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This authoritative book provides a comprehensive critical overview of the basic IP paradigms, such as patents, trademarks and copyrights. Their intersection with competition law and their impacts on the exercise of social welfare are analysed from an evolutionary perspective. The analyses and proposals presented encompass the features and rationales of a legal field in constant evolution, and relate them to increasingly rapid technological, economic, social and geo-political developments. Gustavo Ghidini highlights the emerging trends that challenge the traditional 'all-exclusionary' vision of IP law and its application. The author expertly combines holistic, evolutionary and constitutionally oriented approaches, with the search for a rebalancing of the IP rights holders' positions with citizens' and users' rights. This book will appeal to academics, scholars and lawyers specializing in the realm of intellectual property, competition and comparative law.
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Innovation, Competition and Consumer Welfare in Intellectual Property Law For Adriano Vanzetti Innovation, Competition and Consumer Welfare in Intellectual Property Law Gustavo Ghidini Professor of Intellectual Property and Competition Law, University of Milan; Director, Observatory on Intellectual Property, Competition and Communications Law, LUISS Guido Carli University, Rome Edward Elgar Cheltenham, UK • Northampton, MA, USA © Gustavo Ghidini 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2009937900 ISBN 978 1 84720 970 2 02 Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound by MPG Books Group, UK Contents Preface by Giuliano Amato Preface to Intellectual Property and Competition Law by J.H. Reichman A nouvelle vague? Author’s brief foreword Acknowledgements 1 2 Introduction: the basic paradigms and constitutional framework of intellectual property law 1. Foreword. The Mosaic and the Fabric 2. From Paris and Berne to Marrakech: IP’s Basic Paradigms I. The classic dualism between patents and copyright, and its evolution II. The (expanded) protection of trademarks 3. The Firm as the Central Reference of IP Law 4. Rationale of that Centrality 5. The Dialectic with Social Interests Involved in the Overall Constitutional Framework 6. Intellectual Property and Antitrust: Distinct Rules ... 7. … But Nonetheless Dialectally Intertwined 8. The Guiding Principles 9. Current Protectionist Trends 10. Specific Examples 11. Signs of an About-turn … 12. Keep a Tight Hold on the Helm Bibliographical Notes Patent protection of innovations: a monopoly with pro-competitive antibodies 1. The Dialectic Physiognomy of Patents Part I The area of patentability: the often arduous distinction between basic and applied research 2. The Privatisation of the Fruits of (Applied) Research 3. Again on the Delimitation of Patentability to Applied Research: Its Rationale: Epistemological Considerations … 4. … And Economic Considerations v x xii xvii xx 1 1 2 2 4 5 8 9 11 13 17 19 20 23 28 30 33 33 37 37 40 43 vi Innovation, Competition and IP Law 5. The (Fragile) Boundary between ‘Basic’ and ‘Applied’ Research: So-called Targeted Research 6. Interpretative Adjustments Part II Striking a balance between exclusive protection and c