A Critical Mind: Hanns Ullrich’s Footprint in Internal Market Law, Antitrust and Intellectual Property

Preface
Contents
Part I: European Legal Order
Market Access and Competition Rules of the EU: Was Their Constitutionalization Based on a Judicial Error?
1 Introduction
2 Grimm´s Critique of the ECJ´s Jurisprudence
3 From `Common Market´ to `Internal Market´
4 The Legal Content of the `Internal Market´ Concept
5 The Treaty Interpretation by the ECJ
5.1 The Market Access Rules (Economic Freedoms)
5.1.1 Direct Effect
5.1.2 Supremacy
5.2 Competition Rules
5.2.1 Direct Effect
5.2.2 Supremacy
6 The Elements of Grimm´s Criticism
6.1 The Court´s Method of Interpretation
6.2 The Court´s Alleged Self-Empowerment
6.3 The Lack of Democratic Legitimacy
7 Grimm´s Proposal for a Remedy
8 Conclusion
References
Renewing the Van Gend Pledge
1 Hanns Ullrich and the EU Courts
2 The Evolving Supranational Character of EU Law
2.1 Retracing Van Gend
2.2 Elements of Supranationality
2.3 No Peer Resistance
2.3.1 The Example of Primacy
2.3.2 The Example of Direct Effect
2.3.3 Interim Conclusions
2.3.4 Supranationality as a Stability Tool
2.3.4.1 Order in Białowieska
2.3.4.2 Judgments ASJP and LM
2.3.4.3 Order and Judgment in Sąd Najwyzszy
2.3.4.4 Assessment: Renewing the Tradition of Van Gend and Costa
3 Conclusions: A Maximum Intensity for Supranationality?
References
Why Is the Regulation of Enforcement Through the EU So Difficult?
1 Clarifications
1.1 Law Without Enforcement?
1.2 The Black Box of Enforcement: What We Do Not Know
1.3 The Search for an Explanation and a Tentative Argument
2 The Ambiguities of the Competence Order
2.1 Competition Law Is Different
2.2 The Non-Particularities of the Damages Directive
3 The Structural Bias Towards Centralised Public Enforcement: Is the Directive the Game Changer?
3.1 Infringement Procedure
3.2 Preliminary Reference Procedure
3.3 Regulated Markets
3.4 The Game Changer
4 The Multi-Level Governance Structure and Institutional Change
4.1 Verticalisation of Networks
4.2 Horizontalisation Through Institutional Change
5 Concluding Remarks
References
Part II: Competition
On the Political Nature of Competition Law: A Critical Essay
1 Competition Law, Economics and Politics
2 Two Historical Stages of Competition Policy
3 Main Shortcomings of the Modernist Competition Law and Economics
4 Competition Policy Will Never Be the Same Again
5 The Emergence of the Postmodern Competition Policy
6 Conclusion
Reference
Competition Law and Political Influence of Large Corporations: How Antitrust Analysis Can Capture the Link Between Political a...
1 Introduction
2 The Link Between Economic and Political Institutions
3 A Brief Historical Overview of the Relationship Between Antitrust Law and Democracy
4 Is Competition Law an Adequate Tool To Address Concerns Arising from the Political Power of Large Corporations?
4.1 Legal Standards and Evidence That Captures the Relationship Between Competition in Markets and Political Influence
4.2 Legal Standards and Evidence on Anticompetitive Political Activism
5 Conclusions
References
Cutting into Diamonds: Competition Law, IPR, Trade Secrets and the Case of `Big Data´
