The Future of Intellectual Property - Symposium on the Occasion of the MIPLC's Fifth Anniversary

On the occasion of MIPLC’s 5th anniversary, a dynamic Symposium on the „Future of Intellectual Property” was held in the Bavarian Academy of Humanities and Sciences. As the MIPLC’s 5th anniversary coincided with the Festschrift of Prof. Straus, each of the illustrious speakers also paid homage to Professor Straus for the essential and visionary role he played in establishing MIPLC. Professor Straus would no doubt be the first to mention the efforts of the many other MIPLC founding figures; however, it was readily apparent and perhaps goes without saying that MIPLC truly is his “Brain Child”.

As such it was only fitting that Professor Straus opened the Symposium. After warmly welcoming the many guests, Professor Straus began by saying a few words about the continuous positive development of the Center. He also looked back at the “absolutely harmonious cooperation of the four partners and their representatives” during his tenure as Chair of the Managing Board. Professor Straus then set the tone for the following speeches and discussions by calling for a “rational and balanced response to the actual needs of IP generators as well as of its consumers, be it in developing or developed countries” in all areas of IP.

Professor Thomas M.J. Möllers chaired the first topic, “The European Perspective”. He also referred to the harmonious cooperation between the partners and the role Professor Straus played in creating such a productive atmosphere. Professor Möllers then kindly introduced Professor Stanisław Sołtysiński, MIPLC Faculty Member and Professor at the University of Poznań.

Professor Sołtysiński spoke eloquently about the “never-ending dispute” regarding the merits, shortcomings and limits of IP laws. He started-off by asking the respective questions of whether the TRIPS rationale benefitted developing countries and whether the new EU Member States profit from adopting the EU IP standards. He then moved from selected topics of patent policy and on to issues relating to copyright before getting to his “favorite issue”: the perils of cumulative protection of works and other inventions. In short, the speech of Professor Sołtysiński was a tour de force of European IP perspectives. It led the way for a lively round of discussion which included questions and comments ranging from European patents on computer implemented inventions to Poland’s view on European patent jurisdiction.

As one may imagine, a few words on “The U.S. Perspective” appropriately followed “The European Perspective”. Professor Paul Goldstein, MIPLC Faculty Member and Professor at the Stanford Law School, was introduced by Professor Brauneis, who expressed his gratitude to Professor Straus for the five excellent years of cooperation.

Professor Goldstein began by narrowing the topic a bit to “The Political Economy of American Intellectual Property in the Twenty-First Century.”  Professor Goldstein attributed the important role of political economy in the future of American intellectual property law, in part,  to the relative instability of intellectual property rules. This instability, Professor Goldstein argued, is due to a number of factors: a lack (inexistence perhaps) of empirical guideposts, the fact that intellectual assets represent information, and the unprecedented growth of the Internet.

Professor Goldstein then pointed to “light posts at hand as we peer into the tumult of American intellectual property law’s longer future.”  These guiding principles, he suggested, are the lessons to be drawn from the American past as well as the lessons to be learned from across the Atlantic and Pacific. With regard to the American past, “cycles of high and low protection” may be called upon in order to shape American IP landscape of the future. Stepping outside the American framework, Professor Goldstein referred to several lessons which may be learned from both the European and Asian IP experience. Once again, a lively discussion, participated in by professors and students alike, followed this excellent presentation. 

After a pleasant lunch break, during which the invitees were able to catch up on a more intimate level, Professor Josef Drexl, MIPLC Faculty Member and incoming Chair of the Managing Board, gave a nice introduction to Dr. Francis Gurry, Director General of WIPO.

As Director General of WIPO, it was surely appropriate that Dr. Gurry’s speech dealt with, “The International Perspective”. Dr. Gurry began by announcing his desire to give a “provocative” talk in which he would try “to look a little bit into the future”. Dr. Gurry’s talk was neatly structured around five different topics: the knowledge model, the innovation model, the remuneration model, the administrative model and the diplomatic model.

With regard to the knowledge model, Dr. Gurry called attention to its four specific features: the increase in intangibles, global economic behaviour of enterprises, an environment of immediacy in communications and increasing societal technology dependence.

When discussing the innovation model, Dr. Gurry noted the general move away “from the 20th century model or vertical innovation . . . to a more horizontal method of innovation – or open innovation.”  He then mentioned the different connotations of the “open model”. If the open innovation model is used to describe “a set of practices of relations between enterprises”, this seemed to Dr. Gurry to be a rather traditional approach. If, however, the open innovation model describes an open source model or an open standards model, this represents newer sector specific ideas.

