Inclusivity, Intellectual Property, and the IP Academy

Pascale Chapdelaine*, Associate Professor and Director of Windsor Law LTEC Lab, Chair in Law, Intellectual Property, & the Digital Marketplace 

Forthcoming book chapter to be published in the Liber Amicorum in honour of Dr. Geertrui Van Overwalle, (Intersentia, Antwerp, 2025). This version is not the final published version and is subject to change.

To many, inclusivity in Intellectual property (IP), an exclusionary tool, is an oxymoron. But likely not so for Geertrui Van Overwalle, who has spent a large part of her prolific academic career studying the benefits for inventors and creators of various collaboration and sharing models of IP: patent pools, creative commons, and other IP licencing arrangements. Dr. Van Overwalle’s inclination toward inclusivity is not only reflected in her scholarship. She exemplifies the openness, collaboration, and collegiality of the best kind.

In this short piece, I begin with a discussion on the relationship between inclusivity and IP, one of the main themes of this liber amicorum. In doing so, I will refer to Geertrui’s original contribution to this discussion published in 2015: “Inventing Inclusive Patents. From Old to New Open Innovation.”[1] I then consider inclusivity in the IP Law Academy as a way to highlight some of Geertrui’s distinct contributions as a professor and colleague.

Inclusivity and IP

Some definitions and context are needed to situate how I envision the relationship between inclusivity and IP, based on my own experience as a legal practitioner, researcher, and teacher. Etymologically, ‘inclusivity’ requires a deliberate act of involving others rather than a passive state of being.[2] The act of inclusion is desirable when exerted by a person or entity with power and something valuable to offer to another, and meaningful if such other person acts upon it as well.  Inclusivity is often associated with openness in innovation, some industries, and communities. However, ‘openness’ refers to something else. The state of something accessible, not enclosed, not restricted to a particular category of people or institutions.[3] Inclusiveness requires a concerted act, while openness is a state that may or may not be the result of a preceding action. In other words, inclusivity usually requires some degree of openness toward others, but openness does not necessarily involve a concerted act of incorporating others and their contributions in research and development endeavours. These definitions and distinctions are important when looking at IP, its exclusionary powers, and its connection with inclusivity.

IP, whether patents, copyright, trademarks, or plant breeders’ rights, confers on its right holder powers to exclude e.g.: from using a confusingly similar trademark with respect to similar goods, from making a device covered by a registered patent claim, or from reproducing a substantial part of a copyrighted work, and so on.

The tension between exclusivity and access to IP is embedded within human rights law[4], and well illustrated by the passionate debates on the theoretical justifications underpinning the protection of IP, whether right-based theories (e.g., desert-based or personhood theories), or utilitarian, instrumentalist theories.[5] 

What is the relationship between having the power to exclude through IP rights and inclusivity? This does not require looking into how for instance, statutory or judge-made law exceptions and limitations to IP exclusive rights (e.g., fair dealing, interoperability purposes, right to repair, etc…) may stimulate inclusivity. Exceptions and limitations create a space where IP exclusive rights do not apply and thus are out of scope when examining the correlation between IP and inclusivity.

For most IP rights, the power to exclude also entails the privilege not to do so, a critical feature to understanding IP and other proprietary rights. Except perhaps with respect to trademarks, whereby the right holder must enforce their trademark at the risk of losing their rights through dilution of the trademark, IP most often confers the power and flexibility for the right holder to not enforce their IP rights, without running the risk of losing such rights.  There may be as many good reasons not to enforce IP rights as there are to do so. This includes: preserving good business relations with business partners, suppliers, or customers; the time, cost, and uncertainty involved in litigation; and the fear that poking the competitor-infringer may come and bite the IP right holder, who may not be entirely in the clear regarding the competitor-infringer’s IP rights either. These are all good reasons why IP right holders may choose to not enforce their exclusive rights at any given point in time. Short of inclusiveness, the rationales to do nothing set intrinsic limits to the power to exclude. This is not to suggest that such inherent restraints on the exercise of those IP rights are optimal in the greater IP ecosystem of reward, use, and reuse. IP exclusionary rights confer strong powers that can be used at the right holder’s leisure. The use of someone’s IP without proper authorization entails risks and legal uncertainty for anyone in that situation.