1 Introduction
2 Competition Law Yardstick: Refusal to Deal Test
3 Protection of Big Data
3.1 Database Protection
3.1.1 What Constitutes a Database?
3.1.2 What Databases Are Protected by the Sui Generis Right?
3.1.3 Summing Up
3.2 Trade Secrets Protection
3.2.1 What Constitutes a Trade Secret?
3.2.2 How Are Trade Secrets Protected?
3.2.3 Summing Up
4 Competition Law Assessment of Restrictions to Data Access Under DBdir and TSdir
5 Final Remarks and Perspectives
References
FRAND Declarations and the `Third-Party Effect´: A Contract Law and Competition Law Perspective
1 Introduction
2 The Dual Legal Relevance of the FRAND Declaration
2.1 From Huawei/ZTE to Improving Handovers
2.2 Legal Nature and Legal Effects of the FRAND Declaration and the Need for Precise Distinction Between the Different Elements
3 Applicable Law: The Example of the ITU/ISO/IEC FRAND Declarations
3.1 Characterization of the Conclusion, Validity, Interpretation and Legal Effects of the FRAND Declaration
3.2 Necessary Separate Assessment of the Contractual Obligation and Possible Effects in Rem
3.3 No Choice of Law by the Parties According to Art. 3 Rome I Regulation at ITU/ISO/IEC
3.4 Applicable Law under Art. 4(2) Rome I Regulation
3.5 Applicable Law Under Art. 4(4) Rome I Regulation
3.5.1 No Characteristic Performance
3.5.2 Principle of the Narrowest Connection
4 Doctrinal Classification of the FRAND Declaration Under Swiss Law
5 Competition Law Obligations Under Huawei/ZTE
5.1 Huawei/ZTE Standard for the Enforcement of SEPs for Which the Patentee Has Submitted a FRAND Declaration
5.2 Commitments Concerning SEPs for Which Previous Patent Holders Have Made FRAND Declarations
6 Contractual Obligations Independent of Market Dominance: Qualified Contractual Third-Party Effect of the FRAND Declaration?
6.1 Effect Independent of a Dominant Position
6.2 Indirect Contractual Obligations of the Subsequent Buyer?
7 Conclusion
References
In Rem Effect of Licensing Declarations: Hanns Ullrich´s Traces in FRAND Case Law
1 The Düsseldorf Higher Regional Court Rules on an In Rem Effect of FRAND Declarations,
2 Makes Hanns Ullrich´s Approach the Law of the Land,
3 Provides Food for Discussion,
4 and Incites Further Research
References
Part III: Intellectual Property
Mapping the Intangible Economy
1 The Rise of the Intangible Economy
2 Regulating the Intangible Economy
3 Legal Policy in the Intangible Economy: Specific Issues To Be Addressed
References
Exclusive Rights for a Purpose
1 Intellectual Property as a Means of Competition
2 Intellectual Property as a Framework Regulation
3 Intellectual Property as a Private Right
4 Building a Bridge Between Form and Function
5 Concluding (and Inconclusive) Remarks
References
From a Rights-Based to a Procedural Approach: Re-Purposing the Exercise of Intellectual Property Rights
1 Introduction
1.1 First Step: The Footnote
1.2 Second Step: The Speaker
1.3 Third Step: Following the Writer Closely
2 Methodological Framework
3 The Procedural Restructuring of the Exercise of Subjective IP Rights: The Case of Copyright
3.1 Rising Transaction Costs of the Contractual Model
3.2 Opt-Out Regimes: Orphan and Out-of-Commerce Works
3.3 Rebuttable Presumptions Within Licensing Law
3.4 Expressing Usage Reservations in `Code´
4 Strong Limitations or Prioritizing Licensing Schemes: The Case of Art. 5 DSM Directive
4.1 The Issues
4.2 Limitations as a Competition-Enhancing Tool
4.2.1 Difficult Policy Choices
4.2.2 Exclusive Rights and Market Failures
4.2.3 Designing Competition-Enabling Limitations: A Difficult Task
4.3 A FRAND Approach Towards `Suitable Licenses´ in Art. 5 DSM Directive
4.3.1 Mandatory Limitation Subject to Licenses
4.3.2 Procedural Restructuring in Action
4.3.3 Structuring the Finding Process for Suitable Licenses
5 Final Remarks
References
How to Stay Modern Feudalism? Comparing EU and US Methodologies in Containing Post-Sale Restraints by Way of IP Exhaustion
1 Introduction: Freedom Versus Feudalism
2 Exhaustion Revisited
2.1 The Doctrine of Exhaustion
2.2 Kanzi (CJEU 2011)
2.3 Lexmark (USSC 2017)
2.4 Analysis
2.5 Interim Conclusion
3 Strict Rules Versus Open Frames
3.1 A Methodological Question
3.2 Functions of Rigidity and Flexibility
3.3 Categorizing Exhaustion
3.4 A Novel Test for Exhaustion
3.5 Summary
4 Circular Economy
5 Conclusion
References
Virtual Patent Networks and Their Network Effects
1 The Patent Paradox Puzzle
2 The Theory of Network Effects
3 The Patent System as a Virtual Network
3.1 Legal Independence and Autarky Value of Patents
3.2 Complementarity and Synchronization Value of Patents
3.2.1 Patents of Competitors
3.2.2 The Role of the Patent Subject Matter: Complex and Discrete Technologies
3.2.3 Complementarity Across Markets: Patents and Finance
3.3 Boundaries and Ownership of the Network
4 Conclusion
References
The Public Interest in Compulsory Licensing: Examining the Complementarity Between IP and Competition Law
1 Introduction
2 The Law and the Compulsory Licence/Public Interest Interface
2.1 Patent Law
2.1.1 Supranational Level
2.1.2 National Level
2.1.3 Grounds for and Meaning of the Public Interest Under Patent Law
2.2 Plant Breeders´ Rights Law
2.2.1 Supranational Level
2.2.2 National Level
2.2.3 Grounds for and Meaning of the Public Interest Under Plant Breeders´ Rights Law
2.3 Competition Law
2.4 Comments
3 Recent IP Case Law and the Compulsory Licence/Public Interest Interface
3.1 Raltegravir: Patent Law and the Public Health Interest
3.1.1 Patent Law Perspective
3.1.2 Relation to Competition Law
3.2 Blackcurrant: Plant Breeders´ Rights Law and the Market-Oriented Public Interest
3.2.1 Plant Breeders´ Rights Perspective
3.2.2 Relation to Competition Law
3.3 Comments
4 Conclusion
References
Part IV: Data Economy
Digital Sovereignty and Governance in the Data Economy: Data Trusteeship Instead of Property Rights on Data