In connection with the remuneration model, Dr. Gurry made reference to the “need to address seriously the question of business models and of privacy protections . . . one of the key possible barriers to some business models in the new digital environment.” In this vein, Dr. Gurry mentioned the increased collectivization of the commercial exploitation of creative works and the increased use of flatrated or bundled access models.

Dr. Gurry then moved on to discuss the administrative model where “international systems are absolutely essential.”  With regard to patents in particular, two developments, “the internationalization of demand and the changing linguistic composition of the prior art,” require contemplation of intensified international cooperation.

Dr. Gurry finished up his thought-provoking remarks with a few words on the diplomatic model. He first made mention of the “paradox of globalization . . . the growing number of international questions but a growing resort, at the same time, to non-multilateral answers.”  He then specifically referred to the transition from the old “à la carte” system to the new architecture introduced by TRIPS and WIPO of “menu du jour”. Reference was also made to the WIPO Members States’ repeated blocking of the WIPO legislative agenda. In this regard, he has called upon the Member States “to look at ways in which they can address the blockages and perhaps to borrow in this respect from the WTO notion of a single undertaking to have a process to come up by September 2009 with a global accord for a work program at WIPO which would cover all fields that are currently under negotiation and which would provide a way forward in each of those fields.”  Dr. Gurry completed his talk by calling attention to the possible danger that “law and policy will not be the regulators of intellectual property in the future but rather technology and the market will be.” 

Professor Christoph Ann, MIPLC Faculty Member and Member of the Managing Board, had the honor of introducing the fourth and final speaker, Professor Joachim Bornkamm, Presiding Judge of the German Federal Supreme Court. Professor Joachim Bornkamm gave a “View from the Bench”.

The “red thread” of Judge Bornkamm’s presentation was the interplay between IP and Competition. He began with an overview of the justification for intellectual property rights in a free market economy. He then examined both Patent and Trademark Law in light of Competition Law.

With regard to Patent Law in particular, Judge Bornkamm spoke about the monopoly right and licensing in connection with a dominant market position. He demonstrated his ideas by referring to the Standard Spundfass decision of the German Federal Supreme Court. In connection with Trademark Law, Judge Bornkamm pointed to the Lotto decision as well as the Post decision as having definitive Competition Law aspects. Judge Bornkamm summerized his detailed presentation with the following message:  “Competition and intellectual property are not enemies fighting against each other for survival . . . they are rather partners . . . .” 

The presentations were followed by addresses from representatives of the respective MIPLC partners, members of the respective MIPLC Boards and a representative of the MIPLC Alumni Association.

Professor Frederick M. Lawrence, Dean of the George Washington University Law School, gave the first address. In his inspired address, Professor Lawrence paid tribute to the international spirit of MIPLC. In addition, he also emphasized three points, which he felt crucial to the success of an international endeavor such as MIPLC: the right model, the right leadership and a continuing commitment.

Professor Wilfried Bottke, President of the University of Augsburg, began his address by rightfully mentioning the courage and vision associated with the establishment of MIPLC five year ago. He called attention to the growing importance of international scientific cooperation in a globalized world.

Professor Liqiu Meng, Vice President of the Technische Universität München, highlighted the important role of each MIPLC partner institution in making MIPLC a success. She also made sure to highlight the integral role of Professor Straus in creating the collegial and cooperative atmosphere.

Professor Rüdiger Wolfrum, Former Vice President of the Max Planck Society for the Advancement of Science, outlined the uniqueness of MIPLC within the greater Max Planck Society. Although the MIPLC model may have been met with skepticism in the planning stages by some, its various successes, ranging from the LL.M. Program to Collaborative Research Projects, have demonstrated that “excellent fundamental scientific research may be combined with teaching and that fundamental research does not exclude engaging in research having an eminent practical background.”

Dr. Bertram Huber, Professor Vincenzo Di Cataldo and Professor Ralf Reichwald respectively representing the MIPLC Board of Trustees, the MIPLC Scientific Advisory Board and the MIPLC Fachbeirat also addressed the guests with words of praise for the success of MIPLC as well as for the crucial efforts of Professor Straus.

Last, but certainly not least, Ms. Anna Bacchin, Founding President of the MIPLC Alumni Vereinigung e.V., spoke about the creation of the MIPLC Alumni Vereinigung. Ms. Bacchin drew attention to two ideas in particular:  the building and maintenance of a powerful network between the graduates and MIPLC as well as a sense of affiliation and identification with MIPLC throughout the world.

After having been presented with gifts from the partners and the Alumni Association, Professor Straus then brought the 5th Anniversary Symposium to a close by wishing the MIPLC Managing Board the best of luck in its future endeavors.