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Introduction: the basic paradigms and constitutional framework of intellectual property law 1

1. Foreword. The Mosaic and the Fabric 1

2. From Paris and Berne to Marrakech: IP's Basic Paradigms 2

Ⅰ. The classic dualism between patents and copyright,and its evolution 2

Ⅱ. The (expanded) protection of trademarks 4

3. The Firm as the Central Reference of IP Law 5

4. Rationale of that Centrality 8

5. The Dialectic with Social Interests Involved in the Overall Constitutional Framework 9

6. Intellectual Property and Antitrust: Distinct Rules 11

7. But Nonetheless Dialectally Intertwined 13

8. The Guiding Principles 17

9. Current Protectionist Trends 19

10. Specific Examples 20

11. Signs of an About-turn ... 23

12. Keep a Tight Hold on the Helm 28

Bibliographical Notes 30

Patent protection of innovations: a monopoly with pro-competitive antibodies 33

1. The Dialectic Physiognomy of Patents 33

Part Ⅰ The area of patentability: the often arduous distinction between basic and applied research 37

2. The Privatisation of the Fruits of (Applied) Research 37

3. Again on the Delimitation of Patentability to Applied Research:Its Rationale: Epistemological Considerations... 40

4 ...And Economic Considerations 43

5. The (Fragile) Boundary between 'Basic' and 'Applied'Research: So-called Targeted Research 45

6. Interpretative Adjustments 47

Part Ⅱ Striking a balance between exclusive protection and competitive dynamics of innovation 50

7. General Outline (Conditions and Limits of Exclusivity),Commencing from the Time Limits to Protection 50

8. The 'Exclusivity for Knowledge' Trade-off and its Effects 53

9. The Systemic Corollary: No Upgrading of Secrets to IP Protection: A Warning from an Italian 'Reform' 56

10. Qualifying Access to Patents: From 'Indulgence' ... 59

11 To a Hoped-for Increased Strictness - Beginning from Patent Offices 61

12. A Corollary on 'Inventiveness' in Utility Models: No to a Double Standard 64

13. Strict Proportion of the Scope of Exclusivity to What has been Effectively 'Found' (Inventum): Principle and Corollary 66

14. Patents and Innovation Dynamics: Foreword on Subsequent Innovation 69

15. Subsequent/Substitutive Innovation: Qualification Criteria 69

16. Derivative/Dependent Innovation: A Virtuous Regime of 'Non Voluntary' Cross-licences 71

17. Patents in the Distribution Chain: The Principle of Exhaustion 77

Part Ⅲ Conclusions, and some proposals 80

18. Preserving the Competitive Dynamics of Innovation 80

19. Some Corollaries, with Regard to Compulsory Licensing 82

20. Further Pro-competitive Corrections 86

21. Some Proposals for Extending Patent Protection 87

22. Finale: An Overall Rethink of the System - Should Winner Take All? 89

Bibliographical Notes 92

From art to technology: the expansion of copyright 98

Part Ⅰ Copyright v. Patent. Comparing rules and rationales 98

1. The Classical Model of Copyright: Historical Overview and Subject Matter 98

2. The Constitutional Basis and Essential Structure of Copyright 102

3. The Subject Matter of Protection: Expression, Not Ideas 103

4. Key Features of Copyright (and Differences Compared to Patents) 104

5. Plurality and Independence of the Exclusive Economic Faculties Granted by Copyright Law: The Power to Bar the Publication of Derivative Works (Including Translations) 108

6. Copyright and Third Parties' Access: The Debatable Approach of Directive 2001/29: 'Free/Fair Uses' as Discretionary 'Exceptions': on the Limits of Admissibility of Technological Protection Measures (TPM) 110

7. Circulation: Attenuated Exhaustion 118

8. Neighbouring Rights 119

9. The Articulated Rationale of Copyright 122

Part Ⅱ 'Technology copyright': the rationale of a 'trespass', and the related risks for the development of subsequent innovation and competition 124

