From Open Source Software to Open Patenting: What’s New in the Realm of Openness?

mariateresa maggiolino, Bocconi University
maria lillà montagnani, Bocconi University

Abstract

This paper analyses the emerging Open Patenting (OP) phenomenon within the boundaries of the Open Source (OS), and against the backdrop of the Open Source Software (OSS). We argues that OP like OSS can be a flexible legal tool capable of shaping the existing IP rules thereby facing some of the limits that the traditional paradigms used for explaining innovation and managing IPRs bear. Further, we maintain that IP differently from OSS is still a kaleidoscopic phenomenon whose boundaries are unsettled and very much affected by the industry to which the subject matter (or innovation) belongs. Part I discusses the limits that affect the models traditionally used for explaining innovation and managing both its ownership and the bundle of rights that it generates. Part II pictures the OS and analyzes the OSS features that make it an established and successful cultural, commercial and legal phenomenon. Part III describes some emerging episodes that belong to OP as well as the skepticism that they arise. Part IV concludes by setting the boundaries of OP and providing an initial definition of it.