Book Review: Intellectual Property as a Complex Adaptive System

This Kat is delighted to review “Intellectual Property as a Complex Adaptive System” (eds. Anselm Kamperman Sanders and Anke Moerland, 2021), the latest publication within EIPIN series of Edward Elgar.

The book opens with Anselm Kamperman Sanders and Anke Moerland advancing their vision as to why intellectual property (IP) must be regarded as a complex adaptive system (CAS). In the definition of John H. Holland, CAS are “systems that have a large numbers of components, often called agents, that interact and adapt or learn”. After introducing the reader to the theory of CAS, the authors explain how treating IP as a mere legal title is reductionist and fails to address all aspects of its complexity. As an example of such complexity, Kamperman Sanders and Moerland look at the role of IP in the “Valley of Death” - the phase between research and commercialisation of a product.

David A. Harper continues with the topic of IP as complex phenomena in Chapter 2. Harper focuses on the evolution of IP structures due to their interaction with entrepreneurship. Applying the capital-theoretic analysis to IP, Harper suggests treating IP rights as capital and IP regimes as capital structures. The analysis is complemented by a case study of the MPEG-2 patent pool, as well as by suggestions for further avenues in economic research of IP.

Cristof Augenstein follows with Chapter 3, where he discusses patent enforcement in Europe. Augenstein analyses legal and regulatory framework, with a focus on Germany and recent developments such as Trade Secrets Directive and Unified Patent Court.

In Chapter 4, Beatriz Conde Gallego debates whether owners of standard-essential patents (SEPs) must grant licences in “license to all” or “access to all” approaches. While Conde Gallego argues in favour of “license to all”, the issue will have to be resolved by the CJEU, especially in light of the extensive SEP-related litigation in the automotive sector.

Marco D’Ostuni addresses the interplay between a growing number of patents and competition law in Chapter 5. Looking into recent EU cases on patent ambush, patent thickets and SEPs, D’Ostuni discusses how proliferation of patents and their complexity defies traditional antitrust principles.

Chapter 6, authored by Ryan Abbott, ponders whether current patentability criteria may fit AI-generated inventions. In his chapter, Abbott argues that the “person skilled in the art” standard has to evolve to “inventive machine standard”, as machines are augmenting the inventive capabilities of researchers.

In Chapter 7, Andrea Zappalaglio sketches out the nature of EU geographical indications (GI) law. Zappalaglio’s contribution covers the history of EU sui generis regime (including its roots in national systems of EU Member States), the bureaucratic procedures to register a GI, as the concept of origin in EU GI law.

Giuseppe Mazziotti examines, in Chapter 8, the solutions to online music licensing, adopted by the EU. Online music platforms, such as on-demand content services or social media platforms, created disparities in the remuneration of right-holders, creating the so-called “value gap”. The EU intervened with Directive 2014/26/EU and Directive (EU) 2019/790. Yet, argues Mazziotti, some issues remain unresolved, such as the market power of online gatekeepers.

The book closes with Chapter 9, written by Rochelle Cooper Dreyfuss. Cooper Dreyfuss analyses, to which extent the investor-state dispute settlement (ISDS) contributes to “making” IP law. After discussing most prominent ISDS cases on IP [some of them have also been covered by The IPKat here], the author suggests improvements for the newer ISDS agreements.

All in all, “Intellectual Property as a Complex Adaptive System” will serve as a useful source for seasoned researchers and practitioners alike, who are interested in an interdisciplinary approach to IP.

Publisher: Edward Elgar

ISBN: 978 1 80037 837 7

Hardback price: £81.00

Extent: 232 pp.