Inventing inclusive patents

Geertrui Van Overwalle (KU Lueven), “Inventing inclusive patents”

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 new approach to open innovation (‘new’ open innovation) and craft legal tools establishing universal and sustainable use of high quality, technical inventions going beyond the realm of software. Resonating contemporary legal philosophy on property rights, we propose 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 behaviour 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.