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Introduction: the basic paradigms and constitutional framework of intellectual property law1

1. Foreword. The Mosaic and the Fabric1

2. From Paris and Berne to Marrakech: IP's Basic Paradigms2

Ⅰ. The classic dualism between patents and copyright,and its evolution2

Ⅱ. The (expanded) protection of trademarks4

3. The Firm as the Central Reference of IP Law5

4. Rationale of that Centrality8

5. The Dialectic with Social Interests Involved in the Overall Constitutional Framework9

6. Intellectual Property and Antitrust: Distinct Rules11

7. But Nonetheless Dialectally Intertwined13

8. The Guiding Principles17

9. Current Protectionist Trends19

10. Specific Examples20

11. Signs of an About-turn ...23

12. Keep a Tight Hold on the Helm28

Bibliographical Notes30

Patent protection of innovations: a monopoly with pro-competitive antibodies33

1. The Dialectic Physiognomy of Patents33

Part Ⅰ The area of patentability: the often arduous distinction between basic and applied research37

2. The Privatisation of the Fruits of (Applied) Research37

3. Again on the Delimitation of Patentability to Applied Research:Its Rationale: Epistemological Considerations...40

4 ...And Economic Considerations43

5. The (Fragile) Boundary between 'Basic' and 'Applied'Research: So-called Targeted Research45

6. Interpretative Adjustments47

Part Ⅱ Striking a balance between exclusive protection and competitive dynamics of innovation50

7. General Outline (Conditions and Limits of Exclusivity),Commencing from the Time Limits to Protection50

8. The 'Exclusivity for Knowledge' Trade-off and its Effects53

9. The Systemic Corollary: No Upgrading of Secrets to IP Protection: A Warning from an Italian 'Reform'56

10. Qualifying Access to Patents: From 'Indulgence' ...59

11 To a Hoped-for Increased Strictness - Beginning from Patent Offices61

12. A Corollary on 'Inventiveness' in Utility Models: No to a Double Standard64

13. Strict Proportion of the Scope of Exclusivity to What has been Effectively 'Found' (Inventum): Principle and Corollary66

14. Patents and Innovation Dynamics: Foreword on Subsequent Innovation69

15. Subsequent/Substitutive Innovation: Qualification Criteria69

16. Derivative/Dependent Innovation: A Virtuous Regime of 'Non Voluntary' Cross-licences71

17. Patents in the Distribution Chain: The Principle of Exhaustion77

Part Ⅲ Conclusions, and some proposals80

18. Preserving the Competitive Dynamics of Innovation80

19. Some Corollaries, with Regard to Compulsory Licensing82

20. Further Pro-competitive Corrections86

21. Some Proposals for Extending Patent Protection87

22. Finale: An Overall Rethink of the System - Should Winner Take All?89

Bibliographical Notes92

From art to technology: the expansion of copyright98

Part Ⅰ Copyright v. Patent. Comparing rules and rationales98

1. The Classical Model of Copyright: Historical Overview and Subject Matter98

2. The Constitutional Basis and Essential Structure of Copyright102

3. The Subject Matter of Protection: Expression, Not Ideas103

4. Key Features of Copyright (and Differences Compared to Patents)104

5. Plurality and Independence of the Exclusive Economic Faculties Granted by Copyright Law: The Power to Bar the Publication of Derivative Works (Including Translations)108

6. Copyright and Third Parties' Access: The Debatable Approach of Directive 2001/29: 'Free/Fair Uses' as Discretionary 'Exceptions': on the Limits of Admissibility of Technological Protection Measures (TPM)110

7. Circulation: Attenuated Exhaustion118

8. Neighbouring Rights119

9. The Articulated Rationale of Copyright122

Part Ⅱ 'Technology copyright': the rationale of a 'trespass', and the related risks for the development of subsequent innovation and competition124

