The Governance of European Intellectual Property Rights: Toward a Differentiated Community Approach

In this article we argue that the regulation of Intellectual Property (IP) protection should go beyond the traditional regulatory models and follow a more flexible regulatory framework. Considering the range of industrial needs and developments, the article develops a differentiated Community IP protection model that could stimulate growth and innovation, alter the behavior of patent users, and improve the quality of patents through spontaneous harmonization and convergence. To explain the model better, we distinguish two key elements: differentiated framework directives and epistemic patent communities. Differentiated framework directives dictate the establishment of general patentability standards at the EU level but allow national patent systems to set up stricter patent standards for particular subject matters at the national level. In this way, differentiated framework directives should lead to an appropriate balance between the principles of the IP protection regime and the ideals of economic integration. However, given the current diversity in innovation developments and industrial operations, we recognize the risk that not all IP stakeholders would agree to a differentiated Community IP protection model. To overcome the risk of deadlock within model negotiations, and to encourage the integration of countries that want to move forward and advance certain innovation developments, we propose the creation of epistemic patent communities. In this article, epistemic patent communities are perceived as strong mechanisms for establishing an inclusive patent protection environment that encourages various stakeholders to agree on certain patentability principles and to acquire better IP protection at the EU level.