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Abstract:
While, in a traditional perception, IP law is all about protection and exclusivity, recent developments such as the strategic use of standard-essential patents (SEPs) present access rather than exclusion as a key driver for innovation. Although standardization generates important benefits to society it does also entail substantial risks such as the abuse of SEPs. From an analysis of important SEP-related practices it becomes evident that they constitute an important context in which a new demand for access to proprietary technology arises. When TRIPS is put to their litmus test, the result is double-edged. On the level of its fundamental provisions TRIPS cannot only accommodate the need for access. With its goal to balance the interests of technology owners and those who urge for a right to use protected technology TRIPS is even in the position to foster fair access. However, specific provisions on access requirements, such as Article 31 TRIPS on compulsory licenses, prove unsatisfactory. Until reform is brought about, the existing set of provisions must be read appropriately.