More overt than the privilege not to enforce one’s IP rights is the right holder privilege to make one’s IP accessible through open licence models such as Creative Commons. [6] Under such models, right holders of copyright works voluntarily and explicitly make their works available to others, whether to individuals or organizations, as long as they agree to respect a list of conditions in how such works are used and further disseminated.[7] Here, the right holder takes more of an active step by making their works available through such licence model, than choosing to not enforce their rights in a specific instance. At the other end of IP sharing models are statutory compulsory licences whereby the right holder`s privilege to share their IP with or without compensation, is converted into an obligation to do so in specific circumstances, and is subject to the licensee respecting strict conditions that usually include monetary compensation to the right holder.[8] 

For its part, inclusion connotes something more active and concerted on the part of the right holder than letting their IP rights be by not enforcing them, or making them accessible through open sharing models.[9] Inclusion is also more subject to the other party(ies)’ willingness to act on the right holders’ invitation to be included. Unlike statutory compulsory licences, inclusion occurs with the volition of the right holder. Cross-licencing agreements and patent pools are good examples where IP and inclusivity not only co-exist but also define the relationships between the selected parties. The ability to include others by sharing existing or developing future IP depends on others’ agreement to be included and share in return. Meanwhile, the power to exclude remains an integral part of those frameworks against anyone outside the patent pool or cross-licencing circle, or against parties within the circle breaching the terms of IP sharing. This state of IP inclusivity goes only so far as that specific group is concerned.

In ‘Inventing Inclusive Patents’, Dr. Van Overwalle skillfully examines the vast literature on various sharing models of IP.[10] She correctly emphasizes how IP’s defining power to exclude underlies those sharing models and is often a condition sine qua none to the existence of such models. Dr. Van Overwalle and many other commentators refer to this as the paradox of excluding to include when it comes to IP and openness.[11] Rather than a paradox, one may on the contrary view inclusivity as the corollary of IP and other proprietary interests which generally confer powers to exclude. This is a hard truth for Dr. Van Overwalle and the many others in search of sustainable IP openness or inclusivity models, the ones that cannot be easily dismantled through the right holder re-exercising their power to exclude, or by another party having accessed the openly shared IP downstream and fencing it off through further IP protection.

Geertrui Van Overwalle’s bold proposal to develop a new system of ‘inclusive patents’ seeks to offer a more lasting alternative to IP sharing models relying on traditional patent exclusionary frameworks. With inclusive patents, openness and accessibility rather than exclusion become the baseline. Geertrui invokes a strong culture or ethos of collaboration in innovative communities, as the backdrop justification for developing this new inclusive patents’ stream. At the same time, she recognizes that open innovation models are not necessarily always more desirable in terms of increasing overall welfare, and that more empirical evidence and economic analysis are required to identify when openness is effectively more beneficial.[12] As someone who practiced IP law for several years, I witnessed firsthand the negative connotation that engineers and software developers sometimes attach to IP exclusionary powers, seen as counterproductive in the greater scheme of innovation and product development. I also saw how such collaboration culture could sometimes clash with business management objectives under which patent portfolios were viewed as assets to be grown and enforced against infringers.  

Through her proposed ‘inclusive patent’ system, an inventor could opt to file through the ‘inclusive patent’ stream for any given invention, an option co-existing with the traditional exclusionary patent system. Such ‘inclusive patent’ would confer a power to include with enforcement rights being limited against those who use these patent rights to exclude others.[13] In the spirit of accessibility and longevity, the ‘inclusive patent’ would be available at a lower cost than traditional patents, favouring a registration system over an examination-based process, with low registration fees, and a twenty-year period grant.[14] It is unclear whether the proposed system would be more of an  ‘open patent’ system requiring little active involvement of the patent holder toward the patent user than an ‘inclusive patent’ requiring a more active approach toward some collaboration on both sides.  

 What would be the real incentives to file for ‘inclusive patents’ and how they would co-exist with traditional patents are important questions that require further development. Without clear incentives for choosing the ‘inclusive patent’ stream, it seems that its co-existence with traditional patents would exacerbate rather than alleviate the exclude to include paradox or corollary embedded within IP. In other words, the traditional patent system offering the incentive of exclusivity in exchange for invention disclosure would remain the more attractive base for IP sharing models than the ‘inclusive patent’ stream.

In short, sharing, openness, and inclusivity towards one’s IP are privileges that derive from the right holder’s exclusionary powers. Such privileges may be exercised by choice or by necessity. Unlike sharing and openness, inclusivity requires more concerted actions both from the right holder and the beneficiary to be meaningful. In other words, the exercise of the privilege of inclusion requires more than the sole will of the right holder.  Dr. Van Overwalle’s valuable scholarly contributions shed more light on how inextricably imbricated exclusionary powers, openness, and inclusivity are when it comes to IP.

