Intellectual Property and the Principle of Proportionality

Intellectual Property and the Principle of Proportionality is a book in which a group of distinguished international scholars and practitioners provides in-depth analysis and critical assessment of how legislation, substantive law, and enforcement provisions, as understood in international and European law, affect the application of the principle of proportionality to intellectual property rights. As a core principle of law in general, proportionality aims at achieving a mutually acceptable balance between different and competing interests. In the case of intellectual property rights, these are the interests of rights owners, competitors, consumers, and the public at large.

The book presents twelve papers, as revised and updated, originally presented at conferences of the Institute of European Studies of Macau (IEEM). The subjects covered include the following:

• substantive intellectual property law with regard to limitations, separation of powers, evidentiary rules, and bad faith registrations;
• the so-called three-step test and fair use in the field of copyrights;
• abuse and bad faith in the field of trade mark law;
• the burden of proof for process patents;
• confidentiality in intellectual property proceedings versus tension with access to justice;
• assessments where assertion of infringement subsequently proves unfounded;
• intellectual property rights as instruments of artificial scarcity; and
• judicial review of proportionality.

  One chapter attaches special importance to the application of proportionality in the context of the Unified Patent Court.

Linking proportionality not only to the area of enforcement but to the whole field of intellectual property, the book allows the reader to appreciate this principle as one that permeates the whole system of intellectual property rights and acts as a safeguard against overly broad rights at the expense of the commons. Practitioners, academics, and policymakers worldwide will benefit from its holistic approach to the principle of proportionality in an international and comparative context.