Workshop 1 – Abstracts


Industrial ‘Property’, Law and Inventorship in Greece, 1900-1940

Stathis Arapostathis, University of Athens

The paper focuses on the co-construction of industrial ‘property’ law and the culture of invention in Greece the years from 1900 to 1940. It traces the legislatives changes for the first half of the 20th century focusing on the early legislative changes in Greece as they occurred most prominently from the first patent law of 1920 to WWII. In the paper I unravel the political and industrial context that provided the setting of the emergence of the first patent law. I focus on the performance and role of engineering figures as key actors in framing the intellectual ‘property’ as privilege provided to the inventors and in pressing towards new legislation. The research questions that the paper aims to address and answer are: What was the social and political context of the introduction of the first patent law in Greece? What was the impact of the transnational legislative setting in constructing a culture of propertization of knowledge and more particularly in techno-science in Greece?  What challenges and uncertainties created the new legislative context? How the propertization of techno-scientific culture co-constructed with legislative measures or the public discourses react to pressures for new IP laws and homogenization with central European developments. The paper argues that during the period of the study there was continuous pressures toward the delineation of Greece with European IP developments that under various conditions and different contexts were linked with the rhetoric of national ‘progress’ and ‘growth’.  A process of appropriation occurred in the making of IP laws and the shaping of inventorship in Greece, influenced by social, economic and ideological changes that occurred the years covered by the paper. The research is based mainly on published archival material most importantly on technical and legal journals, public press, and legal books of the period.


The Impact of Social, Cultural, & Economic Factors on the Development of Patent Policies: does economic growth alone drive international harmonization?

Stefano Barazza, Lawyer & Journal of IP law & practice

Diversity in patent cultures is the result of the interaction of social, cultural and economic factors, which strongly influence the balance between the rights and interests of inventors, competitors, citizens, and of society as a whole. Researchers observed that economic reasons frequently prevail on the other factors, hindering or aiding the development of patent policies in light, inter alia, of the strength of the local industry and of the pressure of global capitalism. This paper aims to understand whether the international harmonization of patent law merely depends on economic growth.
The interplay of the above-mentioned factors is particularly apparent and significant in relation to the patenting of medicines. If “fear of foreign dominance” (J. Kuanpoth, Patent Rights in Pharmaceuticals in Developing Countries, p. 100) constituted the strong economic inventive that prompted several European countries to restrict the patentability of medicines in the second half of the 20th century, the reasons of the diffidence exhibited by many developing countries towards pharmaceutical patents appear to be more complex. They include, for example, the protection of fundamental rights, including the right to health, the idea of public participation in the benefits of scientific progress, the concept of individual property of goods of great social importance, the objective of increasing social cohesion and reducing disparity.
Relying on the findings of a historical and comparative enquiry into the patenting of medicines, this paper suggests that social awareness of the role and effects of patent protection is a primary factor in the development of patent policies. Although social, cultural and economic factors are inextricably interwoven, international harmonization cannot succeed unless it takes into account how different societies approach, define and interpret innovation.


Patents and Innovation in Late Industrialization: the Case of Mexico
Edward (Ted) Beatty, University of Notre Dame

Modern patent systems emerged in a world that was divided between technology exporters in the North Atlantic and everyone else—largely technology importers.  The patent systems adopted through the nineteenth century by countries outside the small group of early industrializers in the North Atlantic exhibited significant diversity.  Although there have been two large waves of patent system reform over the last century, coinciding with the late nineteenth and late twentieth century periods of globalization, we do not yet have a clear understanding either of diversity or convergence among patent systems and patenting practices.
One of the ways that scholars have classified patent systems is between those that confer relatively strong, unregulated property rights to original inventors, and those that limit or regulate inventors’ rights and provide space for others to use or appropriate inventors’ ideas.  “Strong” patent systems are seen as enhancing incentives for invention, while relatively “weak” patent systems are seen as enhancing possibilities for adoption and diffusion.  We might assume that technology producing nations in the North Atlantic might favor the former, while the technology importing nations in the rest of the world might favor the latter.  Indeed, the wave of national system reforms following the Paris Convention of 1883 and the Uruguay Round of GATT in the 1980s derived from pressures on relatively late industrializers to more closely conform to North Atlantic models.
Patent records provide one way to examine the ways in which patent systems shaped how relatively late industrializing nations could respond to the challenges and opportunities presented by technology exporters.  This paper uses Mexican patent records 1880-1920 to examine whether imported technologies stimulated local efforts to imitate or modify foreign advances, and the ways in which the patent system facilitated or constrained local abilities to adopt and utilize the new knowledge represented by technology imports.  These nineteenth century patterns help us evaluate the late twentieth century debates concerning relatively strong or relatively weak patent systems.