1 Introduction
2 Data Ownership: Property Rights on Data?
3 Four Regulatory Models of Access and Disposal Rights to Data
3.1 Model 1: Jaron Lanier-Individual Rights of Disposal and Micropayments
3.2 Model 2: Evgeny Morozov-Data as a Public Good
3.3 Model 3: Elinor Ostrom-Data as Commons
3.4 Model 4: David Winickoff-Trusteeship for the Data Economy
4 Appraisal and Criticism of the Four Models of the Data Economy
4.1 Discussion of Lanier´s Data as a Private Good: Market and Micropayments
4.2 Discussion of Morozov´s Model of Data as a Public Good: The State as the Main Actor
4.3 Discussion of Ostrom´s Model of Data Commons: Rules Beyond State and Market
4.4 Discussion of Winickoff´s Model of Data Trusteeship: Delegated Control, Governance and Participation
5 Interim Summary: Strengths and Weaknesses
6 Data Trusteeship: From Idea to Practice?
7 Conclusion
References
Incentives for Data Sharing as a Case on (Regulating) Knowledge Externalities
1 Introduction
2 Framing the `Incentives Dilemma´ in the Data Economy
2.1 Innovation Incentives in the Big Bata Context: Is There a Problem?
2.2 The `Access-Incentives Stalemate´ Over Data and the Analogy with IP Rights
2.3 The Dual Nature of Knowledge Externalities
2.4 Exclusivity as a Remedy for and a Cause of Efficiency Trade-Offs
3 Access-Incentives Dilemma in Light of the Theories of Knowledge Externalities
3.1 The Recast of the `Free-Riding´ Argument and a False Analogy with `Knowledge Spillovers´
3.2 Missed Opportunities in Innovation as a Social Cost of (Factual) Control over Data?
3.3 Is the Market Mechanism a Viable Solution?
3.4 An Offsetting Effect of Mandatory Data Sharing on Innovation Incentives?
4 Concluding Remarks
References
Some Remarks on the Subjective Profiles of the EOSC Project, Especially from the Perspective of IP Law
1 Introduction
2 The EOSC Project
3 Open Questions
3.1 Contributors and Users
3.2 Intellectual Property
4 Conflicting Interests
4.1 Secrecy or Deferral
4.2 Third-Country Involvement
4.3 Users
4.4 Commercial Publishers
4.5 Use of the Data Stored in the EOSC
References
Part V: Artificial Intelligence
Inventorship in the Age of Artificial Intelligence
1 Introduction
2 Automation of the Inventive Process
2.1 Drug Development
2.2 Antenna Design
2.3 Intermediate Findings
3 Legal Assessment
3.1 Inventorship
3.2 The Substantive Aspect
3.3 The Formal Aspect
3.4 Intermediate Findings
4 Perspectives for the Future
4.1 Overcoming the Human Invention Requirement
4.2 Deletion of Droit Moral Considerations
4.3 Conformity with International Treaties
5 Conclusion
References
Artificial Intelligence and the Technicality Requirement of Patent Law
1 Introductory Remarks
2 Overview of Patent Law Issues Arising from AI Inventions
3 The General EPO Approach on Technicality
4 The Need for Technicality in AI-Related Inventions
5 Conclusion
References
Patent Infringement by Development and Use of Artificial Intelligence Systems, Specifically Artificial Neural Networks
