N. Ayse Odman Boztosun is Associate Professor of Law at Erciyes University Law Faculty, Kayseri, Turkey. She holds two master degrees from Oxford University where she has successfully submitted a thesis on the analysis of the competition law provisions in TRIPs. Her PhD thesis was on the mutual role of IPRs and competition law in fostering innovation and she has recently published a book on the Turkish plant variety protection regime. Asc. Prof. Boztosun is a Research Affiliate of IP Osgoode.
In my most recent article accepted for publication in the Journal of World Intellectual Property, I raise a novel argument based on well-known facts, asserting that utility model protection may be creatively used as a model in order to achieve sustainable innovation.
I set off with the premise that intellectual property rights, exclusive in nature, would bear actual value for the rightholder only in a capitalist economy, i.e. within an economy based on the market principle. After all, what benefit could a patent confer were there no markets in which to exploit the patented invention? The prospect of exploitation, i.e. the ability of the rightholder to prevent others from using the invention without his permission in the markets is expected to spur innovative activity and convince inventors to disclose their inventions to the public. The other side of the coin is that in the absence of such rights, the innovation process would be hampered. Appropriation in the form of exclusive use, licensing, assignment or transfer can not be possible if there are no rights protecting innovations. The newly-emerging markets for technology reinforce the argument that innovations may not be properly exploited without legal protection. In that respect, compensatory liability rules regulating freedom to use others’ innovations freely while having to pay for that use would not meet the demand of the markets as a clearly-defined right would.
My second premise is that the existing patent system, the predominant system in the world for protecting inventions is flawed by serious handicaps: The condition of non-obviousness for patentability is severely criticised as being subjective and ill-defined, the fixed term of protection is regarded as either too long or too short depending on the industrial sector in which the invention is made and even the mere acceptance of “invention” as protectable subject matter gives rise to a number of thorny problems.
The non-revised version of the article is posted on the following website: http://works.bepress.com/ayse_odman_boztosun/1/