Blanco:  Patent Laws in Twentieth-Century Britain and beyond
Jose Bellido, University of Kent

Thomas Anthony Blanco-White’s oeuvre is a paradigmatic example of the historicity of patent law and the local settings from which legal knowledge emerges. It also captures how local networks expanded beyond the typical places from which British patent law had tended to circulate in the nineteenth century (Middle Temple, Chancery Lane). Written in post-war Britain, his books not only provided a basis for a discipline (intellectual property) in the making, their timely design also helped to connect and, more importantly, “constitute” an audience comprised of articled clerks, practitioners and students. It is possible to trace how these books moved beyond the Temple and began to circulate around university settings (e.g. polytechnics) and former colonies (e.g. India). As such, these books were embedded in a particular economy of factors that conditioned their writing and publication. They had to be both authoritative and flexible. They had to simultaneously give a definitive account of the law and a version open to further legislative modifications. In so doing, their form evolved from and within particular protocols of writing about the subject (patent law) in an accessible manner. This paper shows some sketches of the making of his famous pocketbooks and the way Blanco wrote and re-wrote them successively in an iterative process towards the publication of what would become a standard textbook writing technique in British intellectual property in the late twentieth century (e.g. Cornish). A closer look into these writing techniques also reveals how Blanco was nevertheless innovative in writing and updating a book about innovations. In explaining these techniques and what made them remarkable, the paper attempts to show the particular way in which knowledge and writing about intellectual property emerged in the twentieth century. The different editions of his major work (Patents for Inventions, Stevens & Sons, 1950) precisely show the emergence of this perspective: a type of writing always trying to capture patent laws and compare them as soon as they were released – a comparative vision that culminated, almost three decades later, with the publication of the Encyclopaedia of UK and European Patent Law (Sweet & Maxwell, 1977).


Science Applied in Aid of Nature”: The First Pearl Patent and Japan’s Culture of Zoological Invention, 1896-1921
Kjell Ericson, Princeton University

During the early twentieth century, “culture pearls” produced along Japan’s shorelines became ubiquitous items of adornment in Europe, the United States, and elsewhere in the world. What might be less apparent is that the production of these objects was part and parcel of legal and technological transformations in how animals, in this case marine animals, could be used and owned.
This presentation follows the active life of the world’s first modern pearl cultivation patent, its owner, and its critics during the early years of Japan’s involvement with international industrial property agreements. In 1896, Mikimoto Kōkichi received Japanese patent no. 2670 for a method to induce the formation of semi-spherical pearls inside living saltwater shellfish. Mikimoto’s method proved to be one of the most widely contested patents in early twentieth century Japan. A series of trials pitted Mikimoto against several other budding Japanese pearl cultivators. Mikimoto claimed that his competitors had infringed upon patent no. 2670. His competitors countered that the techniques covered by the patent had long been practiced elsewhere in the world and, crucially, that knowledge of prior pearl cultivation efforts had been publicly available within the Japanese empire prior to Mikimoto’s initial patent application. The craft of pearl cultivation, the chronology for the transnational dissemination of publications that purported to explain its methods, and zoological understandings of molluscan physiology all became key areas of contention.
Patent no. 2670 inspired debate over a question that would continue to animate Japanese pearl cultivators, as well as participants in other biotechnical ventures: under what conditions was it possible for someone to claim sole ownership over manipulations that approximated, or were even indistinguishable from, processes observed in living creatures? The ramifications of Japanese legal debate over this pearl patent and its many successors, I argue,  extended to the patentability of other animal-related techniques.


