Study  |  07/28/2020

Identifying and Measuring Artificial Intelligence – Making the Impossible Possible

Researchers of the Institute and the OECD have published a new study on how to identify and measure AI-related developments in science, algorithms and technologies. Using information from scientific publications, open source software (OSS) and patents, they find a marked increase in AI-related developments over recent years. The growing role of China in the AI space emerges throughout.

Artificial Intelligence (AI) is a term commonly used to describe machines performing human-like cognitive functions (e.g., learning, understanding, reasoning, and interacting). AI is expected to have far-ranging economic repercussions, as it has the potential to revolutionize production, to influence the behavior of economic actors and to transform economies and societies.

The vast potential of this (now considered) general purpose technology has led OECD countries and G20 economies to agree on key principles aimed at fostering the development of ethical and trustworthy AI. The practical implementation of such principles nevertheless requires a common understanding of what AI is and is made of, in terms of both scientific and technological developments, as well as possible applications.

Addressing the challenges inherent in delineating the boundaries of such a complex subject matter, the study proposes an operational definition of AI, based on the identification and measurement of AI-related developments in science, algorithms and technologies. The analysis draws on information contained in scientific publications, open source software and patents.

Approach of the study

The three-pronged approach of the study relies on an array of established bibliometric and patent-based methods, and is complemented by an experimental machine learning (ML) approach implemented on purposely collected open source software data:

  • The identification of the science behind AI developments builds on a bibliometric two-step approach, whereby a first set of AI-relevant keywords is extracted from scientific publications classified as AI in the Elsevier’s Scopus® database. This set is then augmented and refined using text mining techniques and expert validation.
  • As AI is ultimately implemented in the form of algorithms, the authors use open-source software’s information about software commits (i.e., contributions) posted on GitHub (an online hosting platform) to track AI-related software developments and applications. Such data are combined with information from papers presented at key AI conferences to identify “core” AI repositories. Machine learning techniques trained using information for the thus identified core set are used to explore the whole set of software contributions in GitHub to identify all AI-related repositories.
  • Information contained in patent data serves to identify and map AI-related inventions and new technological developments embedding AI-related components. Text mining techniques are used to search abstracts and patent documents referring to AI-related papers.

Selected findings of the study

  • The authors find an acceleration in the number of publications in AI in the early 2000s, followed by a steady growth of 10% a year on average until 2015, before accelerating again at a pace of 23% a year since then. The share of AI-related publications in total publications increased to over 2.2% of all publications in 2018.
  • 28% of the world AI-related papers published in 2016-18 belongs to authors with affiliations in China. Over time, the share of AI publications originating from EU28, the United States and Japan has been decreasing, as compared to the levels observed ten years earlier.
  • Since 2014, the number of open-source software repositories related to AI has grown about three times as much as the rest of open-source software.
  • There is a marked increase in the proportion of AI-related inventions over the total number of inventions after 2015. This ratio averaged to more than 2.3% in 2017.
  • “Neural networks” and “image processing” are the most frequent terms appearing in the abstracts of AI-related patents.
  • In AI-related patents, the contribution of China-based inventors multiplied more than six fold since the mid-2000s, reaching nearly 13% in the mid-2010s.

For more facts and detailed information, see the publication:

Stefano Baruffaldi, Brigitte van Beuzekom, Hélène Dernis, Dietmar Harhoffi, Nandan Rao, David Rosenfeld, Mariagrazia Squicciarini (2020).
Identifying and Measuring Developments in Artificial Intelligence: Making the Impossible Possible.
OECD Science, Technology and Industry Working Papers No. 2020/05.

Stefano Baruffaldi is Affiliated Research Fellow in the department Innovation and Entrepreneurship Research and Assistant Professor at the University of Bath.

Dietmar Harhoff is director at the Max Planck Institute for Innovation and Competition.

Die Publikation „The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses” von Christophe Geiger und Luc Desaunettes-Barbero zeigt, dass die „Plain Packaging“-Entscheidungen nicht nur das Markenrecht betreffen, sondern dem TRIPS-Abkommen mehr Flexibilität geben
Study  |  07/27/2020

More Flexibility for the TRIPS Agreement

Public health can constitute a legitimate reason to encumber trademark use: This was recently confirmed by the WTO Appellate Body. A current publication concludes that the decision provides more flexibility to WTO members for adapting intellectual property rights to new realities.

[Bitte nach "english" übersetzen:] The publication „The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses” by Christophe Geiger und Luc Desaunettes-Barbero shows that the "plain packaging" decisions do not only concern trademark law, but also give more flexibility to the TRIPS Agreement
The „plain packaging“ descisions are likely to have an impact beyond the tobacco industry

Plain packaging for cigarettes does not violate international trade rules: With its confirmation of the original decision of the WTO Panel of 2018 the Appellate Body of the World Trade Organization in June aroused worldwide media interest and ended a legal dispute that had lasted almost a decade.

