcement of foreign judgments in the field of intellectual property. The Principles are scheduled to be published with comments and notes in 2012 by Oxford University Press.

On August 31, 2011 the Group advanced the Final Text of the Principles. This text was presented to an interested audience during a conference on the CLIP Principles on November 4–5, 2011 at the Harnack-Haus in Berlin. After the Conference, this text has been subject to few editorial amendments and replaced by the Final Text of December 1, 2011.

Final Text – December 1, 2011

In order to facilitate its accessibility, the Final Text of the Principles has been translated into different languages by scholars and practitioners working in the fields of intellectual property and private international law. The following non-authentic translations are available:

Chinese translation
German translation
Spanish translation

Preceding the final Text, in an effort to communicate to the public at large the results achieved up to then, the Group made available a Draft and three Preliminary Drafts.

First Preliminary Draft – April 8, 2009
Second Preliminary Draft – June 6, 2009
Third Preliminary Draft –September 1, 2010
The Draft – March 25, 2011

Recommendations to European and national law makers
The Group has made recommendations to the European legislator on issues of jurisdiction, conflict of laws and recognition and enforcement of foreign judgments.

Comments on the European Commission’s Proposal for a Regulation on the Law Applicable to Contractual Obligations („Rome I“) of December 15, 2005 and the European Parliament Committee on Legal Affairs’ Draft Report on the Proposal of August 22, 2006

Exclusive Jurisdiction and Cross-Border IP (Patent) Infringement – Suggestions for Amendment of the Brussels I Regulation (published in: (2007) EIPR 195).

Study | 05/01/2015

WIPO-Vertrag von Marrakesch: Urheberrechtliche Schranke zugunsten von Blinden, Sehbehinderten und Menschen mit Leseschwäche

Study | 04/05/2015

Copyright, Competition and Development, Study on behalf of the World Intellectual Property Organization (WIPO)

Study of the Max Planck Institute on competition law in copyright-related markets on behalf of the World Intellectual Property Organization (WIPO), December 2013

English version (original)