ausblenden:
Schlagwörter:
Patent, Open Innovation, Intellectual Property Rights, Governance, Coordination
Zusammenfassung:
As the paradigm of innovation becomes more user oriented and collaborative, to benefit from this changing
paradigm, firms need to adjust their intellectual property rights management strategy and devise tools to manage
openness. Crucially, firms need to resolve is how to interface the “closed innovation” paradigm required to
acquire intellectual property rights in law and to introduce openness in the process of innovation and
decentralised innovation process. While the topic of open innovation has produced numerous works especially in
the area of business administration and organizational studies, literature on interfacing open innovation with
intellectual property law is rare or rather focused on specific subject matters of IP. For example, legal research
on open innovation focus on computer, open source software or user generated contents types. This leaves out
vast areas of technology uncovered and under researched. Based on literature review and qualitative case studies
on a group of Finnish firms, this paper aims to identify tools that are required to manage openness, in response to
legal context, and examine to what degree the protection of intellectual property, in particular patent, can be
adapted or interfaced with open innovation paradigm.
The paper finds that (1) open innovation is dynamic, (2) all commercial open innovation is always managed or
controlled, and that (3) actors and modalities of exchanges are heterogeneous and dynamic. Two of these aspects
make it difficult to regulate open innovation with intellectual property law, that in open innovation (1) there are
always multiple claim holders who have heterogeneous interests and that open innovation requires (2) openness
in the communication and exchange. Multiple claim holders – as contributors, investors, co-inventors,
collaborator call for a governance structure over how their claims can be prioritised. This paper argues that
intellectual property law does regulate the question of co-inventor, co-creator, and co-owner but does not
regulate how these rights may be coordinated or managed, in what hierarchy. To prevent disputes, we find
proactive private ordering is necessary. Furthermore, open innovation benefits from open exchange in
communication, in the absence of clear and certain rules on how such exchange lead to loss of right, “open”
communication may not occur. In other words, unless openness is managed, the fluid communications that are
crucial in open innovation will not occur. Thus we find that openness in innovation is always managed either
formally (through formal governance means i.e. contract, explicit firm policy) or informally (through community
norms, trust and implicit corporate culture.)
The paper argues that governance means are best provided by the firms either as a contracts, or general policy
over information exchanges, in other words a broader form of contract (Private ordering). As a secondary option,
a certain proposals to the patent law revision can also be made through introduction of limitation and exception
to the right. This paper has two practical implications. First, in the absence of proper legal safeguard for own
collaborative input, the paper advocates contract based governance approach. Reflecting this, open and
collaborative innovation requires firms to more actively and strategically involve in the governance of
intellectual property. Secondly, as a proposal for patent law reform, the paper suggests law and policy makers to
explore a creation of particular defence for joint collaborators against the claims of infringement in patent law.