The backdrop: In 2012 Australia became the first country in the world to introduce uniform sludge-green packaging for cigarettes, with drastic pictures warning of the consequences of smoking. Regarding brands, it decreeds that all logos or trademarks were to be removed from tobacco packages and the brand name should be printed only in small standardised fonts. This prompted the four tobacco-producing countries Indonesia, Honduras, the Dominican Republic and Cuba to file a complaint via the WTO dispute settlement system. They argued the measures constitute a violation of the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights). After their complaint was dismissed in 2018 by the Panel, Honduras and the Dominican Republic raised an appeal, which was rejected in June.

Impact goes beyond trademark law

The decisions are likely not only to accelerate the implementation of “plain packaging” worldwide, but also to have impact far beyond the tobacco industry. The current publication “The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses” by Christophe Geiger and Luc Desaunettes-Barbero shows that the impact of the decisions goes beyond trademark law and even opens up new room for interpretation of the whole TRIPS Agreement.

The study focuses on the new application of the so-called flexibility clauses in the "plain packaging" decisions. These clauses entailed in its Articles 7 and 8 describe the objectives and principles of the TRIPS Agreement. While they have so far played only a residual role in the interpretation of the provisions of the Agreement in practice, the WTO dispute settlement bodies for the first time fully engaged with them in the “plain packaging” decisions. As a result, they conclude that public health may constitute a legitimate reason for limiting trademark use. 

The authors show that the new reading of Articles 7 and 8 offer the possibility for a more flexible interpretation of the TRIPS Agreement. This applies in particular to the limitations and exceptions. By refraining from using Articles 7 and 8 in the past, the WTO established a rigid interpretation of these exceptions: The focus was on a strong protection of intellectual property rights without taking into account that such an interpretation could lead to dysfunctional effects in individual cases. The “plain packaging” decisions offer the WTO members more flexibility to adapt intellectual property rights to new realities and the possibility to take into consideration conflicting human rights.   

The publication can be found here.

Die Digitalisierung sorgt für neue Herausforderungen im Patentrecht und für mehr gemeldete Patente
Research News  |  05/05/2020

Modernizing Patent Law: New Rules for the Digital Age

The claim for injunctive relief under patent law shall be subject to proportionality in the future. The Institute has issued a position paper on the amendments proposed by the Federal Ministry of Justice and Consumer Protection.

Digitization poses new challenges for patent protection. In particular, the large number of patent-protected individual components used in some products makes it difficult to identify all the relevant property rights and to acquire the necessary licenses.

Just over ten years after the last amendment to the Patent Act by the (first) "Act to Simplify and Modernise Patent Law" the, the Federal Ministry of Justice and Consumer Protection submitted a discussion draft at the beginning of this year that provides for a selective revision of the Patent Act. At the heart of the amendment is the flexibilisation of the injunctive relief in Section 139(1). This grants the patentee the right to prohibit the use of his patent by third parties. The discussion draft proposes to insert a third sentence to the Section, clarifying that the enforcement of the injunction can be excluded in individual cases if it would be disproportionate.


Suggestions for the further legislative process

In practice, such constellations are likely to arise in the case of "complex products" which often comprise a large number of individually patented components that, in themselves, contribute only marginally to the value of the final product. As a result, each patentee enjoys a position of power that is out of proportion with the contribution of its invention to the final product, since the patentee can, under certain circumstances, stop the production of a product with an injunction. In the case of standard-essential patents (SEPs) or “non-practicing entities”, which do not have or do not want to establish any production capacity themselves, the granting of injunctive relief may also be disproportionate in individual cases.

The Institute, which issued a position paper on the discussion draft in March, in principle welcomes the proposed limitation of the claim to injunctive relief. However, the Institute does also provide certain suggestions with regard to the further legislative process, for example with regard to the criteria used for the assessment of proportionality. The discussion draft ties in with the principle of good faith; in the statement, the "leverage effect" of the injunction is in the foreground.  The authors are particularly concerned about the prioritisation of the patentee's interests over the interests of other parties or the public. “Such prioritisation is neither desirable as a matter of policy, nor justifiable by the exclusive nature of the patent right”, argues the position paper.

The position paper also criticizes the fact that the discussion draft rejects the consideration of third party interests and public interests in the context of the proportionality assessment categorically. The Institute contradicts the argument of the Federal Ministry that general interests are sufficiently and conclusively protected by the institute of compulsory licensing under Sec. 24 Patent Law.