Inclusivity in Academia

There are obvious parallels to be drawn between IP and academia (more specifically the IP Law Academy) as it relates to inclusivity. Academia is a highly competitive environment. For students of all levels and for faculty, and at various stages: the selection and admission or hiring process, assessment, ranking, and promotions. Administrative decisions effectively give universities the power to exclude. There is a stark contrast between those who are appointed as faculty and those who are not, in terms of the opportunities such appointments offer for teaching and scholarship. Ditto regarding students being admitted to one university and not another, in education systems with a competitive selection process .[15] 

The comparisons may well stop here. Academic institutions have many distinct features and responsibilities as it relates to inclusivity that IP systems don’t share. For instance, in Canada’s post-secondary institutions and other parts of the world, inclusion is closely associated with diversity. At the institutional level, initiatives are put in place to address inequality (based on socio-economic, gender, ethnic, race, disability, gender identity, and other factors) and to prevent various forms of discrimination for students, faculty, and staff regarding determinant administrative decisions (admissions, hiring, promotions, etc…). This includes “Equity, Diversity, and Inclusion (EDI)” offices or task forces. Whether these initiatives are always successful is another matter. The objectives are laudable and ambitious, and the effective means to achieve them open for debate. They give rise to forums for discussion and processes whereby improvement can be tracked and measures for ameliorations put in place. Unfortunately, the very existence of these programs and the objectives they promote are increasingly under threat and have become highly politicized in the US and other parts of the world.

A university’s type of governance and management style is a highly determinant factor that directly impacts on inclusivity. Whether consultation frequently takes place before key decisions are made. Whether faculty council includes various constituents of a department. And whether important decisions, e.g. faculty appointments, promotions, course offerings, student experience, etc…require the approval (or majority vote) of those various parties, etc.. In that sense, and in contrast to our previous discussion about IP exclusionary powers and IP systems, universities, academia bear significant powers to create an inclusive environment…..or not.   

At the individual level, the concerted effort of a faculty member to include others in research projects, events, or any opportunity of exposure that can help their students or colleagues on their academic or professional path can make a world of difference. Especially to junior faculty or students in a supervision relationship, or at various other stages of their academic journey.  As such, the act of inclusion can be very powerful and positively impact a colleague or (graduate) student’s academic life. This brings me to the subject of this liber amicorum and to my personal encounter with Dr. Geertrui Van Overwalle.

I have known Dr. Van Overwalle, Geertrui since 2006. Thanks to Professor Franz Gotzen, who was at the time Director of the K.U. Leuven Centre for IP Rights, I was welcomed as a visiting scholar for the academic year 2006-2007. Geertrui was also affiliated to this Centre. I had and still have a special connection to the K.U. Leuven, having worked there in the nineties as a Research and Teaching Assistant for Professor Hans Van Houtte, and as alumna of their LL.M. program in European Union Law. And most importantly, the K.U. Leuven is where I met my husband, Trudo Lemmens, as we were two Research Assistants in the same department back then.

 Professionally, the year I first met Geertrui was a year of transition for me, taking distance from a successful law practice career toward something else, the contours of which were not entirely clear at that point.  I did not fit the traditional mold of an academic: no Ph.D., next to no publications, and no fixed position at a reputable University. Professor Van Overwalle was one of my first windows into the world of academia. Geertrui, as well as others at the Centre for IP Rights, welcomed me and my family with open arms, as if I already belonged. Geertrui attended to our needs, making sure we had everything we needed as temporary transplants from Canada to Belgium.

This inclusiveness was also palpable in the way Professor Van Overwalle worked with her doctoral students. I saw a scholar in action collaborating with a dynamic team of researchers and doctoral students whose ideas and contributions mattered. They were made to feel that they belonged through Geertrui’s words and actions. They have gone on to very successful academic careers afterward. This is a testimony of Geertrui’s mentorship and ability to nurture academic success, ensuring a strong legacy in the IP Academy. The fact that many if not most of her former doctoral students and researchers were involved one way or the other in the organization of the celebration to honour Geertrui in December 2023 also speaks for itself. The collaborative environment that she nurtured has led to lasting professional bonds and friendships. On the theme of diversity and inclusion, I note the large number of women who have benefited from Geertrui’s doctoral supervision and mentorship over the years. This is something for which Professor Van Overwalle is and should be particularly proud of.