1 Introduction
2 Patent Law and Artificial Intelligence: An Overview
3 Definition of Artificial Intelligence in the Patent Law Context
4 Patent Infringement by Development and Use of Artificial Neural Networks
4.1 Design of the Topology of the Untrained Neural Network
4.2 Training of the Neural Network
4.2.1 Patent Protection of the Training Data?
4.2.2 Patent Protection of the Training Method
4.2.2.1 Patentability of a Training Method
4.2.2.2 Infringement by Use of a Patented Training Method
4.2.2.3 Limits of Patent Protection for Training Methods
4.3 Use of the Trained Neural Network
4.3.1 Scope of the Patent Claim and `Autonomous Development´ of Neural Networks
4.3.2 Proof of Patent Infringement in the `Black Box´
4.3.3 Divided Patent Use as an Obstacle to Establish Patent Infringement?
4.3.3.1 Attribution of Features of a Patent Claim Realized by Different Actors
4.3.3.2 Who Is the Infringer?
4.3.3.3 Indirect Infringement
5 Attribution of `Autonomous´ Infringements by an AI System
6 Fault
7 Conclusion
References
Part VI: Digital Media
Copyright, News, and `Information Products´ Under the New DSM Copyright Directive
1 Foreword
2 Prior European Experience on Rights for Press Publishers
3 The Snippets Regime: From Tolerance of `Negligible Theft´ in the Pre-Digital Era
4 to the Present Stricter Regime in the Digital System
5 The Scope of the New Right
6 Sequitur. The Conditions of Copyright Protection of Snippets Under the Directive. A Debatable Quantitative Approach
7 A More Balanced Approach to `Compensation vs. Access´
References
Media, Legal Tech and Modern Copyright Law
1 Introduction
2 The External Presentation of Jurisprudence in the Public Media
2.1 The Classic Media and Jurisprudence
2.2 Legal Columns in the Daily Newspapers
2.3 The Court Report
2.4 Marketing by Lawyers
2.5 Press Work of the Judiciary
2.6 The Modern Media and Jurisprudence
3 The Internal Perspective/The Input
3.1 Reorientation in Teaching: E-Learning
3.2 Dealing with Media and Copyright Law
3.3 Legal Apprenticeship and Sec. 60a et seq. Copyright Act
3.4 The End of Legal Informatics
3.5 Open Access
3.6 Google and the Judicial Knowledge Society
4 Conclusion and Outlook
References
Media Policy and Copyright in Europe: The Progressive Expansion of the Law for Broadcasters to Online Platforms
1 Introduction
2 Relevance of Copyright for Broadcasters and Audiovisual Authors
2.1 Legislative History
2.2 Plurality of Rights Granted to or Owned by Broadcasters
2.3 Exclusive Rights
3 Broadcasters as Users of Copyright Works
3.1 Rights Clearance and Collective Rights Management
3.2 Copyright Exceptions Beneficial to Media Freedom
3.3 The `Country of Origin´ Principle and Its Progressive (Although Limited) Extension
4 Ensuring Fairness at a Time of Media Convergence
4.1 Video-on-Demand (VoD) Services
4.2 Social Media Platforms
5 Conclusion
References
Part VII: Biotechnology
Gene Editing Technology Patents or Monopolization of Scientific Knowledge and Health Care?
1 Introduction
2 The Case of Gene Editing Technology
2.1 The U.S. Jurisprudence
2.2 World Scientific Moratorium on Gene Editing
2.3 Further Scientific Advances
3 Reassessment of Patenting of Knowledge
3.1 Gene Editing Patents: `Exclusive Rights for a Purpose´
3.2 Anticommons Effect of Gene Editing Patents
4 Licensing Pools: An Adequate Answer?
4.1 Patent Pools in the Gene Editing Sector
4.2 The Development of Licensing Policies for Gene Editing
5 Conclusion
References
A Comprehensive Approach to Plant Variety Rights and Patents in the Field of Innovative Plants
