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Intellectual Property Rights, Global Competition and Transfer Of Intellectual Property Rights, Global Competition and Transfer of Technology: Prospects for a Global System of Innovation Rights based on the Quasi-Contract of Unjust Enrichment Dissertation zur Erlangung des Doktorgrades der Juristischen Fakultät der Universität Konstanz vorgelegt von Pedro Suárez-Baltodano Konstanz 1999 Dissertation der Universität Konstanz Tag der mündlichen Prüfung: 17. Oktober 2000 1. Referent: Prof. Dr. Reiner Hausmann 2. Referent: Prof. Dr. Wolfgang Seibel Contents II General Overview General Overview..............................................................……..............................................................II Content....................................................................................…….......................................................III Index of Abbreviations.......... ........................................................……..................................................X INTRODUCTION...............................................................................……............................................1 I. BASIC INSTITUTIONS FOR TECHNOLOGY PROMOTION AND TECHNOLOGY TRANSFER............................................................................................................................................ 6 A. IMPORTANCE OF TECHNOLOGY TRANSFER IN THE MODERN WORLD............................................... 6 B. INTRODUCTION ........................................................................................................................... 6 1. Role of Technology for Development ..................................................................................... 6 2. Technology and Social Change.............................................................................................. 8 3. Technology and Comparative Advantages ............................................................................. 8 4. Consequences of Effects of Technology Changes in Industrialized Countries......................... 9 5. Importance of Technology Acquisition for Developing Countries......................................... 11 6. Technology and Development: A Comparative Analysis of Asia and Latin America............. 14 7. Technologytransfer as a Key Element for the Stabilization of the Global Economy.............. 16 C. PROBLEMS HINDERING THE CREATION OF MARKETS FOR PRODUCTION AND COMMERCIALIZATION OF TECHNOLOGY ................................................................................................................................ 17 1. General Aspects................................................................................................................... 17 2. Characteristics of Technology that Create Appropriability Problems................................... 18 3. Market Failures in Production and Commercialization of Technology................................. 22 4. Practical Solutions to Appropriability Problem .................................................................. 25 D. GENERAL OVERVIEW OF LEGAL FRAMEWORK FOR INTELLECTUAL PROPERTY RIGHTS................... 29 1. Justification of Intervention Through Legal Instruments ...................................................... 29 2. Legal Instruments Based on Property Rights........................................................................ 30 3. Technology as “Common Heritage of Mankind”.................................................................. 38 4. Legal Instruments Based on Rights in Torts and Equity ....................................................... 39 5. Elements for Analysis of the Institutional Framework of Technology ................................... 44 6. General Overview of the International Institutional Framework of Technology......... 47 E. SUMMARY AND GENERAL CONCLUSIONS .................................................................................... 55 1. Role of Technology for Development ................................................................................... 55 2. Technology Transfer as Negotiation Problem ...................................................................... 56 3. Problems Hindering Creation of Markets for Production and Commercialization of Technology ................................................................................................................................... 56 4. General Overview of Legal Framework of Intellectual Property Rights................................ 57 II. INTERNATIONAL TECHNOLOGY TRANSFER AND PROMOTION AS A BARGAINING PROBLEM........................................................................................................................................... 59 A. ELEMENTS OF TECHNOLOGY TRANSFER NEGOTIATION................................................................ 59 1. Introduction......................................................................................................................... 59 2. Technology Transfer as a Collaboration Relationship.......................................................... 62 3. Obstacles for Defining a Collaborative Framework for Technology Transfer....................... 68 B. MULTILATERAL NEGOTIATION OF INTELLECTUAL PROPERTY RIGHTS AND TECHNOLOGY TRANSFER AT GATT........................................................................................................................................... 94 1. General Context of Negotiation ........................................................................................... 94 2. Introduction of Intellectual Property Rights in GATT........................................................... 95 3. North-South Conflict Framing at TRIPS Negotiations.......................................................... 99 4. Content of the TRIPS Agreement........................................................................................ 115 C. SUMMARY AND GENERAL CONCLUSIONS .................................................................................. 122 1. Elements of Technology Transfer Negotiation.................................................................... 122 2. Obstacles to Defining a Collaborative Framework for Technology Transfer ...................... 123 3. Multilateral Negotiation of Intellectual Property Rights and Technology Transfer at GATT125 III. LEGAL ANALYSIS OF THE PATENT RIGHTS REGIME AS INSTRUMENT FOR PROMOTING INNOVATION.......................................................................................................... 128 A. INTRODUCTION: ...................................................................................................................... 128 Contents III B. ORIGINS OF THE MODERN PATENT SYSTEM: FROM A MONOPOLY PRIVILEGE TO INTELLECTUAL PROPERTY RIGHTS............................................................................................................................ 132 C. ANALYSIS OF THE CURRENT THEORETICAL FRAMEWORK OF PATENT RIGHTS ............................. 152 1. Dichotomy between Right of the Inventor and Patent Right................................................ 153 2. Theoretical Justification for Using Private Property in Copyrights.................................... 158 3. Theoretical Problems of the Assimilation of Patent Rights to Private Property .................. 173 4. Theory of Patent as Monopoly Rights ................................................................................ 193 5. Monopolistic and Proprietary Conceptions of the Patent System as Stressing the Conflict of Interest Dichotomy between Social and Private Interests in Patent Rights .................................. 201 D. ANALYSIS OF THE TWO PRINCIPAL PATENT SYSTEMS ................................................................ 210 1. The Hard Patent Protection System of Western Countries.................................................. 210 2. Reform of The Hard Protection System: The Japanese Variant .......................................... 226 3. Requirements of Patentability in the Two Basic Variants and its Relation to the TRIPS Agreement .................................................................................................................................. 236 E. SUMMARY AND GENERAL CONCLUSIONS .................................................................................. 257 1. Summary of the Objections to the Hard Protection System................................................. 257 2. Advantages of the Soft Protection Patent System................................................................ 263 IV. INSTITUTIONAL FRAMEWORK FOR AN INNOVATION SYSTEM .......................... 265 A. PRINCIPLES OF ECONOMIC POLICY FOR CREATING A NETWORK OF INNOVATION PROMOTION AND DIFFUSION........................................................................................................................................ 265 1. Importance of a Systemic Framework for Promoting Innovation ........................................ 265 2. Elements for Creating a Modern Innovation System........................................................... 284 B. LEGAL INSTRUMENTS FOR OPTIMIZING THE PATENT SYSTEM..................................................... 316 1. Basic Considerations for Optimization of the Patent System .............................................. 316 2. Process of Patent Filing, Examination and Granting as Instrument for Technology Transfer323 3. Reduction of Scope of Protection and Relaxation of Novelty Requirement through Case Law327 4. Regulation of Small Patents..............................................................................................
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