Introduction

“Therefore, we need to move beyond the simple idea of closure that excludes opening, the simple idea of opening that excludes closure […] like in the idea of frontiers, as a frontier is both what allows and prevents passage, what closes and what opens” (Edgar Morin, La Méthode – Tome 1: La nature de la Nature, Le Seuil, Paris, 1977).

Intellectual property has clearly become a key factor for innovation processes in the complex chain, starting with the creation of new ideas and ending with the launch on the market of the goods or services that may derive from them. It plays a primary role in the promotion or channeling of innovation in every decentralized market economy where public authorities are not necessarily in the best position to orient innovation efforts towards socio-economic needs. The legal framework and the relevant institutions play an increasingly significant role as a regulation instrument, supplementing the market mechanisms.

Moreover, evidence suggests that in recent times owning and using intellectual property is playing a more significant part in the strategies of innovative companies and, similarly, issues of intellectual property have come to the fore of the political agenda concerning innovation policies [WIP 11].

However, the crucial role of intellectual property is ambiguous and often very controversial. Intellectual property is not a simple indicator of innovation capacity. In this field, more does not necessarily mean better. The relevant rights make it possible to regulate access to knowledge and its potential use by establishing the conditions for the right-holder to either accept to let a third party exploit the protected subject matter or not. It is in this sense that intellectual property rights essentially constitute a monopoly and exclusive rights: they confer to their respective holders the right to authorize as well as forbid. In this respect, intellectual property law departs from the principle of freedom of trade and industry and is often at the center of heated debates on a philosophical and practical level. This is why the basic issue that involves finding out how and to what extent intellectual property rights boost innovation is anything but easy.

This work aims to provide interpretation keys that make it possible to understand these debates by analyzing the different ways in which intellectual property rights interact with innovation activity. It deals with this subject mainly from an economic standpoint, but it also refers to its legal, technological and management dimensions. It is meant both for an academic audience (students, teachers, researchers) and for people working in the field and interested in the issues of intellectual property in their institution or organization, be it a company or any other kind of body (technology transfer organizations, etc.).

This work is structured as follows. The first three chapters deal with classic questions of intellectual property in relation to innovation.

After taking a brief look at the historical creation of intellectual property rights, the first chapter begins by reconsidering the issue of their goals. Insofar as the digital revolution is often highlighted to justify a need for aggiornamento, it is undoubtedly useful to reconsider the origins and principles underlined to justify the establishment of these rights, mostly during other revolutions, namely the industrial revolutions in the 19th Century. Besides, the analysis recalls that other mechanisms can be conceived to promote the production of the knowledge necessary for innovation, especially in the field of research and development (R&D). The general presentation of intellectual property rights allows us to highlight the fact that they are not limited to the best-known formal legal tools, namely patents. Taking into consideration other tools such as copyright, trademark law and industrial design right is all the more important as innovation cannot be reduced to R&D activities, and it includes a non-technological component, whether commercial, organizational, or esthetical. It is also recalled that other informal mechanisms, among which trade secrets and lead time over competitors, also allow companies to reap the rewards of their innovation activities.

The following chapter examines the choices made by companies in relation to these different means of protection. It shows that the means used to secure the product of their innovation effort may occasionally be combined and are practically more or less relevant, especially according to the countries considered, the size of the companies that use them, their business lines and the types of innovations involved. Moreover, several empirical works make it possible to compare the effectiveness of each way of protecting innovation from the standpoint of the company involved. Some also lead us to assess the added value that companies see in patenting a specific innovation. They show that the premium provided by the patent to its holder is, in most cases, only a true incentive in a small number of sectors. However, they also indicate that there are inventions that are worth being patented in all industrial sectors since, in the end, each patent is like a bet where the return on investment is most often unfavorable but in case of success the profits may be considerable.

Are these profits on a microeconomic level, which derive from conferring temporary monopoly rights that aim to boost innovation, well-proportioned? Do they not involve, on the other hand, costs that are too high for third parties? This issue has been hotly debated for a long time and it produced interesting results about the optimal dimensions of patents and copyright (term, field protected, etc.). Besides, different arrangements or potential adjustments allow us in principle to set the rights as well as possible in order to find the best balance for overall social welfare: obligation to disclose technical information in patent applications, pre-grant opposition procedures, mechanisms related to licenses, interaction with competition policies, exemption regimes in some cases, fees for obtaining or renewing patent rights, etc. (Chapter 3).

The two chapters which follow examine the new ways in which companies are using intellectual property in relation to new patterns of innovation.

Focusing on how companies use intellectual property, Chapter 4 underlines how these uses are less and less limited to the traditional role of protecting innovation in a narrow sense, namely against counterfeiting or piracy. They have become more subtle and ambiguous. We can schematically distinguish broadly between four groups of strategies. One of them, based on licensing agreements, goes hand-in-hand with the development of markets for technology. Another corresponds to a cooperation strategy where intellectual property may be used both as currency and as a way of sharing some intangible assets that are essential for innovation, but also as a signaling tool, especially to make it easier to obtain funding for innovation. Another type of use, which is the most controversial, refers to a movement strategy, reminiscent of an arms race, and can be illustrated by the notion of blocking patents. As a result, intellectual property rights by now interact with innovation through complex channels and have acquired a central role in helping the right-holders situate themselves in relation to their competitors or partners.

Moreover, what do we basically know about the way in which the system of intellectual property rights meets the needs resulting from new forms of innovation and the development of new technologies? To what extent can this system adapt to the challenges that derive from the expansion of information goods and the digital transformation that eliminates copying costs, etc.? Other questions deal with its ability to drive the new collaborative innovation practices called open innovation. Moreover, to what extent is the increasing number of patents an obstacle to innovation in the technological fields where innovation is cumulative and each invention heavily relies on previous progress? To make an assessment, we have chosen to examine two critical fields: biotechnologies – with the delicate issue of access to genetic resources and research tools – and software development. In the latter case, the respective advantages and drawbacks of patents and copyright are always debated but open-source licenses offer innovative solutions while also showing new ways of tackling the issues related to intellectual property (Chapter 5).

The last three chapters analyze the new regulatory issues, namely the challenges faced by public policies in relation to the recent and future developments of the intellectual property system.

The changes that have marked the use of intellectual property rights and innovation practices can be ascribed to a large extent to the evolution of the general institutional framework. In this respect, the main feature is the overall trend towards the reinforcement of intellectual property systems that started at the beginning of the 1980s. At first sight, this movement begins in the United States and involves a broadened scope of patentability which includes new fields and the creation of specialized courts. However, it is more general and, to a large extent, it corresponds to a sort of one-upmanship in which most developed countries have indulged. The progressive growth of the copyright protection term can aptly illustrate this point. This change can be conceived in relation to developed countries, where intellectual property rights are used as tools to ensure international competitiveness and...