Read the full text of the Institute's position paper here

Study  |  04/30/2020

Digitalization by Corona? New bidt Study on Remote Work in Germany

Dietmar Harhoff, director at the Max Planck Institute for Innovation and Competition and member of the board of directors of the Bavarian Research Institute for Digital Transformation (bidt), is co-author of the study on the spread and acceptance of remote work in Germany. He stresses that companies should not return to old organizational patterns after the crisis.

[Translate to english:]
Illustration: bidt

The Bavarian Research Institute for Digital Transformation (bidt) has examined important questions concerning the spread and acceptance of work from home. To this end, bidt conducted a representative short survey among 1,595 employed adult Internet users in Germany. The analysis shows:

  • The use of remote work has increased during the crisis.
  • The satisfaction with the current situation of remote working is high.
  • Before the Corona crisis, some employers did not allow remote work.
  • Employers were generally well prepared.
  • The acceptance of remote work has increased.
  • The desire for more working from home is strong.

Dietmar Harhoff explains that there is a high level of acceptance among employees for remote work. The economy must take up this willingness, he says. Germany is lagging behind in the EU comparison when it comes to remote working. Home-based work is not only a question of organizational culture. It also leads to new management concepts and strengthens digitalization and innovative ability.

To the detailed bidt study (in German).

Here you can also listen to the podcast “Job Cuts and Remote Work: How Corona Is Changing the World of Work” (in German) in the NDR Info Speaking Time (30 April 2020) with contributions from Dietmar Harhoff.

Opinion  |  03/11/2020

Position Paper on the Proposed Reform of the German Patent Act

The Position Paper generally welcomes the initiative of the Federal Ministry of Justice and Consumer Protection, but makes suggestions for improvements, in particular, with regard to the application of the principle of proportionality in the injunction relief proceedings and the protection of trade secrets in patent litigation. 

Opinion  |  02/11/2020

Comments on the Draft Issues Paper of the WIPO on Intellectual Property Policy and Artificial Intelligence of 11 February 2020

Cover der neuen GRUR International
Research News  |  01/13/2020

English Relaunch of a Well-Established Law Journal

GRUR Int. has entered the new year with a revised concept: The journal is now called "GRUR International" and is published exclusively in English. Articles will be selected based on an independent peer-review process.

Cover of the new GRUR International
The first issue of the new GRUR International

A pioneer among international journals in the field of IP and competition law, the "Gewerblicher Rechtsschutz und Urheberrecht, Internationaler Teil” (GRUR Int.), which first appeared in 1952, has modernized its concept to give it a stronger alignment with its target audience. Since 1967, the academic responsibility for the journal has been in the hands of the Max Planck Institute for Innovation and Competition, as it is called today. The economic patron has always been the German Association for the Protection of Intellectual Property and Copyright Law (Deutsche Vereinigung für Gewerblichen Rechtsschutz und Urheberrecht, GRUR e.V.), which is also responsible for a series of partner journals.

While the journal’s structural basis – despite an increase in its English content – has remained German up until now, the new journal, which is called „GRUR International – Journal of European and International IP Law” in full, will now be published entirely in English. The first issue of the refurbished journal was released in January. This step takes into account the fact that German has increasingly lost its role as an international language in the fields of law covered by the journal, especially among the new generation of legal scholars.

However, the basic concept of the leading international and comparative law journal in the field of Intellectual Property law remains unchanged. Once a month, GRUR International will continue to publish academic articles, reports, book reviews and, above all, a detailed case law section. The journal will still address developments in patent, copyright, trademark and competition law, with a particular focus on civil law countries in which English is not an official language. By translating important decisions from such jurisdictions, GRUR International will close a gap, enhancing their dissemination internationally.

Simultaneously with the change to publishing exclusively in English, GRUR International is introducing an independent peer-review process for all scholarly articles. The team of peer reviewers consists of around 50 specialized and highly qualified experts from all continents in the various subareas of IP and competition law. In addition to substantive criteria, geographical aspects and specific knowledge of the reviewers with regard to different countries also play an important role in the composition of the team.

The main publishing responsibility for GRUR International will lie, in future, with the internationally renowned publishing house Oxford University Press (OUP), which will also be responsible for sales outside the German-speaking countries. For subscribers from Germany, Austria and Switzerland, C.H. Beck-Verlag will remain responsible for the distribution of the printed magazine. Both publishers will operate independent online sites, through which selected parts of GRUR International’s content will be accessible.

To the first issue of the new GRUR International 

Study  |  12/11/2019

Science Quality and the Value of Inventions – New Study in Science Advances

The new study “Science Quality and the Value of Inventions” by researchers of the Institute has now been published in the journal Science Advances. The study shows a strong positive correlation between the scientific quality of research contributions and the economic value of patents based on these contributions.

