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Indiana farmer Vernon Bowman wears Monsanto cap: irony or admiration?
Photo by Dan Charles, NPR

The man in the picture above is a self-proclaimed fan of Monsanto Company’s genetically engineered soybeans. In fact, every year until 2007 Vernon Hugh Bowman – a 75-year-old farmer from Indiana – purchased Monsanto’s Roundup-Ready soy seeds (RR) from a licensed retailer in order to plant his crop of soy. RR is a type of genetically modified seed that has in-plant resistance to glyphosate, the active ingredient in Monsanto’s Roundup herbicides. This means RR soy crops can be sprayed with Roundup weed-killers without any damage being done to the soy.

But despite his loyalty and admiration, in 2007 Bowman was sued by Monsanto for patent infringement, and the farmer has taken on a legal dispute that recently reached the U.S. Supreme Court. The case revolves around whether Monsanto’s patent over RR soybeans grants it control over the reproduction of second-generation seeds. But from a broader perspective it raises the question of what institutional framework is most desirable for regulating the scope of patent rights and points to the tension between protecting competitive markets and promoting innovation through patents. Moreover, it brings to the public sphere discussions concerning transformations of the farming sector resulting from the privatization of its basic input – seeds. Read the rest of this entry »

In the light of the ongoing patent war – most prominently the series of Apple v. Samsung lawsuits – in the smartphone and tablet computer industry (see also “The Power of Patents“), the current patent system has garnered harsh criticism. In a lenghty piece in the New York Times, Charles Duhigg and Steve Lohr criticize that “[i]n the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years” and summarize the situation as follows:

[M]any people argue that the nation’s patent rules, intended for a mechanical world, are inadequate in today’s digital marketplace. Unlike patents for new drug formulas, patents on software often effectively grant ownership of concepts, rather than tangible creations. Today, the patent office routinely approves patents that describe vague algorithms or business methods, like a software system for calculating online prices, without patent examiners demanding specifics about how those calculations occur or how the software operates.

On his blog, economist and US Court of Appeals judge Richard A. Posner takes the same line, expressing concerns that “both patent and copyright protection, though particularly the former, may be excessive”: Read the rest of this entry »

Two weeks ago the First Berlin Symposium on Internet and Society took place in Berlin, celebrating the opening of the Alexander von Humboldt Institute for Internet and Society. Specifically for this event I had prepared a paper on “The Digital Public Domain: Relevance and Regulation” (SSRN), which was presented and then commented upon by Juan Carlos de Martin and Felix Stalder. Both provided very thoughtful criticsm and extensions to the paper, introducing an overall discussion that was very constructive and focused on the issues tackled in the paper.

While I have not managed to blog about the workshop so far, Anne-Catherine Lorrain from the COMMUNIA Association has now provided an extensive summary. There  she documents why mapping the public domain empirically is a worthwhile exercise:

The empirical mapping of the public domain should help identifying more precisely the economic relevance of the public domain. The regulation framework applying to the public domain can produce some direct effects on the economy, and more particularly on innovation. As a matter of fact, businesses can suffer genuine legal uncertainty when it comes to identify what is protected by IP rights and what is not. The positive economic impact of content being in the public domain is sometimes already acknowledged in practice. For instance, some patent rights holders can decide to donate patentable inventions in order to create a pre-competitive market. Like the “adjustment process” (Schumpeter), the utility of the public domain to improve competition should be demonstrated, although the question about how this aspect should be echoed within legislation remains.

Besides, her summary features the pink sky over Berlin towards the end of the workshop:

Pink sunset on the Spree behind the Public Domain session speakers from left to right Martin Kretschmer, Leonhard Dobusch, Felix Stadler, Juan Carlos De Martin; picture: Anne-Catherine Lorrain

 I can only thank Anne-Catherine very much for providing this great summary and endorse reading the whole transcript.


