In this volume, editors Anselm Kamperman Sanders and Anke Moerland present a collection of essays exploring IP as a fluid, responsive dynamic between regulations, economies, entrepreneurs, and innovation, each influencing the other.
The book's primary focus is on patent law and is divided into three parts. The first and largest section (Part I) provides six essays on Patents and Innovation. Part II, composed of two essays, examines Markets, Collective Management, and Creativity with a focus on EU Geographic Indications and European online music licensing. Part III, Institutions and Justice, contains a single essay analyzing the impact of investor-state dispute settlement on IP lawmaking.
In theory, the chapters all share the angle that IP is best understood not simply as a set of fixed parameters but can instead be conceptualized as a responsive and interdependent relationship: a Complex Adaptive System (CAS). What defines a Complex Adaptive System? The authors use Melanie Mitchell's Complexity: A Guided Tour (2009) definition: a CAS is a system “in which large networks of components with no central control and simple rules of operation give rise to complex collective behavior, sophisticated information processing, and adaptation via learning or evolution.” (2)
Sanders and Moerland cite varied examples of complex adaptive systems, including biological species, economies, the brain, and law. Scholars have argued both international investment law and international environmental law would also meet the criteria. Each CAS is composed of “heterogeneous agents who interact with and learn from each other.” This leads the agents to adapt over time as they seek to improve performance, and in turn, this dynamic leads to “self-organized collective behavior which is not controlled through any external party.” (2)
How does IP fit this rubric? IP professors and editors Anselm Kamperman Sanders and Anke Moerland argue that IP's basic dynamics are more complex and less independent than they may appear – and that in an expanding innovation economy, these fluid adaptations and roles are generally not fully understood or explored. In their view, IP should not be only understood as a fixed system of regulatory exchanges and property interests but should instead be viewed more expansively. Seen through this lens, IP plays a number of unsung functions: as a relationship creator (public-private partnerships, business, partnerships, assignment/licensing); as a business tool (for value creation, knowledge sharing, and enforcement), and as a vehicle for investment.
The authors also explore whether public-private partnerships and other policy interventions could serve as a possible softening force against the Valley of Death – that is, the gap between the successful scientific development of a product and the bringing of a product or service to the marketplace. In examining the deleterious effects of the Valley of Death, the authors explore how new policy approaches and a deeper understanding of IP within the marketplace might help to bridge that divide.
Other chapters continue to expand these concepts in greater detail, including perspectives from other academic disciplines and practitioners. In one notable chapter, David Harper, an economics professor at NYU, builds upon the analysis set forth by Sanders and Moerland. In his analysis, Harper argues that the structure of IP law is a “productive capability” of our shared economic system and that IP rights are capital goods used by entrepreneurs. As such, he posits that entrepreneurs are actors in the IP ecosystem who determine when IP rights enter into productive use in the economy. Harper expands on Sanders and Moerland's complex adaptive system theory, noting that IP laws are not simply independent entities, but rather a “web-like network of rules that exhibits increasing structural complexity as it evolves.” (37)
In Chapter 4, the book delves into the topic of Standard Essential Patent (SEP) licensing in the Internet of Things (IoT) era. The author, Beatriz Conde Gallego of the Max Planck Institute for Innovation and Competition, argues that as SEPs become more complex, the significance of interoperability standards may rise considerably. Gallego also raises the question of whether the value of openness, frequently championed by Standard Developing Organizations (SDOs), can hold out as SEP holders confront increasing demands to license their technology.
In another distinctive essay in the volume, Marco D'Ostuni, a partner at Cleary Gottlieb Steen & Hamilton, delivers an analysis of European patent cases and argues that existing antitrust concepts may be insufficient to address new forms of patent infringement such as Patent Assertion Entities (PAEs). This chapter provides a valuable practitioner perspective, written in a crisp and engaging style.
In one patents chapter, “The Machine Having Ordinary Skill in the Art,” law professor Ryan Abbott raises concerns about the future of the “obviousness” standard in patent law given the increasing prevalence of inventive machines and individuals using inventive machines. His concerns have become all the more pressing in light of developments in generative AI following the publication of this volume.
Intellectual Property as a Complex Adaptive System is part of a book series set forth by the European Intellectual Property Institutes Network (EIPIN), an EU-funded initiative. The initiative promoted innovative research in Intellectual Property law by facilitating exchange and dialogue among IP researchers and faculty from across Europe. And as part of this endeavor, the EIPIN book series served as a platform for exploring European, national, and comparative legal/interdisciplinary IP issues. Although primarily focused in a European context, the network provided policy insights that could also apply to other jurisdictions. The series, which began issuing titles in 2013, has six titles to date, and Intellectual Property as a Complex Adaptive System is the most recent arrival.
In short, Intellectual Property as a Complex Adaptive System is well-suited for academic libraries seeking to broaden their European IP catalog, or for those interested in a deep examination of IP rule systems and innovation generally.