The promotion of different innovative business cultures by an early Latin American patent system. The experience of Chile between 1840s-1900s
Bernardita Escobar Andrae, Universidad Diego Portales

Chile stands out as a country establishing one of the earliest patent systems in Latin America, with a patent Law dating from 1840 that was subject to few changes until 1930s. Despite a long tradition, little is known about the history and features of use and users of the early Chilean patent system. At the time, the system had a laxed ‘novelty requirement’ as it allowed lack of use in Chile. The ability to protect a wide variety of ‘innovations’ from a Chilean standpoint, meant that the system provided incentives to adopt foreign technologies as well as to develop new technologies endogenously. Therefore, the system incentivised the emergence of two different innovative business cultures in parallel: the ‘copy and adopt’ culture and the ‘creative’ one. This paper aims to establish which of the two cultures became more prominent and successful at using the system during the 1877-1908 period. To do so, the paper makes an effort to identify the type of patents or ‘privileges’ protected by the system in two categories: adoption v/s creative. The analysis focuses in tracking the evolution of patent application and patent grants, in identifying economic sectors of patented subject matter and main features of applicants and grantees for both adoption & creative patents. To do so, the paper relies on a dataset built from entries in the official gazette (which began in March 1877) of privileges’ applications, oppositions and grants.


The 1883 convention and the impossible unification of industrial property
Gabriel Galvez-Behar, Université Lille

Symbol of a global policy, the TRIPS agreement is often considered as a way to impose a Western intellectual property regime and, thus, as a form of neocolonialism. Some critical analysis of the Western intellectual property invite us to historicize its development and refuse therefore to consider the TRIPS agreement as the inevitable outcome of a teleological process.
Characterized by an early international regulation – with the creation of the 1883 Paris Convention on patents and trademarks, and with the 1886 Berne Convention on copyright – the history of intellectual property gives rise, it is true, to such a finalist perspective. For some, insofar as they were concluded when the Western countries shared Africa and the world, these treaties symbolize the first step of an imperial vision of intellectual property. The parallel is tempting : the late 19th century conventions would be to imperialism what the TRIPS agreement is to neo-colonialism.
However, concerning the industrial property, this analogy is problematic and threatens to revive the teleological perspective which is denounced. To what extent, in fact, did the 1883 convention constitute a form of imperialism ? How were the territories under the domination of Western countries embedded in the development of industrial property in the 19th century and the early 20th century ? Our paper has no other purpose than to offer some considerations about the patent right relating with these questions.
First, we will consider the issue of international but also sub-national diversity : culture can not be only considered from a national point of view and even in industrialized countries traditional knowledge, for example, was excluded from the field of patentability. Then we will focus on the emergence of the Paris convention, which constituted, at the same time, a French attempt to homogenize the international patent practices and a way to close the patent controversy. At last, our paper will deal with the integration of colonies in the Paris Union, which occurred in the Interwar period and especially with the Hague Conference (1925), which will be analyzed more specifically.


Ungrateful mechanics and Erfindungsautomaten: Patent reform and the value of scientific judgment in Central and Eastern Europe
Karl Hall, Central European University