Today, Google announced its acquisition of Motorola Mobility for not less than $12.5 billion in cash. And I completely agree with Forbes’ contributor Eric Jackson, who states that


Saad Irfan, CC BY-NC-ND

[i]f you think this is about Google getting into the handset business, think again. If Google were to get into the handset business, they would turn their back on partners like HTC, Samsung and others.
Today’s deal is all about acquiring Motorola’s backlog of mobile-related patents. When Google lost out on the batch of Nortel patents, they worried that Android was significantly at risk.

A risk stemming from the fact that, in spite of developing Android under an open source license, powerful patent holders such as Microsoft were able to squeeze out licensing fees from corporate Android users. The bizarre result being that Google, the main developer of Android, gives away its contributions to the operating system for free while its not-contributing competitor Microsoft charged hardware producer HTC $5 for any shipped Android (!) smartphone (see business insider). Read the rest of this entry »

As mentioned in my last post, this summer I am visiting the WZB to work on a paper about the digital public domain. Rifling through a huge pile of papers on the issue, I recently stumbled across Robert P. Merges’ 2004 essay “A New Dynamism in the Public Domain” (PDF) – and I really regret not having read this piece much earlier. He summarizes the main point of his paper as follows:

The simple point of this Essay is that these investments are invigorating the public domain with a new dynamism stemming from private action. These investments demonstrate that private action, and not just government policy, can augment the public domain. (p. 184)

Such private investments into the public domain, Merges argues, are inspired by the very expansions of intellectual property rights they seek to counteract: Read the rest of this entry »

Steven Johnson, 2010: Where Good Ideas Come From: The Natural History of Innovation. New York: Riverhead Books.

Steven Johnson is all about crossing borders. His books deal with a great variety of topics, ranging from London’s most terrifying cholera epidemic  (“The Ghost Map“) to a praise of popular culture (“Everything Bad is Good for You“). And also in his most recent book, Steven Johnson crosses disciplinary and historical borders, when he, in his own words, “analyzed 300 of the most influential innovations in science, commerce and technology — from the discovery of vacuums to the vacuum tube to the vacuum cleaner”.

The list of reviews and summaries of the book availble online is endless, including a TED talk given by the author himself and a great video summary featured above. So I am not going to reproduce any of these but very selectively refer to one of the examples presented in the book that relates most to the issues discussed in this blog. This example is the web-based patent marketplace GreenXChange, where Nike publicly released more than 400 of its patents that involve environmentally friendly materials or technologies. Johnson discribes rationale and realization of the project as follows (p. 125):

“By keeping its eco-friendly ideas behind a veil of secrecy, Nike was holding back – without any real commercial justification – ideas that might, in another context, contribute to a sustainable future. In collaboration with Creative Commons, Nike released its patents under a modified license permitting use in ‘non-competitive’ fields.  (They also created a standardized, pre-negotiated contract for patents, thereby reducing the transaction costs of haggling over each patent license individually.)”

This is the first example, at least to my knowledge, where Creative Commons was active in standardizing licenses outside of the field of copyright regulation (see the respective announcement on its blog). Moreover, it demonstrates how similar problems and solutions in both so-called “hemispheres” of intellectual proporty – patents and copyright – might be after all. Hopefully, I will soon find the time to do some comparative studies on private regulation in both these fields.


In his recent article “Decoding Divergence in Software Regulation”* Thomas Eimer very convincingly demonstrates and explains differences in software patent regulation between the United States and the European Union. He basically distinguishes three “structural causes for the persisting divergence” (p. 276) – namely the US practice of patenting software versus the European reluctance of doing so:  (1) incompatible underlying paradigms, (2) differentiated patterns of power structure, and (3) unsynchronized institutional arrangements.

Especially in dealing with the first cause, “paradigmatic cleavage”, Eimer argues rather broadly, embracing both patent and copyright law. And I completely agree, when he contrasts the strong “utilitarian” rationale of intellectual property rights in the US with European scepticism for such utilitarian reasoning. I am not so sure, however, that the partial rejection of utilitarian welfare assumptions automatically leads to a better balance between “public and private interests” in the field of intellectual property regulation in general, as implied by Eimer when he writes: “Opponents of strong intellectual property rights in Europe can refer to a long tradition of suspicion”. Read the rest of this entry »

The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
January 2017
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