适应人工智能快速发展的知识产权制度研究

基于深度学习算法的进步,人工智能逐渐有能力独立进行发明创造和文艺作品创作。本文主要探讨现行专利及著作权制度中规定的保护对象、权利人资格、专利及著作权的权属、侵权判定、侵权责任主体等对人工智能技术快速发展的适应及协调程度,研究指出：现有的专利和版权制度应当对人工智能的发明和作品持鼓励的态度,在排除不适宜作为专利或著作权保护对象的同时,人工智能的发明或作品的权利授予标准应当与人类的有所区分;相关权利人仍须对应自然人或法人,而非人工智能本身;相关专利侵权行为应包括间接侵权,同时应对人工智能作品安排“登记-授权”的著作权制度、参考临摹作品为人工智能绘画作品提供相应的授权使用制度等。本文还探讨了当前的专利法及著作权法在人工智能时代符合公平原则的程度,并提出解决方案：在“强人工智能时代”将人工智能的发明创造或作品作为公共财产,授予相应的开发者“数据处理权”作为一种新的邻接权,赋予人工智能创造物新的特别权利（Sui Generis）,修改专利法与著作权法中关于主要权利的相关规定等。     

The technological origins of radical inventions

This paper aims to trace down the origins of radical inventions. In spite of many theoretical discussions on the effect of radical inventions, the specific nature of radical inventions has received much less attention in the theoretical and empirical literature. We try to fill that void by an empirical investigation into the specific origins of radical inventions. We explore this issue by a close examination of 157 individual patents, which are selected from a pool of more than 300,000 patents. In contrast to the conventional wisdom that radical inventions are based less on existing knowledge, we find that they are to a higher degree based on existing knowledge than non-radical inventions. A further result that follows from our analysis is that radical inventions are induced by the recombination over more knowledge domains. The combination of knowledge from domains that might usually not be connected seems to deliver more radical inventions.     

Balancing breadth and depth of expertise for innovation: A 3M story

This study examines how inventors’ breadth and depth of expertise influence innovation in 3M, a company renowned for sustained innovation for over a century. While prior research tends to examine a single indicator – the technical success achieved by the inventor – our study differentiates between three indicators of a successful inventor: (1) the number of inventions generated; (2) the extent to which the inventor has a significant impact in his or her technical domain; and (3) the inventor's career success, in terms of the commercial value they have brought by converting their inventions into products that generate sales for commercial organizations. We found that breadth of inventor expertise relates to the generation of many inventions, but not necessarily to those that are technically influential. Depth of inventor expertise enables individuals to generate technically influential inventions, as measured by patents granted. However, both breadth and depth of expertise are required for innovators to be deemed highly valuable, based on their records of effectively converting inventions into commercially successful products. Our study extends prior research on innovation in two ways. We provide a comprehensive view of how inventors’ expertise influences innovation and also show how inventors with different expertise profiles can contribute in unique ways to their organization.     

Reconsidering the Bayh-Dole Act and the Current University Invention Ownership Model

The Bayh-Dole Act of 1980 provided U.S. universities with the right to commercialize employees’ inventions made while engaged in government-funded research. This paper argues that the current university invention ownership model, in which universities maintain de jure ownership of inventions, is not optimal either in terms of economic efficiency or for advancing the social interest of rapidly commercializing technology and encouraging entrepreneurship. We argue that this model is plagued by ineffective incentives, information asymmetries, and contradictory motivations for the university, the inventors, potential licensees, and university technology licensing offices (TLOs). These structural uncertainties can lead to delays in licensing, misaligned incentives among parties, and obstacles to the flow of scientific information and the materials necessary for scientific progress. The institutional arrangements within which TLOs are embedded have encouraged some of them to become revenue maximizers, rather than facilitators of technology dissemination for the good of the entire society.We suggest two alternative invention commercialization models as superior alternatives. The first alternative is to vest ownership with the inventor, who could choose the commercialization path for the invention. For this privilege the inventor would provide the university an ownership stake in any returns to the invention. The inventor would be free to contract with the university TLO or any other entity that might assist in commercialization. The second alternative is to make all inventions immediately publicly available through a public domain strategy or, through a requirement that all inventions be licensed non-exclusively. Both alternatives would address the current dysfunctional arrangements in university technology commercialization.     

