Abstract
In the previous chapter, we explored how the underlying kaleidoscopic structure of the patent system in particular, and of the intellectual property rights (IPRs) in general, stir uncertainty over the scope and duration of patent awards. The convoluted nature of the patent claim system is bound to produce a lax interpretation of patent claims under the light of broad technical notions such as ‘novelty’ and ‘non-obviousness.’ The lax interpretation of what is subject to patentability adds further imprecision to an already incomplete set of legal rules.
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Notes
- 1.
Such provision states: “Like injunctive relief, a monetary recovery for trade secret misappropriation is appropriate only for the period in which information is entitled to protection as a trade secret, plus the additional period, if any, in which a misappropriation retains an advantage over good faith competitors because of misappropriation” (Section 3a).
- 2.
Sometimes this strategy may be pushed too hard into an anticompetitive territory. A case in point is AstraZeneca’s appeal of a patent settlement, which was dismissed by the European Court of Justice, in early December 2012. The Court imposed on the company for two cases of abuse of a dominant position relating to blocking or delaying generic copies of the anti-ulcerant drug Losec (omeprazole). The Court found that AztraZeneca misused regulatory procedures to delay generic competitors in the market, as it intended to extend the life of its patents on Losec. Therefore, it ordered AstraZeneca to pay €52.5 million for abusing a dominant market position in the market for ulcer medicines. A similar case was decided in Ecuador in 2011, against Pfizer.
- 3.
The popularity of patent donation is such that in a 2003 Treasury Issue Notice, it was declared that the IRS is aware of purported charitable contributions of intellectual property involving: (1) transfers of nondeductible partial interests in intellectual property; (2) the expectation or receipt of benefits in exchange for transfers; (3) inadequate substantiation of contributions; or (4) overvaluation of intellectual property transferred.
- 4.
News available at: http://www.thefashionlaw.com/home/carolina-herrera-sues-oscar-de-la-renta-over-monse-founder-laura-kim.
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De Leon, I., Fernandez Donoso, J. (2017). Exercising Market Power Through IP. In: Innovation, Startups and Intellectual Property Management. Springer, Cham. https://doi.org/10.1007/978-3-319-54906-4_2
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