I feel very fortunate to have encountered Geertrui on my academic path. She was an inspiration as I embarked on my academic journey, and continues to be to many others in the IP law Academy. While I have some reservations about the extent to which IP systems can effectively be a fertile ground for inclusivity, I have none when it comes to Geertrui’s commitment and success at actively creating nurturing learning environments for students and colleagues. Environments where others’ opinions and contributions matter, in the true fashion of inclusion and academic collaboration. Dank u Geertrui, en hartelijk gefeliciteerd!   

*Dr. Pascale Chapdelaine is an Associate Professor at the Faculty of Law, University of Windsor. Thank you to the organizers and participants at the Festschrift Workshop held on December 15, 2023 at the Faculty of Law of the K.U. Leuven in honour of Dr. Geertrui Van Overwalle coinciding with her celebration as emeritus professor. In particular thank you to Esther Van Zimmeren, Amandine Léonard and Arina Gorbatyuk for inviting me to contribute to this Liber Amicorum.

[1] Geertrui Van Overwalle, ‘Inventing Inclusive Patents. From Old to New Open Innovation’ in Peter Drahos, Gustavo Ghidini & Hanns Ullrich (eds), Kritika: Essays on Intellectual Property3 (Edward Elgar, vol. 1, 2015).

[2] The Oxford Dictionary defines ‘inclusion’ as ‘the action or an act of including something or someone’. And ‘to include’ as ‘to have, put in, or incorporate as part of a whole’ comprise or reckon in as part of a whole’ as well as ‘to invite, welcome, or encourage the involvement of (a person) in an activity, conversation, etc’. ‘Inclusion’ and ‘to include’ in Oxford English Dictionary <https://www.oed.com/> accessed 12 May 2025.

[3] The Merriam-Webster dictionary defines ‘openness’ as ‘having no enclosing or confining barrier: accessible on all or nearly all sides’; ‘not restricted to a particular group or category of participants’. ‘Openness’ in Merriam-Webster <https://www.merriam-webster.com/dictionary/openness> accessed 12 May 2025. The list of meanings for ‘openness’ is relatively long, however, these two definitions are the most relevant definitions of openness for the purpose of our discussion relating to IP.

[4] United Nations General Assembly, ‘Universal Declaration of Human rights, 1948 art. 27 and 26’ < https://www.un.org/en/about-us/universal-declaration-of-human-rights> accessed 27 June 2025(about the right to the protection of authors’ scientific, literary or artistic productions, as well as the right to education and to participate in cultural life, enjoy the arts and share in scientific advancement).

[5] See for example Edwin C. Hettinger, ‘Justifying Intellectual Property’ (1989) 18 Philosophy & Public Affairs 31; Jeremy Waldron, ‘From Authors to Copiers: Individual Rights & Social Values in Intellectual Property’ (1993) 69 Chicago-Kent Law Review 841.

[6] Creative Commons, ‘Share your Work’< https://creativecommons.org/share-your-work/> accessed 22 May 2025.

[7] Van Overwalle (n 1) 26-27.

[8] Ibid 16, 34.

[9] See n 2.

[10] Van Overwalle (n 1).

[11] Ibid 18. A large set of legal scholarship has recognized for quite some time now, that stepping into the property logic may be an essential prerequisite to maintain openness. Excluding to include is one of the major paradoxes in contemporary thinking on openness.

Ibid 42.

[12] Ibid 42.

[13]Ibid 29-32.

[14] Ibid 35-37.

[15] A variety of scholarly works explore issues of diversity and inclusion in law schools and in the IP Law Academy. See Irene Calboli & Srividhya Ragavan, Diversity in Intellectual Property: Interests, Identities and Intersections (Cambridge: Cambridge University Press, 2015); James Lindgren, ‘Measuring diversity: law faculties in 1997 and 2013’ (2016) 39:1 Harvard Journal of Law and Public Policy 89; Shontavia Johnson et al, ‘Diversifying Intellectual Property Law: Why Women of Color Remain “Invisible” and How to Provide More Seats at the Table’ (2018) 10:4

Landslide 14; Meera E Dao, Unequal Profession Race and Gender in Legal Academia (Stanford: Stanford University Press, 2019);  Kenneth Oldfield, ‘Structural Nepotism: On the Reluctance of Law Schools to Include Social Class Origins among their Faculty Diversity Goals’ (2020) 69:2 Journal of Legal Education 239