Today's Edisons or weekend hobbyists: technical merit and success of inventions by independent inventors

We set out to determine if independent inventors can be considered “heroes” or “hobbyists”, that is, if they produce the most or the least influential inventions in a product category. We study patented inventions by independent and firm-based inventors by comparing patents along four dimensions: Patent citation impact, detail, scope, and maintenance. Examining 225 tennis racket patents granted in the US between 1981 and 1991, we find that independent inventors are a heterogeneous group who generate inventions that are overrepresented both among the most impactful and the least impactful patents. The metrics we develop provide insight into ex ante identification of the importance of inventions.     

Why are some independent inventors ‘heroes’ and others ‘hobbyists’? The moderating role of technological diversity and specialization

Despite a substantial body of research investigating the market significance of inventions by independent inventors, relatively little attention has been devoted to understanding their technological significance. A recent study conducted by [Dahlin, K., Taylor, M., Fichman, M., 2004. Today's Edisons or weekend hobbyists: technical impact and success of inventions by independent inventors. Res. Policy 33, 1167-1183] on the tennis racket industry shows that independent inventors are a heterogeneous group which includes both “heroes” who contribute substantially to technological progress and “hobbyists” who make only a marginal contribution. What is not asked - and therefore not explained - is why this distinction arises. In this paper, we focus on the type of prior technological knowledge (in terms of technological specialization and diversity) applied by independent inventors and their corporate counterparts as a factor explaining differences in technological impact. Our empirical setting is the field of medical equipment technology. We find that independent inventors are more sensitive to the negative effects of technological diversity than their corporate counterparts. Furthermore, our study reveals that technological specialization pays off more for independent inventors than for their corporate counterparts. Therefore, those independent inventors who apply low degrees of diversity and high degrees of specialization are capable of reaching the same level as or even outperforming their corporate counterparts, thus becoming “heroes”. Based on our findings, we discuss implications for research and corporate practice.     

Taking leaps of faith: Evaluation criteria and resource commitments for early-stage inventions

Successfully developed academic inventions have the potential to spawn new technological domains, form the basis of thriving business ventures, and improve the well-being of society. However, evaluating whether an early-stage scientific invention truly has such potential is extremely difficult, and financially backing such inventions is highly risky. And yet, organizations and their evaluators still back some of these inventions with resources for further development. We investigate this puzzle to pinpoint how and why evaluators decide to offer resource commitments at early stages, despite the red flags raised using standard evaluation criteria. Many academic inventions need these initial resources to dispel concerns regarding their commercial feasibility, so evaluators need to take a leap of faith with their support to prematurely avoid eliminating high-potential opportunities. We tested our theory using text analysis on nearly 700 invention evaluation reports written by a university’s technology transfer experts. Our results revealed that evaluators backed inventions based on their feasibility (overcoming doubt and assessing maturity) and desirability (background familiarity and scientific complexity). Using the context of the research laboratory, our study insights can be applied to many management situations in which early-stage opportunities are assessed for resource commitments under high uncertainty.     

The ability of European regions to diversify in renewable energies: The role of technological relatedness

Despite the global consensus about the growing significance of renewables, the regional drivers of innovation in these unique and novel technologies have been widely neglected in the literature. In this paper, we show that renewable energy (RE) inventions differ from other green inventions in the knowledge recombination processes leading to their generation as well as in their impact on subsequent inventions. The evidence on these specificities of RE technologies allows us hypothesizing that regional branching in renewables may rely on relatedness differently than other non-RE green technologies. In checking this hypothesis, we use a data set spanning the period 1981-2015 covering 277 European NUTS2 regions in the EU28 countries plus Norway. We obtain that relatedness is highly relevant in explaining regional specialization in RE, and more relevant than for other green technologies, which we associate to the lower generality in their impact and the narrower scope of the knowledge from which they nurture. This conclusion is maintained when considering separately regions with high and low development levels. However, the impact of relatedness increases for RE as the regional economic development decreases, signalling that a low endowment of resources and capabilities does not allow the region to break from its past technological specialization, depending more on relatedness. This would not be the case for other green technologies, probably due to their higher level of generality and wider scope.     

