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Patent Law in Global Perspective$
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Ruth L. Okediji and Margo A. Bagley

Print publication date: 2014

Print ISBN-13: 9780199334278

Published to Oxford Scholarship Online: May 2014

DOI: 10.1093/acprof:oso/9780199334278.001.0001

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A False Sense of Security Offered by Zero-Price Liability Rules? Research Exceptions in the United States, Europe, and Japan in an Open Innovation Context

A False Sense of Security Offered by Zero-Price Liability Rules? Research Exceptions in the United States, Europe, and Japan in an Open Innovation Context

Chapter:
(p.379) 13 A False Sense of Security Offered by Zero-Price Liability Rules? Research Exceptions in the United States, Europe, and Japan in an Open Innovation Context
Source:
Patent Law in Global Perspective
Author(s):

Esther van Zimmeren

Geertrui van Overwalle

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199334278.003.0013

It is widely accepted that research exceptions are one of the legitimate exceptions to the exclusivity granted by patent rights. In principle, a robust research exception can fuel follow-on innovation, ward off "patent thicket" problems, and mitigate refusals to license. Yet, a comparative analysis of the research exception in the US, Europe, and Japan shows that, as far as a general research exception does exist, its boundaries often are unclear and confusing. This chapter revisits the role and the impact of the research exception in an "open innovation" setting. The core research question the chapter seeks to address is how open and collaborative innovation challenges the concept, rationale, and scope of the research exception, and whether current national research exceptions can effectively deal with regional and global, large-scale collaborations. The chapter applies a two-step approach. First, it describes and analyzes the content and scope of the current research exceptions in the US, Europe, and Japan. Next, it assesses and evaluates the current regimes using the property rights/liability rules dichotomy as an analytical framework, enabling us to detect deficiencies and suggest routes for improvement.

Keywords:   research exceptions, open innovation, property rights, liability rules, access to knowledge, experimental use

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