Overall View and Conclusion

Munich, Germany


To recapitulate, this thesis was aimed at analysing and answering the following research questions:


Does the German patent law system (including German and European antitrust law), as currently designed and applied, contain more exclusive elements (property rules)—compared with the possibility of using non-exclusive elements (liability rules)—than it is efficient and necessary? What will be the situation under the regulation on the future European Patent with Unitary Effect?



If the answer to (1) is yes: Are the current and future elements and mechanisms which let the patent owner decide whether he prefers an exclusive or non-exclusive right (private liability rule regimes) sufficient and efficient enough to reduce the overuse of exclusivity?



If the answer to (2) is no: What alternatives and improvements to the current process of application and design of the legal rules would reduce the overuse of exclusivity?


Whereas the first and second questions can be answered with yes or no, the last one is a question that is more nuanced. The first question was analysed in Chap. 2, the second one in Chap. 3 and the last one in Chaps. 3 and 4, with respect to the topics discussed therein. In the following pages, this work concludes with the main results of the analysis. First, general remarks and concrete suggestions are mentioned (Sect. A.); then, shortcomings and suggestions of areas for further research (Sect. B).

A. General Remarks and Concrete Suggestions

This analysis was based on a general framework. Borrowing a widely accepted concept that originates from Calabresi and Melamed, the analysis differentiated first between an entitlement and the enforcement of an entitlement. Such enforcement may take place by property or liability rules1; in the extension of this model it was proposed that liability rules comprise three rules: private liability, compulsory liability and liability by default regimes. Next, the analysis specified that the most important variants of private liability rules are the possibility to declare the willingness to license (licence of right), patent pools with liability rule mechanisms and royalty collection clearinghouses. Moreover, compulsory liability rules, which may have relevance in practice, can be divided into compulsory licensing, automatic compulsory licensing, limitation of the effect of a patent, compulsory patent buyout and limitation of injunctive relief. Liability rule by default regimes could be combined with inverse mechanisms of private liability rules, though this undertaking is of minor practical importance.

Based on this framework, in Chap. 2 this work concluded that the German patent law system, as currently designed and applied, contains more exclusive elements (property rules)—compared with the possibility of using non-exclusive elements (liability rules)—than is efficient and necessary (while leaving out private liability rules). Furthermore, the same may be the case for the future system under the regulation on the European Patent with Unitary Effect, if it were to be applied in the same way. Chapter 3

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