Knowledge path dependence,external connection,and radical inventions: Evidence from Chinese Academy of Sciences

Public research institutes (PRIs) have played an increasingly prominent role in leading radical inventions, which are considered a major source of long-term economic growth. However, there is little empirical evidence on the factors affecting radical inventions in PRIs, which have been at the forefront of scientific research and technological development. This study fills this gap by providing an empirical analysis of radical inventions at the Chinese Academy of Sciences (CAS), a conglomerate of PRIs in China. Based on a newly compiled data set on CAS patents, this study explores the effects of knowledge path dependence, external network connections, and their interactions on radical inventions in PRIs. Our empirical findings reveal that knowledge path dependence negatively affects radical inventions; there is an inverse U-shaped relationship between external network connections and radical inventions, and weak external connections can alleviate the hindrance originating from knowledge path dependence, thus prompting radical inventions.     

Private and social functions of patents: Innovation,markets, and new firms

This article provides a review of the private and social functions of patents using data and evidence from the economic and management literature. While patents provide incentives to invent by providing private protection to appropriate the returns on inventions, they also have broader effects. For example, in this paper we focus on the fact that they provide signals about the value of new firms, disclose information about the invention, and encourage the exchange of inventions and ideas in markets for technology. In order to better understand the relative importance of the implications of patents, patent agencies and stakeholders should invest to a greater extent in data collections or in creating the conditions for research designs and experiments that nail down causal effects and mechanisms. Available data are not created with these identification strategies in mind, which limits the questions that scholars can ask. Systematic studies that identify different effects of patents can provide the basis for rigorous evidence-based management and policy about patents. This would imply a wider shift from a world in which managerial and policy analysis is distinct from practice, to a world in which analysis and implementation are increasingly co-produced, and there is greater integration between them.     

The dark side of signals: Patents protecting radical inventions and venture capital investments

Patents are an important signal of the unobserved quality of young, innovative firms. We study patents that protect radical inventions associated with high earnings potential but also a high risk of failure. These previously disregarded signals convey positive and negative information simultaneously, i.e., strong signals that have a dark side. We argue that whether firms that send such signals are attractive investment targets for venture capital (VC) investors depends on the characteristics of the investors. Reputable VC investors are attracted to the strong quality signals of patents protecting radical inventions and are better able than other VC investors to deal with the dark side of these signals through syndication. These effects are stronger in the first financing round than in follow-on rounds, as the (positive and negative) informational value of patents protecting radical inventions diminishes over time as information asymmetries between young firms and prospective VC investors are reduced. We test these predictions using a sample of 759 young life science firms and 555 VC investors. Econometric estimates from a matching model support our predictions.     

Invention characteristics and the degree of exclusivity of university licenses: The case of two leading French research universities

This paper examines the determinants of university exclusive versus non-exclusive licenses. We specifically focus on the effect of the characteristics of the licensed invention (i.e. stage of development, specificity and appropriability). We rely on a unique and original dataset of 91 inventions contained in 62 intellectual property licensing contracts executed in the period of 2005–2014 by two leading French research universities. We cannot find a significant relation between the characteristics of the invention and the degree of exclusivity. In particular, as opposed to theoretical predictions, embryonic inventions are not significantly linked to more exclusive licenses and generic inventions are not significantly linked to non-exclusive licenses. Furthermore, inventions that are both generic and embryonic are not significantly linked to exclusive licenses per field of use. These results, although still exploratory, contribute to feed the discussion about the performance of university-industry technology transfer since they suggest that performance might be improved by taking more into account the characteristics of the licensed invention.     

Design and environmental technologies: Does ‘green-matching’ actually help?