1 Introduction
2 Innovations in the Plant Sector
2.1 Areas of Innovation in Green Biotechnology and Plant Breeding
2.1.1 Innovative Plants (Plants for Cultivation)
2.1.2 Upstream: Naturally Occurring Plants or Organisms and Their Properties
2.1.3 Downstream: Products
2.1.4 Follow-on Plant Innovations
2.2 Economics of Plant Innovations
2.2.1 Plant Innovations as Immaterial or Material Goods?
2.2.2 Which Plant Innovations Should Be Protected?
2.2.3 Social Costs of Exclusion: Farmers and Follow-on Innovators
2.2.4 Costs of Registration, Enforcement and Transaction
2.2.5 Cumulation Must Not Undermine Efficiency of IP Rights
2.3 Actors in the Field of Plant Innovation
3 Key Issues of a Coherent Application of the Existing Protection Regimes
3.1 Subject Matter
3.1.1 Patent Law
3.1.2 Plant Variety Protection
3.2 Disclosure
3.2.1 Function of Disclosure Requirements
3.2.2 Disclosure in Patent Law: Patent Application and Deposit
3.2.3 Submission of Material in Plant Variety Protection
3.3 Scope of Protection
3.3.1 Scope of the Exclusive Right
3.3.1.1 Use of Protected Plants
3.3.1.2 Upstream: Protected DNA
3.3.1.3 Downstream: Vertical and Horizontal Extension, Products
3.3.1.4 Follow-on Innovations (See Limitations and Exceptions)
3.3.2 Limitations and Exceptions
3.3.2.1 Exhaustion Principle
3.3.2.2 Farmers´ Privilege
3.3.2.3 Breeders´ Exemption
4 Unification of Protection Regimes?
4.1 Subject Matter/Nature of IP Rights
4.2 Requirements and Procedure
4.3 Disclosure
4.4 Scope
4.4.1 Exclusive Right
4.4.2 Limitations and Exceptions
5 Conclusion
References
Part VIII: Global Market Order
TRIPS Through a Military Looking Glass
1 Introduction
1.1 The Political Legitimacy Gap of TRIPS
1.2 Bleak TRIPS
2 The Origins of the US National Security State and Military Innovation
2.1 Origins
2.2 Organizing for Innovation in Weapons
2.2.1 The R&D Money Pump
2.2.2 Open Source Pragmatism and Its Military Dictator
3 The NSS and US Multinationals: The Global Partnership Years
4 The US National Security State and China
5 Legitimacy in the Eyes of the National Security State
5.1 Carl Schmitt and Some Caveats
5.2 Schmitt´s Concept of the Political
5.3 The Friend-Enemy Distinction and the NSS
6 Conclusion
References
A Transactional Approach to Intellectual Property
1 Hanns Ullrich and International Intellectual Property
2 The Ideal of Global Harmonisation of IP
3 A Shift Towards a Transactional Approach
4 Situating the Transactional Approach in the Broader International Economic Context
References
Manufacturing for Export: A TRIPS-Consistent Pro-Competitive Exception
1 Introduction
2 The SPC and the Manufacturing for Export Exemption
2.1 Extension of Exclusive Rights Under the SPCs
2.2 SPC Exceptions for Stockpiling and Manufacture for Export
2.3 An Exemption to a Sui Generis Right Outside the TRIPS Agreement, But Compliant with It
3 WTO Jurisprudence on Patent Exceptions
4 Manufacture for Export Under Patent Law
4.1 Exports
4.2 Manufacturing for Export
4.3 Patent Term Extension
4.4 Limited Field of Application
5 Conclusion
References
Reductionist Intellectual Property Protection and Expansionist (and `Prodevelopment´) Competition Rules as a Human Rights Impe...
1 Competition Law and the Transfer and Dissemination of Technology
2 International IP-Related Competition Law? Only TRIPS Rules
3 A Shift of Balance: From Competition to Innovation Policy
4 Reasserting the Balance: A `Prodevelopment´ Understanding of Competition Law
4.1 The Objectives of Competition Law, Public Goods, and Human Rights
4.2 Articles 7 and 8 of TRIPS and the Object and Purpose of a Treaty
4.3 Articles 7 and 8 of TRIPS and `Systemic Integration´
4.4 The Right to Development
4.5 From the Right to Benefit from Science to `Transfer and Dissemination of Technology´ as a Human Right: `Territorial´ and `...
4.6 Implications for Competition Law: Deducing Human Rights Obligations
5 Consolidated Considerations for a `Prodevelopment´ Competition Law
References
Caught Between Post- and Neo-Colonialism: IP for Traditional Knowledge, Traditional Cultural Expressions and Indigenous Resour...
1 Introduction
2 Some Examples
2.1 An Example of TCEs: The Maasai Shúkà Cloth
2.2 An Example of TK: Umckaloabo
3 The Issues Raised
3.1 Cultural Interests
3.2 Legal Issues
4 The History of Moral Foundations
4.1 Colonial Argumentation
4.1.1 Ideological and Cultural Foundations
4.1.2 Legal Obstacles
4.2 The Post-Colonial Approach
4.2.1 Moving Away from Colonial Exploitation
4.2.2 Institutional Anchoring
4.3 Recent Critique of the Post-Colonial Approach
4.3.1 Capitalist `Freezing´ of Traditions
4.3.2 Racist Undertones of Defining Groups of Beneficiaries
4.4 Criticising the Criticism
4.4.1 Anti-capitalistic Critique in the Light of the Right to Self-Determination and Retribution?
4.4.2 Giving Way to Neo-Liberalism in a Neo-Colonial Way
5 Outlook
References