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The End Of Exclusivity: Towards A Compensatory (Patent) Commons, Shamnad Basheer Mr

IDEA: The Intellectual Property Law Review (Franklin Pierce Law Center)

Abstract:

In a seminal piece penned over four decades ago, Calabresi and Melamed theorised a legal remedies framework that contrasted “property rules” with “liability” rules.

Given the various woes associated with patent exclusivities, I draw on this influential “remedies” framework to suggest that we are on the cusp of a paradigm shift, where property rules are yielding to liability rules in a significant way.

Some of the factors contributing to this paradigm shift are as below:

1. An increasing fragmentation of the innovation ecosystem, where the inventor, the innovator and the marketer/distributor of the innovative products/services are often distinct entities, who …