This paper investigates whether a green kind of design helps firms increase their capabilities for inventing in the environmental domain and whether it does so more than ‘standard’ design. It also investigates whether the effect of ‘green-matching’ between new design and technologies is conditional on firms’ innovative capabilities, as reflected by their R&D expenditure. We address these research questions with respect to the world's top R&D investors, looking at their intellectual property rights at the United States Patent and Trademark Office (USPTO) and proposing an original textual identification of green designs and trademarks. We find that green design increases environmental inventions by top R&D investors, and to a greater extent than non-environmental ones. Standard design also stimulates environmental inventions, but to a lesser extent than green design. The ‘green-matching’ actually helps, but internal innovative capabilities are required to make it effective: a green-tech ‘prize’ emerges from green design, but only once a minimum threshold of R&D expenditure has been reached.     

The distinctive research of the individual inventor

While there is much opinion about the work of individual inventors — most of it either highly dismissive or hopelessly romantic — very little is actually known about their work or about what sort of individuals invent. This paper is based on the second of two research studies carried out in Australia. The first sought, by means of an extensive survey, to discover something about the characteristics and motivation of individuals who invent, or, more accurately, who apply for patents. The second built upon this work in an effort to determine whether the work of individuals was especially different from that of formal research units. Individual inventors do generally work in different areas from research units, but their work seems to be valued most by those units when it is most similar to the units' own research. However, when comparison can be made, the individual's work is regarded as less professional than formal research. Although research units seem to have little contact with individual inventors, do not usually hold their work in high esteem, and would normally be quite capable of devising their inventions within the unit, they do show an interest in the patents of individuals and sometimes license from them. Individual inventors are remote from the innovative process in which the research unit is expected to play a part. It remains uncertain whether the distinctive nature of their work makes it worthwhile drawing individual inventors closer to that innovative process.     

When is an invention really radical?: Defining and measuring technological radicalness

We develop a valid definition of technological radicalness which states that a successful radical invention is: (1) novel; (2) unique; and (3) has an impact on future technology. The first two criteria allow us to identify potentially radical inventions ex ante market introduction; adding the third condition, we can ex post determine if an invention served as an important change agent. Empirically testable condition selected 6 of 581 tennis racket patents granted between 1971 and 2001. Two of the identified patents - the oversized and the wide-body rackets - are considered radical inventions by industry experts. Applying our definition and operationalization would allow researchers to achieve greater generalizability across studies, avoid endogenous definitions of radicalness, and study predictors of market success for radical inventions.     

基于专利相似度的突破性技术发明识别研究——以纳米技术为例

随着我国发明专利申请数量的迅猛增加,如何通过事前和事后指标测度并识别技术和经济价值高的突破性技术发明就成为学术界面临的焦点问题。针对我国专利普遍缺乏引文信息的现状,本文利用专利的国际专利分类（IPC）信息构建两两专利相似度指标,并引入时间维度对过去、当前以及未来三个时间段的专利相似度比较,测度专利的新颖性、独特性和影响力,从而构建突破性技术发明的综合识别方案。然后,以纳米技术为例,利用美国专利商标局（USPTO）在1975-2015年的授权发明专利数据进行实证检验。结果表明：（1）基于专利IPC四位和六位分类的相似度指标分别可以识别出6.23%和5.06%的纳米技术专利为突破性技术发明;（2）基于专利相似度识别的突破性技术发明与基于专利被引数识别的突破性技术发明具有显著的正相关关系,但是,两类识别方法得到的结果中仅有不足总样本的0.5%是相同的,表明以往单纯依赖专利被引数据识别突破性技术发明可能存在一定偏差;（3）对突破性技术发明来源特征的实证检验表明,基于专利相似度和基于专利被引数的突破性技术发明的发明人和组织来源特征基本一致,而发明层面的知识来源特征呈现不一致的结果,进一步反映出两类识别方案的差异性。本文基于专利相似度构建的突破性技术发明识别方案既为企业在实践中挖掘和利用高价值的发明专利提供参考,也对未来突破性技术发明相关研究达成一致结论具有重要意义。     

Resolving the patents paradox in the era of COVID-19 and climate change: Towards a patents taxonomy