By the eve of the Great War, jurists, politicians, businessmen, engineers, and scientists alike had come to embrace patent law as a tool for fostering invention and industrial development, with the rigorous examination procedures of the German Imperial Patent Office setting the standard. The success of international trade and copyright agreements (Paris 1883, Berne 1886/1914) in reconciling various national systems did not dispel continued dissatisfaction with both principled and pragmatic aspects of patenting: principled in terms of the individual vs. collective aims of the newly-commodified forms of intellectual property, as well as the untenable distinction between invention and discovery; pragmatic in terms of growing social tensions between juridical and technical expertise, amid dramatic changes in the organization of industrial research. The outbreak of hostilities destabilized intellectual property regimes and prompted further reform efforts, first in Hungary in 1916, then in anticipation of the nascent Polish state. In the most dramatic case the Bolsheviks abolished the Russian patent system altogether in 1919, but then relented and introduced a modern statute in 1924. The failed League of Nations debate about scientific property found echoes in all these states, though this did little to resolve the broader structural problem of how to deploy experts efficiently and “to control the damaging disconnection and specialization that techno-scientific life today has acquired.” By recovering the context of industrial, patent-oriented research, we can begin to grasp what patent lawyers have to teach us about how the “artisan, handwork character of science” persisted in the twentieth century, long after the heroic age of the solitary inventor had passed.


Independent invention in Italy during the Liberal Age, 1861-1913
Alessandro Nuvolari (Sant’Anna School of Advanced Studies, Pisa) & Michelangelo Vasta (University of Siena)

In this paper we examine the phenomenon of independent invention in Italy during the liberal age (1861-1913).We make use of a new dataset comprising all patents granted in Italy in five benchmark years: 1864-65, 1881, 1891,
1902 and 1911. We carry out the following exercises. First we examine the relative shares of independent, corporate and foreign inventions and their evolution over time and across industries. Second, by exploiting the peculiarities of Italian patent legislation which established a maximum patent length of fifteen years and a flexible renewal scheme which allowed inventors to maintain a patent “alive” for almost any specific duration, we assess the relative quality of independent and corporate patents. Our results indicate that in Italy independent inventors provided an important contribution to technological change but the quality of their patents was significantly lower than that of  firms and of foreign patentees.
Finally we compare our results with those of Tom Nicholas for the British case (Nicholas, T. (2011), ‘Independent invention during the rise of the corporate economy in Britain and Japan’, Economic History Review, vol. 64, 995-1023).  In the British case, Nicholas finds that a significant share of the innovations patented by independent inventors were of relatively high quality, whereas in Italy independent inventors’ patents were clustered on the low quality segment of the innovation quality distribution. In our interpretation, these contrasting patterns are an outcome of the weaknesses of the intermediaries in the market of technologies (patent agents and related institutions) that were prevailing in the Italian case.


Temporalities and Localities of the industrial property rights: The Spanish Patent System since 1929 to 1986
Ana Romero de Pablos, Centro de Ciencias Humanas y Sociale

From 1929 the Spanish Estatuto de Propiedad Industrial worked as patent regulation. Lasting almost 60 years, it regulated inventions, mostly machines and procedures so as to recognize property rights to inventors and designers. The first article of the chapter covering patents in the by-laws of 1931 describes, in a similar way to the law of other countries, the definition and function of patents. However, the Spanish patent law made a distinction between an invention patent and an introduction patent. This introduction patent conferred the right to manufacture, use, produce and sell what was manufactured in the country, but it did not prevent others from introducing similar objects from abroad. By this regulation the protection laws incorporated the particularities of Spain as a virgin market in which to introduce new products from abroad, on the one hand, and regulated –and indeed recognized by law- the supposed backwardness of the Spanish industrial system.
It was in force until 1989 when both democracy and EU membership of Spain introduced modification in regulating property rights, by incorporating both the agreement of Munich 1973 and the agreement of Luxemburg 1975 and thus the Spanish Patent Law followed the European Law.
I will analyze those changes and its embeddedness in the political, industrial and scientific regimes by presenting the regulation of antibiotics in the 1940s and that of a polymerase in the 1980s so as to draw a trajectory of property rights regulation in Spain during the second half of the 20th century, from incorporation of antibiotics manufacturing procedures in the late 1940s to the invention of a polymerase reaction in the 1980s.