10. Foreword on the Contemporary Features of Technology Copyright124

Ⅰ THE CONVERGENCE BETWEEN FUNCTION AND AESTHETICS: FROM APPLIED ART TO INDUSTRIAL DESIGN126

11. The Terms of the Question from an International Perspective.Or the Ambiguities of the EC Regulation126

12. Playing Fields Distinction, Not Mere Cumulation, i.e., Amassing of Legal Protections127

Ⅱ COPYRIGHT AND INFORMATION TECHNOLOGY130

13. Origins and Scope of Copyright Protection for Computer Programs130

14. The Protection of Databases134

Ⅲ AN EFFECT-ORIENTED ASSESSMENT OF TECHNOLOGY COPYRIGHT136

15. The Substantive Reasons: 'No Cost, No Test, No Access'136

16. Has the Classic Model been Superseded in the Contemporary Context of Innovation?136

17. Specific Reference to Network Industries and Conclusion138

Part Ⅲ Copyright and the diffusion of culture and information through the new communication technologies140

18. The Risk of Cultural Exclusion140

19. Remuneration of Creative Work and Related Investments:New Content Distribution Models142

20 Cultural Pluralism at Risk?144

Bibliographical Notes146

The distinguishing function and advertising value of the trademark: aspects and critique of the European reform156

Part Ⅰ The classic system (before the reform)156

1. The Fundamental Distinguishing Function of Trademarks156

2. The Classic Paradigm Based on Protection of the Distinguishing Function158

3. The Pro-competitive Role of Protecting the Distinguishing Function160

4. Some Critical Aspects of Trademark Protection from a Competition Standpoint161

Shape marks (three-dimensional marks)161

5. Limitations to the Principle of Exhaustion at European Community Level174

6. Beyond the Distinctive Function: Protection of the Trademarks' Suggestive Value ('Selling Power')177

Part Ⅱ The reform: The business interests protected181

7. The Cornerstones of the Reform181

8. The Expanded Protection of Trademarks with 'Reputation'182

9. Greater Protection also in Similar Sectors?184

10. Expanded Protection of 'Renown' to De Facto Trademarks?185

11. Conclusion: The Systemic Meaning of the Special Protection of Renowned Trademarks187

12. A Further Aspect of the Reform with Competition Implications: Revocation for Becoming Generic188

13. Whom Does the Reform Benefit?188

Part Ⅲ The reform, and the risks of consumer deception191

14. Fragmented Identity, and Informative Compensation191

15. Qualitative Compensation?193

Part Ⅳ Weighing up the reform196

16. The Effects on Competition and the Market196

17. Prices and Propensity to Innovate197

18. Possible Repercussions on Denominations of Origin199

19. Normative Room and Interpretative Tools to Balance out the Protectionist Effects of the Reform201

Ⅰ. From inside trademark law201

Ⅱ. From the 'outside'204

Bibliographical Notes204

5 Intellectual property and regulation(s) of competition209

l. Foreword209

Part Ⅰ Intellectual property and antitrust213

2. The Earlier Perspective: Checking the Contractual Exercise of IPRs213

3. Phase Two: Storming the Sanctuary Commencing from Telecommunications Standards216

4. The Door is Open - But Not Wide Open; from Magill to Microsoft218

5. Does the Exercise of IPRs Confer Market Power? Checking Each Basic Paradigm221

6. Intermezzo: In Search of the Historical Roots of the European Approach227

7. The Technological and Economic Rationale of the European Approach229

8. Further Points and a Note about the Effects on the Dynamics of Innovation232

Part Ⅱ Intellectual property and unfair competition235

9. The Corporatist Origins of the Law235

10. A Fresh Breeze from across the Channel237

11. The 'New' Relationship with IPRs238

12. Unfair Competition, Antitrust, 'Unfair Commercial Practices': Which Convergence?239

13. Conclusion: A Systemic Convergence Focused on Consumer Welfare240

Bibliographical Notes242

Appendix - On TRIPs and developing countries: 'Don't do unto others ...'247

1. Foreword247

2. Adieu to the 'Local Working Requirement'250

3. On the Deadlines for Applying TRIP Rules252

4. Drawing some Conclusions ...254

5. And Searching for Remedies255

6. More on the Rationale for the Local Working Requirement,also as Concerns the Supply of Patented Drugs256

7. Seq. AFortiori, When Exploitation of Local Biodiversity is Concerned259

Bibliographical Notes260

Index263