This paper revisits the patents debate and considers the role of intellectual property rights and their impact on society in the context of inventions designed to protect global common pool resources (CPRs) such as public health and the environment. A review of the theoretical and empirical literature suggests that there has never been a clear consensus among researchers on the benefits of the patent system and intellectual property rights. As Robinson notes, “The patent system introduces some of the greatest of the complexities in the capitalist rules of the game and leads to many anomalies.” We explore these anomalies by specifying a taxonomy of patents for different classes of inventions, including inventions to protect CPRs. This includes vaccines and inventions that reduce externalities, such as, CFC gases and greenhouse gas emissions. In these instances, the effectiveness of innovations depends critically on rapid global diffusion. Our theoretical analysis utilises Ostrom's CPR dilemma to analyse the complexities surrounding innovation and CPRs.We find that the effectiveness of innovations to protect CPRs depends on industrial characteristics and the wider regulatory environment. Empirical evidence is brought to bear on these conclusions via 2 case studies that each embodies a natural experiment; one on vaccines pre- and post-TRIPS and one on environmental technologies to reduce CFC gases and CO₂ emissions with and without an agreed UN Protocol. The insights gained are explored in our policy section. Our analysis suggests the need for a more nuanced approach to patent policy that is embedded in the wider context of innovation systems and takes account of the anomalies raised by CPRs. For CPR protecting innovations subject to positive network externalities, we advocate that policy should prioritise diffusion over private incentives for R&D and use alternative policies to patents to stimulate investment in R&D.     

Inside or outside the IP system? Business creation in academia

Research and public policy on academic entrepreneurship are largely based on the assumption that faculty members start businesses to commercialize inventions that have been disclosed to university administrators and have been patented. In this paper, we analyze a sample of 11,572 professors and find that much academic entrepreneurship occurs outside the university intellectual property system. Specifically, about 2/3 of businesses started by academics are not based on disclosed and patented inventions. Moreover, we show that individual characteristics, departmental and organizational affiliations, and time allocation of academics that have started business outside the IP system are different from those of academics that have started businesses to exploit disclosed and patented inventions. We discuss the implications for research on and the practice of academic entrepreneurship.     

Nest without birds: Inventor mobility and the left-behind patents

The mobility of inventors leaves behind their patented inventions at sourcing firms, yet there is little scholarly insight into how firms handle those intellectual properties. We investigate this important issue by developing a framework of tacit-codified knowledge interdependence. We theorize that tacit and codified knowledge offer the intellectual and legal pillars of corporate inventions, which complement each other in value creation. Inventor mobility decouples the two pillars and reduces the maintenance likelihood of the left-behind patents. The negative impact is greater for inventions that are complex or rely less on internal prior art because the tacit knowledge loss is more destructive and unrecoverable. However, when inventors move to competing or litigious target firms, the relationship between mobility and patent maintenance becomes less negative or even turns positive because the left-behind patents can be leveraged to hedge against the risk of knowledge leakage. Applying a two-stage Coarsened Exact Matching approach to construct a sample of 36,204 U.S. patents with comparable leaving and staying inventors from public firms between 1983 and 2010, we find strong evidence supporting our framework. Our findings highlight the intricate interdependence of tacit and codified knowledge in corporate inventions and add to the literatures on inventor mobility and intellectual property management.     

Patent systems for encouraging innovation: Lessons from economic analysis

Economic theory views patents as policy instruments aimed at fostering innovation and diffusion. Three major implications are drawn regarding current policy debates. First, patents may not be the most effective means of protection for inventors to recover R&D investments when imitation is costly and first mover advantages are important. Second, patentability requirements, such as novelty or non-obviousness, should be sufficiently stringent to avoid the grant of patents for inventions with low social value that increase the social cost of the patent system. Third, the trade-off between the patent policy instruments of length and breadth could be used to provide sufficient incentives to develop inventions with high social value. Beyond these three implications, economic theory also pleads for a mechanism design approach: an optimal patent system could be based on a menu of different degrees of patent protection where stronger protection would involve higher fees, allowing self-selection by inventors.