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Castro Bernieri, Rosa --- "Ex post Liability Rules: A Solution for the Biomedical Anti-commons?" [2010] ELECD 656; in Flanagan, Anne; Montagnani, Lillà Maria (eds), "Intellectual Property Law" (Edward Elgar Publishing, 2010)

Book Title: Intellectual Property Law

Editor(s): Flanagan, Anne; Montagnani, Lillà Maria

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446274

Section: Chapter 5

Section Title: Ex post Liability Rules: A Solution for the Biomedical Anti-commons?

Author(s): Castro Bernieri, Rosa

Number of pages: 19

Extract:

5. Ex post liability rules: a solution for
the biomedical anti-commons?*
Rosa Castro Bernieri

1. INTRODUCTION

While patents are mainly justified in the law and economics literature as
temporary exclusive rights that foster innovation incentives, the guiding
principle of efficiency requires that exclusive rights over technological
and scientific knowledge do not preclude their further advancement.
Thus, efficiency suggests that patent rights should not extend beyond
social optimalization in a similar way to social justice calls for limitations
on the exclusive nature of rights, in order to avoid patents encroaching
upon other public interest goals such as access to knowledge.1 In the
biomedical arena, patents are considered as a vital source for innovation
incentives, while undue limitations on access are perceived as a growing
concern. In particular, the increasing number of patents issued for bio-
medical research tools has been singled out as a potential catalyst for the
emergence of anti-commons.2
Most proposals to deal with the emergence of anti-commons in


* An earlier version of this chapter was presented as a paper at the 3rd Annual
Workshop on the Law and Economics of Intellectual Property and Information
Technology, Centre for Commercial Law Studies, Queen Mary, University of
London. I thank discussants and participants in the Workshop for their useful
comments. My special thanks to Maria Lillà Montagnani for her comments on the
earlier draft. All errors remain my own.
1 Giovanni B. Ramello, `Intellectual property, social justice and economic effi-

ciency: insights from law and economics' ( ...