Report from 2018 Annual Meeting of the European Policy for Intellectual Property Association

The Annual Conference of the European Policy for Intellectual Property Association always brings together leading IP scholars and this year was no exception. Kat friend N Cansin Karga Giritli from Glasgow University was kind enough to provide the following summary of this noteworthy event.

The Annual Conference of the European Policy for Intellectual Property Association, “IP in Data-Driven Economies: New Challenges for Law, Economics and Social Sciences”, took place in Berlin between September 5th-7th, Against this backdrop, plenary session topics ranged from IP and international trade to industrial espionage activities of (the then) East Germany, while various parallel sessions dealt with subjects such as big data, standard essential patents (SEP), economic models for IP rights and IP in a digital world.

The first day of the Conference began with a half-day PhD workshop focusing on legal research methods. In general, all the contributors highlighted the paramount role of a clear and pre-set methodology in legal research and illustrated with examples that unconventional methods can yield concrete research findings.

Particularly thought-provoking was Georg von Graevenitz’s (more details here) presentation on the use of empirical research methods (more specifically data analysis) in IP, with special reference to Petra Moser’s research (research video link here) on how copyright improved Italian opera. The main message of the workshop was that interdisciplinary and empirical IP research are not the exceptions to the rule anymore and has great potential for guiding IP policy.

The first plenary session, “Perspectives on IP strategy in a Dynamic World”, considered from legal, economic and managerial perspectives the transformation of regulation, policy and the marketplace as they adopt to rapidly changing conditions in the technological environment. It was particularly interesting to hear the thoughts of David Kappos (more details here) about the ‘patentable subject matter’ approach in the United States. He discussed this issue in relation to the difficulties of bringing to bear financial sources for risky R&D activities. He argued that the ‘abstract idea test’ devised in the Alice case has created uncertainty in the US patent system and has done harm to R&D, given that investors’ main concern is the return of their investment.

The first plenary session of the second day, chaired by Axel Metzger (more details here), dealt with the issue of “IP in data-driven economies”. Herbert Zech (more details here) kicked off the session by addressing the definition of data, different business models for data trade, primary and secondary data markets and the European legal framework with respect to data. One interesting piece of information was that patent protection on the method of data collection can be extended to data in Germany, despite the European Patent Convention Article 52(2).

Next up, Niva Elkin-Koren (more details here) posed the question, ‘Why didn’t the data economy (i.e. data-driven innovation) improve in the EU?’ and analysed the reasons for the lack of incentive for sharing data in Europe. The key idea of her speech was that the development of mechanisms to access data should be the European Union’s (EU) main concern for enhancing data economy.

Aija Leiponen (more details here) then considered the factors affecting the value of data (e.g. metadata and provenance) and compared different legal and technical mechanisms (e.g. secrecy, contracts, and verification technologies) in terms of maximising this value. She highlighted that analysing data means creating value and one should be able to control data to maximise it. After listening to all the presentations, this blogger started to think whether it is still possible to dogmatically accept the traditional, innovation-fostering role of IP, considering the unique features of the data ecosystem?

The first parallel session included a panel that discussed the topic of “Towards a market model for big data”. First, N Cansin Karga Giritli focused on the legal tools protecting and facilitating access to data in the EU as well as the issue of how the EU can empower the utilisation of data (also considering the recent EC Communication “Towards a common European data space”, link). Inge Graef (more details here) then considered the EU’s dualist approach to the regulation of personal and non-personal data.

The final speaker of the session, Ingrid Schneider (more details here), highlighted the importance of data governance from a political perspective. This blogger believes the issue of whether the EU’s approach to regulating personal data (by the General Data Protection Regulation) and non-personal data (by the proposed Regulation on a framework for the Free Flow of Non-Personal Data in the European Union, link) separately is feasible, will be one of the discussion topics of the IP community in the upcoming days.

Another parallel session was devoted to "Standard-essential patents: Empirical studies I". In this the session, Maddalena Agnoli (more details here) discussed the patent acquisition strategies of companies before joining standard setting organisations (SSO) and illustrated this with empirical evidence showing that companies tend to enlarge their patent portfolio before joining SSOs. Dietmar Harhoff (more details here) presented the project, which aims to provide an automated system that can assess the essentiality of patents. The blogger was really impressed by the project, which has the potential of revolutionising the operation of SSOs and eliminate (or at least minimise) several problems in the standardisation environment.

On the second day, a most intriguing presentation was given by Albrecht Glitz (more details here). He discussed industrial espionage and its impact on East Germany’s productivity. Glitz shared the results of research, which revealed that even though East Germany could not reach the productivity level of West Germany, its espionage activities provided support in their competition with West Germany in certain industries. Glitz referred to some interesting facts regarding informant recruitment and information transfer methods. He mentioned that it was possible to conduct this research thanks to East German officers, who forgot to destroy the back-up espionage database during the merger of East and West Germany (slides link).

The last plenary session dealt with “IP and international trade”, chaired by Keith Maskus. The speakers were Pippa Hall (more details here), Benjamin Mitra-Kahn (more details here), Margaret Kyle (more details here) and Jayashree Watal (more details here). In the aggregate they focused on the impact of IP on trade and innovation, the incentives for including IP chapters in trade agreements, how those chapters are being negotiated and the impact of trade agreements on innovation. Two significant points highlighted during the session were the lack of empirical evidence illustrating the impact of IP provisions in trade agreements on innovation and whether this kind of empirical evidence can guide policy makers efficiently.

Picture on lower left by and courtesy of Bettina Ausserhofer