Rethinking Intellectual Property Ownership in the Context of Open Innovation

Date: 31 May 2019

Venue: KU Leuven, Promotiezaal - Naamsestraat 22 - 3000 Leuven

Time: 5:00 PM

Organization / co-organization: KU Leuven Centre for IT & IP Law

PhD candidate: Arina Gorbatyuk

Principal investigator: Prof. dr. Geertrui Van Overwalle (KU Leuven) en Prof. dr. Esther van Zimmeren (UAntwerpen)

Short description: Joint PhD Arina Gorbatyuk - Centre of IT & IP Law (KU Leuven) & Faculty of Law (Universiteit Antwerpen)


Due to the increased complexity of new technologies and rapid technological developments, organizations often cannot independently keep up with the technological progress and engage in open innovation (OI) activities by setting up (international) R&D partnerships. In negotiating such R&D partnerships, the allocation of intellectual property (IP) ownership of jointly developed knowledge is a difficult task, in particular in case of international partnerships. Parties may safeguard generated knowledge using patent and/or trade secret protection. The allocation of patent ownership and trade secret control within such international partnerships can be extremely problematic due to the lack of regulation and harmonization of IP legislation. This entails the need to consult a considerable number of legal systems that may be involved in large-scale international partnerships.

While many legal patent systems suggest co-ownership as a default regime, in practice organizations often avoid it due to the complexity related to further joint exploitation. The principle of freedom of contract allows collaborating organizations to establish their own applicable rules (“contract-based regime”) governing the allocation of ownership and further exploitation of jointly developed knowledge. This contract-based regime provides more flexibility but also implies considerable transaction costs in negotiating the contract. Moreover, the legislators fail to address the issue of joint trade secret control in any jurisdiction. Thus, collaborating parties cannot rely on default rules and have to contractually allocate control of jointly developed trade secrets.

First, this research aims at developing a better understanding of the current legal framework concerning the allocation of IP ownership of jointly developed knowledge by conducting a comparative analysis of legislation. Second, the application of that legal framework in practice is assessed by analyzing data obtained through 56 semi-structured interviews. Third, the analysis of the interface between IP default regimes and contract-based regimes is undertaken to find legal mechanisms that could facilitate the allocation of IP ownership generated in R&D partnerships and reduce costs associated with the negotiation of R&D partnerships. Finally, the research provides a set of recommendations addressed to collaborating parties, legislators and policymakers that would (a) facilitate the establishment of international R&D partnerships and (b) increase the openness and transparency of IP to aid further engagement in OI processes.

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