10. Foreword on the Contemporary Features of Technology Copyright 124

Ⅰ THE CONVERGENCE BETWEEN FUNCTION AND AESTHETICS: FROM APPLIED ART TO INDUSTRIAL DESIGN 126

11. The Terms of the Question from an International Perspective.Or the Ambiguities of the EC Regulation 126

12. Playing Fields Distinction, Not Mere Cumulation, i.e., Amassing of Legal Protections 127

Ⅱ COPYRIGHT AND INFORMATION TECHNOLOGY 130

13. Origins and Scope of Copyright Protection for Computer Programs 130

14. The Protection of Databases 134

Ⅲ AN EFFECT-ORIENTED ASSESSMENT OF TECHNOLOGY COPYRIGHT 136

15. The Substantive Reasons: 'No Cost, No Test, No Access' 136

16. Has the Classic Model been Superseded in the Contemporary Context of Innovation? 136

17. Specific Reference to Network Industries and Conclusion 138

Part Ⅲ Copyright and the diffusion of culture and information through the new communication technologies 140

18. The Risk of Cultural Exclusion 140

19. Remuneration of Creative Work and Related Investments:New Content Distribution Models 142

20 Cultural Pluralism at Risk? 144

Bibliographical Notes 146

The distinguishing function and advertising value of the trademark: aspects and critique of the European reform 156

Part Ⅰ The classic system (before the reform) 156

1. The Fundamental Distinguishing Function of Trademarks 156

2. The Classic Paradigm Based on Protection of the Distinguishing Function 158

3. The Pro-competitive Role of Protecting the Distinguishing Function 160

4. Some Critical Aspects of Trademark Protection from a Competition Standpoint 161

Shape marks (three-dimensional marks) 161

5. Limitations to the Principle of Exhaustion at European Community Level 174

6. Beyond the Distinctive Function: Protection of the Trademarks' Suggestive Value ('Selling Power') 177

Part Ⅱ The reform: The business interests protected 181

7. The Cornerstones of the Reform 181

8. The Expanded Protection of Trademarks with 'Reputation' 182

9. Greater Protection also in Similar Sectors? 184

10. Expanded Protection of 'Renown' to De Facto Trademarks? 185

11. Conclusion: The Systemic Meaning of the Special Protection of Renowned Trademarks 187

12. A Further Aspect of the Reform with Competition Implications: Revocation for Becoming Generic 188

13. Whom Does the Reform Benefit? 188

Part Ⅲ The reform, and the risks of consumer deception 191

14. Fragmented Identity, and Informative Compensation 191

15. Qualitative Compensation? 193

Part Ⅳ Weighing up the reform 196

16. The Effects on Competition and the Market 196

17. Prices and Propensity to Innovate 197

18. Possible Repercussions on Denominations of Origin 199

19. Normative Room and Interpretative Tools to Balance out the Protectionist Effects of the Reform 201

Ⅰ. From inside trademark law 201

Ⅱ. From the 'outside' 204

Bibliographical Notes 204

5 Intellectual property and regulation(s) of competition 209

l. Foreword 209

Part Ⅰ Intellectual property and antitrust 213

2. The Earlier Perspective: Checking the Contractual Exercise of IPRs 213

3. Phase Two: Storming the Sanctuary Commencing from Telecommunications Standards 216

4. The Door is Open - But Not Wide Open; from Magill to Microsoft 218

5. Does the Exercise of IPRs Confer Market Power? Checking Each Basic Paradigm 221

6. Intermezzo: In Search of the Historical Roots of the European Approach 227

7. The Technological and Economic Rationale of the European Approach 229

8. Further Points and a Note about the Effects on the Dynamics of Innovation 232

Part Ⅱ Intellectual property and unfair competition 235

9. The Corporatist Origins of the Law 235

10. A Fresh Breeze from across the Channel 237

11. The 'New' Relationship with IPRs 238

12. Unfair Competition, Antitrust, 'Unfair Commercial Practices': Which Convergence? 239

13. Conclusion: A Systemic Convergence Focused on Consumer Welfare 240

Bibliographical Notes 242

Appendix - On TRIPs and developing countries: 'Don't do unto others ...' 247

1. Foreword 247

2. Adieu to the 'Local Working Requirement' 250

3. On the Deadlines for Applying TRIP Rules 252

4. Drawing some Conclusions ... 254

5. And Searching for Remedies 255

6. More on the Rationale for the Local Working Requirement,also as Concerns the Supply of Patented Drugs 256

7. Seq. AFortiori, When Exploitation of Local Biodiversity is Concerned 259

Bibliographical Notes 260

Index 263