Inventing Inclusive Patents. From Old to New Open Innovation

Open innovation is the subject of increased scholarly debate. A lot of attention has thereby been paid to firm-centered open innovation, characterized by a for-profit motive and the interplay between patents and contracts,... [ view full abstract ]

Open innovation is the subject of increased scholarly debate. A lot of attention has thereby been paid to firm-centered open innovation, characterized by a for-profit motive and the interplay between patents and contracts, resulting in restricted openness. Inspired by the increasing call for more openness and triggered by the strong ethos of sharing in innovator communities the present paper examines how the law can assist in establishing a more open approach to open innovation (‘new’ open innovation) and craft legal tools establishing universal and sustainable access and use of high quality, technical inventions going beyond the realm of software.

Resonating contemporary legal philosophy on property rights, the article proposes the introduction of a new, alternative patent: the inclusive patent. The inclusive patent is perceived as a one-sided right geared to include rather than to exclude others, and encompasses as an attribute the right to enforce sharing behavior and take non-sharing users to court. The inclusive patent is further conceived as a registration patent obtainable at low cost. The inclusive patent regime may be developed as a semi-codified regime where the inclusive patent entitlement is provided by law and the open source copyleft type license is built on top by private parties, or as a fully-codified regime where the legislature imposes universal and sustainable access and use ex ante.
The inclusive patent may meet the needs of both innovator firms and innovator communities: it is a valuable alternative for firms making use of non-assert clauses and provides more legal certainty to users, and it meets the needs of innovator communities and offers a powerful property entitlement to enforce the sharing ethos.

During the conference we aim at better embedding the inclusive patent in two ways. On a more general level, we would like to engage in a conversation on the normative foundations of the open sharing ethos. Legal scholars have often spontaneously sympathized with innovator communities and with their values of sharing and openness. However, it is not clear whether and why values like ‘sharing’ and ‘openness’ are in fact ‘good’. Apart from the economic narrative(s), exploration of political-philosophical theories might be helpful here. On a more concrete level, we would like to learn how sharing practices are actually achieved by so-called maker communities: groups of people with common interests in tinkering and creating technical artefacts, and part of an eco-system of sharing and maximum access to technology.