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

Abstract

The definition of the legal nature of intellectual property rights is crucial for their interpretation and enforcement. A reconsideration of this legal foundation may significantly increase the efficiency of intellectual property rights in promoting both the creation and difusion of technology. Traditionally the exclusion right of patents has been explained as based on monopoly or property rights. As a result, the exclusion right has been interpreted as absolute (per se). The possibility of framing patent exclusion rights as based on the quasi-contract of unjust enrichment has been overlook. In this case, the exclusion right is not absolute, per se, but based on a rule of reason. The new economy has increased the possibilities of global networking, whereby profit is generated by licensing. This joined with the creation of national systems of innovation, such as the Japanese one, makes a system of protection for innovators based on quasi-contracts feasible. In this context, patentees are no longer encouraged to frame their rights as absolute monopoly rights to exclude others arbitrarily, but as instruments to profit from the transfer and difusion of technology. Compulsory licensing is no longer framed as an expropriation, but as a measurement that may be necessary to balance legitimate interests of technology users. Infringement of patents constitutes an act of unjust enrichment, whereby negligent or intentional infringers should make additionally restitution of damages. In this case, patent rights are constructed on general principles of law and equity globally recognized. Thus, this framework offers a proper background for interpreting and applying the TRIPs Agreement. It allows for the creation of a win/win bargaining scenario, whereby all parties are interested in sharing their resources as long as they can obtain fair participation in the enrichment generated by their contributions. As a result, all agents may profit from the systemic nature of innovation.