Science Advances, 12/2019

Science governance and funding seek to promote excellent science output by allocating resources to those projects, researchers and institutions from which outstanding results are expected. But the commonly used measures for scientific quality, such as the number of citations, do not take into account the potential of scientific results for technology transfer and commercialization.

The findings of the new study “Science Quality and the Value of Inventions” by Poege et al. imply that what is considered excellent within the science sector also leads to outstanding outcomes in the technological and commercial realm. Excellent scientific articles are referenced in substantially more patent documents than articles with lower scientific quality. Patents with references to often-cited scientific contributions are of much higher commercial value than patents referring to less-cited publications.

The analysis comprises references to scientific contributions from 4.8 million patent families of the European Patent Office and the U.S. Patent and Trademark Office and approximately 43 million scientific publications in the Web of Science from the year 1980 onwards.

Previously known was the fact that patents with references to scientific publications are substantially more valuable than patents without a direct science link. The new study contributes the insight that the quality of the scientific bases is of crucial importance. Patents with references to excellent scientific publications are particularly valuable, while this does not apply to patents with references to low quality scientific publications.

The results indicate that quality measures commonly used in science can serve as good criteria for a system of science funding which simultaneously provides a basis for societal benefit and technological progress.

Science Advances is a peer-reviewed multidisciplinary open access journal published by the American Association for the Advancement of Science and complements the journal Science, referred to as Science Magazine, which has been published since 1880.

To the publication in Science Advances

The authors: Felix Poege Dietmar Harhoff Fabian Gaessler Stefano H. Baruffaldi

Suggested citation:

Poege, Felix; Harhoff, Dietmar; Gaessler, Fabian; Baruffaldi, Stefano (2019). Science Quality and the Value of Inventions, Science Advances, 5 (12), eaay7323 (11 December 2019). DOI: 10.1126/sciadv.aay7323

Research News  |  10/30/2019

Technical Aspects of Artificial Intelligence from an IP Perspective: 10 Questions - 10 Answers

A Research Group of the Institute’s legal departments is investigating the effects of Artificial Intelligence on Intellectual Property Law. A concise Q&A document with 10 questions and 10 answers examines technical aspects of Artificial Intelligence with potential relevance for IP law.

Machine Learning is currently the most important subfield of AI.

Artificial Intelligence (AI) changes - often invisibly - everyday life. In the field of IP law, however, AI raises new questions and challenges. A research project of the legal departments of the Max Planck Institute for Innovation and Competition led by Professor Reto M. Hilty and Professor Josef Drexl is investigating these issues.

The Research Group “Regulation of the Digital Economy” examines whether the existing IP system can fulfil its fundamental functions in the context of AI. Since a sound understanding of technology is indispensable for this task, the members of the group researched technical literature, conducted interviews with practitioners and organized a workshop with international AI researchers. The result is the present paper "Technical Aspects of Artificial Intelligence: An Understanding from an Intellectual Property Law Perspective".

The paper forms the basis for the group's ongoing legal research: How do current IP rights apply to AI? To what extent should the existing IP system be adjusted to adequately reflect social and economic changes due to AI?

Miscellaneous  |  10/25/2019

10 Years „Münchner Verfahren“ − Max Planck Researchers Carry Out an Evaluation of the Munich Proceedings in Patent Litigation

The regional court Munich I is one of only 12 German courts responsible for patent matters. For the past ten years, the “Münchner Verfahren” (Munich Proceedings in Patent Litigation) has been an important factor for Munich as a patent location. Researchers of the Institute will now carry out an evaluation of the procedure.

[Translate to english:]
Photo: Justiz Bayern.

With the European Patent Office (EPO), Federal Patent Court (BPatG), German Patent and Trademark Office (DPMA), institutions of the new Unified Patent Court (UPC), the Patent Attorney Chamber, numerous lawyers and patent attorneys, patent services as well as many innovative Bavarian companies with large patent portfolios, Munich applies as the “European Patent Capital”.

The regional court Munich I is one of only 12 German courts responsible for so-called patent matters, in particular patent infringement cases. As a rule, the plaintiff has the choice of which court to call. The regional court Munich I is third in terms of the number of entries behind Düsseldorf and Mannheim. An important factor for the patent location Munich is the “Münchner Verfahren” (Munich Proceedings in Patent Litigation).

Ten years after its introduction, the procedure is now to be evaluated in order to gain knowledge for future improvements. The scientific evaluation is carried out by the Max Planck Institute for Innovation and Competition as part of a research project.

As soon as the results are available, we will report.