Bucerius Law School, Hamburg, Germany
October 11, 2013

Professor Dr. Hanns Ullrich (Max Planck Institute for Intellectual Property and Competition Law)
Open Innovation: The Many Forms of Exclusion and Inclusion and the Know-how Hurdle

Open source software licensing under copyright law and "open patenting", as advocated for more recently, represent only more or less distinct varieties among the many forms of open innovation. While the concept of open innovation is itself an open one, and in need of explanation, it is generally assumed that it is linked to the ways the subject-matter of intellectual property rights, in particular patented inventions and copyrighted works, is created and disseminated or exploited. Confidential know-how marks a dividing line between the less and the more open forms of innovation. Its status within the intellectual property system is uncertain and controversial. It is, therefore, interesting to examine the role and function of know-how in the context of open innovation as well as the justification for its protection in general. This appears to be the more opportune as trade secret protection is on the harmonization agenda of the EU, and as open innovation approaches represent cross-border strategies of creating and disseminating new technologies.