Patent Policy in India under British Raj: A Sweet and Sour Story
Rajesh Sagar, Marks & Clerk Solicitors

Indian patent law is one of the oldest in the world amongst those of developing countries. It was enacted in the year 1856 under the British colonial rule, and has been in operation and constant evolution since then. At that time, many developed countries of today such as the UK used patent laws as policy levers to strengthen their technological status by encouraging importation and diffusion of technologies. Despite Indian patent law being contemporary to that of the many developed countries of that time, India was far behind technologically in comparison to those countries by the time of her independence from Britain in year 1947. This paper attempts to examine this issue by focussing on the role of pre-independence Indian patent policy and policy making in encouraging importation and diffusion of technologies in British India. It analyses the legislative debates and the enacted patent laws for the period under consideration to highlight how the constrained political and legislative freedom of the Government of India had an adverse effect on choosing a patent policy conducive to India’s national interest at the time. The paper also focuses on the experience of inventors in obtaining, protecting and enforcing patent rights in British India to highlight the various inadequacies within the legislative scheme. The paper particularly outlines the experience of patentee Messrs Thomson & Mylne, whose efforts led to the first large scale commercialisation of an Indian patent.


International patent management and the diffusion of the four-stroke engine
Patricio Sáiz (Universidad Autónoma de Madrid) and Rubén Amengual (Universidad Politécnica de Madrid)

When the German Nicolaus August Otto built the first four-stroke engine in Cologne, opening the technological trajectory of the internal combustion motor, several firms were created to commercialize the new invention. In doing so, patents were perceived as a key tool to secure such intangible assets just at the dawn of the second industrial revolution, when international IPR agreements were also being developed. In this paper, we analyze patent activity driven by Otto and his firms in order to find out how domestic and international IPRs were managed and what patent strategies, institutional constraints, and business results were respectively followed, faced, and obtained. For that purpose, we carefully scrutinize Otto’s petrol engine patents and their ups and downs in certain pioneer, first follower, and lagging countries such as the United Kingdom, France, Germany, the United States, and Spain. Our findings demonstrate that legal and institutional differences –such as the existence of previous patent exams, compulsory working clauses, or patents of introduction- influenced, first, upon disclosed technological information level and scope; second, on firms patent management strategies and learning; and third, on technological diffusion patterns and, thus, on pioneer firm returns.


The India twist to patent culture: Investigating its history
Tania Sebastian, Gujarat National Law University
 
India’s progression from product patent to product and process patent, and the interim mailbox application litigation has long since transpired. India has, from its shy beginnings in inculcating the patent regime, now, earned its place as the brand-ambassador for a flourishing compulsory licensing regime. From mounting criticism linked to the very inception of the Intellectual Property Appellate Board, to radical reforms, the patent culture in the Indian milieu has seen a near revolutionary entourage of decisions.
The most profound of the decisions relates to the challenge by Natco Pharma Limited, a Hyderabad based pharma company, essentially a generic drug-maker, to manufacture and produce Nexavar, a patented cancer drug of multi-national pharma major, Bayer Corporation, after the voluntary application by Natco was turned down. This decision of early 2013, though thoroughly reviewed, analyzed, criticized, to the extent of over-emphasization on the judgment delivery (being on the last day of office held by the then Controller General) as the major indication of the compulsory licensing friendly order, continues to have amplified implications. Looked upon as the lone crusader for countries (under the banner of ‘developing’) aiming at a people-first intellectual property regime, debates erupted across continents on the correctness of the statutory interpretation and implementation of compulsory licensing. Understanding these debates is rudimentary towards the analysis of India’s patent culture. Ancillary issues include reasoning the implementation of the patent regime from 1970 and subsequent amendments, most significantly in 2005, as closely linked with heighted litigation and awareness among the stakeholders, essentially the people-first organizations to advocate a regime against profiteering.
Issues desirable to be addressed are centric towards the key difference in patent regime on the basis of implementation of the compulsory licensing regime in consonance with the ‘community standards,’ more so as forced interpretation of accepted notions and standards for issuance of compulsory license in the USA are best termed as unwarranted.


Advertisements