The paper examines art. 65 of the Italian industrial property code (c.p.i.), which regulates the attribution of IP rights on inventions developed inside universities. This rule has received much criticism in literature, which has repeatedly denounced its interpretative uncertainties, gaps, and contradictions.
Art. 65 c.p.i. draws on the Germanic model called ‘professor’s privilege’ (Hochschulleh- rerprivileg), under which the researchers are the owners of their developments. This rule does not allow the university to acquire the results of the research activity and is based on two considerations: (i) a conception that public research must produce general knowledge; (ii) unlike other companies, the universities are not subjected to competitive market pressures. However, the new funding allocation criteria are based on models that introduce competition between the different universities to obtain these resources, a dynamic that, although it is not entirely comparable to that which distinguishes the competition between companies operating in the free market, does not deny it. In this work, the author moves from a historical perspective, looking at the genesis of professor’s privilege in Germany (the legal system in which it was born) to abstract from it the functions to which this discipline was, at the time, ancillary. The historical argument will not be used here according to the so-called ‘hypothesis of the conservative legislator’; the historical argument is used through an empirical-descriptive procedure given a practical-normative explanation in a function key. In other words, this work intends to outline the original nature and functions of ‘professor’s privilege’ to understand whether those same functions can still today explain the allocative choice of rights of the researcher, or if in a changed context, which today sees the assertion of the model of so-called “university-entrepreneurial” the same rule is still functional concerning interests of a competitive nature. Once nature and functions to which the norm is preordained have been ascertained, this study will make some proposals for overcoming the gaps and contradictions it presents.
(Abstract a cura dell’Autore)