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@article{aggarwal2009modes,
jstor_articletype = {research-article},
title = {Modes of Cooperative R&D Commercialization by Start-Ups},
author = {Aggarwal, Vikas A. and Hsu, David H.},
journal = {Strategic Management Journal},
jstor_issuetitle = {},
volume = {30},
number = {8},
jstor_formatteddate = {Aug., 2009},
pages = {pp. 835-864},
url = {http://www.jstor.org/stable/20536081},
ISSN = {01432095},
abstract = {This study empirically examines the determinants of heterogeneous firm-level cooperative R&D commercialization strategies. While the volume of interfirm collaboration has increased dramatically in recent decades, the determinants of firm-level choices among alternate modes of such cooperative activity remain relatively understudied. We develop a conceptual model of factors determining collaborative mode choice at the organizational portfolio level. These factors include the firm-level appropriation environment, in which deal-level choices have portfolio-level spillover implications, as well as governance capabilities developed by the firm over time. Using a random sample of innovating biotechnology start-ups, we assemble a firm-year panel dataset that aggregates transaction-level collaboration data to the firm-year level, allowing us to characterize firms' portfolios of collaborative deals. We find broad empirical support for our model, suggesting that a firm's appropriation environment and governance capabilities strongly influence portfolio-level collaboration mode choices. In addition, we explore the implications of governance capability development, finding that experience with particular modes, as well as deviations from existing capabilities, impact firm valuation.},
language = {English},
year = {2009},
publisher = {Wiley},
copyright = {Copyright © 2009 Wiley},
filename={Aggarwal Hsu (2009) - Modes Of Cooperative R And D Commercialization By Start Ups.pdf}
}
Econ: Empirical Biotech
Biotech: all firms in Standard Industrial Classification
(SIC) codes 2833–2836 located in the United
States that have conducted an initial public offering
(IPO)17 in the past 25 years. From this list of
468 firms, we randomly select 117 for our sample.
A firm’s patent portfolio can enable the
firm to mitigate appropriation concerns that arise
across multiple deals. This occurs when patents
are not specific to an individual deal, but rather
apply across multiple technology commercialization
projects. Such an intellectual property portfolio
can thus act as a ‘patent thicket’ (Shapiro,
2000), making it more difficult for collaborative
partners to expropriate the innovating firm’s technology.
11 The degree of protection afforded by
such a portfolio will, of course, necessarily be
dependent on the degree to which patents are relevant
across multiple commercialization projects.
While the prior literature has discussed patent thickets in
the context of fragmented markets for intellectual property, we
conceptualize an analogous situation with the innovator holding
a stock of interrelated patents that deters potential expropriation
of a range of related products, a situation especially relevant
for start-up innovators, as most such firms confine their product
development to a single or small number of related products for
resource reasons.
@article{allison2003business,
title={The Business Method Patent Myth},
author={Allison, J.R. and Tiller, E.H.},
journal={Berkeley Tech. LJ},
volume={18},
pages={987},
year={2003},
publisher={HeinOnline},
filename={Allison Tiller (2003) - The Business Method Patent Myth.pdf}
}
Law: Empirical: Business Method Patents
In other words, many closely related patents may cover a single product, making
it much more difficult for competitors to invent noninfringing substitutes. Patent
thickets increase the probability of “hold-up” licensing, that is, exercising the ability to
charge a premium for patent licenses in the case of technologies in which competitors
have already invested heavily. Id. A patent thicket is just one instance of portfolio value,
because a group of patents on related technologies can have a value greater than the sum
of its parts even if the patents do not create overlapping rights in the same product.
Our initial search for all patents issued from the beginning of 1990 to
the end of 1999 that included the terms “Internet or World Wide Web”
yielded over 9,000, most of which used these terms in an incidental
fashion (such as a cite to a piece of prior art on the Internet).149 Although a
survey of these patents found a few initially promising candidates in older
computer industry classifications such as 345, 365, 370, and 375, we
found by far the heaviest concentration in the newer 700-series “data
processing” or “electrical computer” classifications.150 In particular, most
contenders for inclusion appeared in Class 705, 707, and 709.151
@article{aoki2008promoting,
title={Promoting access to intellectual property: patent pools, copyright collectives, and clearinghouses},
author={Aoki, R. and Schiff, A.},
journal={R\&d Management},
volume={38},
number={2},
pages={189--204},
year={2008},
publisher={Wiley Online Library},
filename={Aoki Schiff (2008) - Promoting Access To Intellectual Property.pdf}
}
Econ: Theory: Pools, Collectives, Clearinghouses. ICT and Biotech.
In the context of patents, a proliferation of IP
rights may result in a ‘patent thicket’ (Shapiro,
2001) that can increase costs for downstream
activities such as cumulative innovation and the
development of new products that combine multiple
existing innovations.
For example, development of a new
genetic diagnostic test typically requires licenses
to a number of patents on gene sequences and
related technologies (Scherer, 2002). The greater
the number of licenses required, the greater the
cost of developing the new test. This paper is
concerned with ways in which these costs can be
reduced so that markets for technology can function
more efficiently.
@inproceedings{arundel2003strategic,
title={Strategic patenting},
author={Arundel, A. and Patel, P.},
booktitle={Background report for the Trend Chart Policy Benchmarking Workshop" New Trends in IPR Policy},
year={2003},
filename={Arundel Patel (2003) - Strategic Patenting.pdf}
}
Policy
One of the worst-case outcomes of the patenting strategies of private firms is the
creation of an ‘anti-commons’ in which the necessary knowledge to conduct further
research is covered by a large number of patents held by a large number of firms. This
has been called a patent thicket, or a “dense web of overlapping intellectual property
rights that a company must hack its way through in order to actually commercialize
new technology” (Shapiro, in press).
@article{balasubramanian2011what,
jstor_articletype = {research-article},
Title = {What Happens When Firms Patent? New Evidence From U.S. Economic Census Data},
author = {Balasubramanian, Natarajan and Sivadasan, Jagadeesh},
journal = {The Review of Economics and Statistics},
jstor_issuetitle = {},
volume = {93},
number = {1},
jstor_formatteddate = {February 2011},
pages = {pp. 126-146},
url = {http://www.jstor.org/stable/23015924},
ISSN = {00346535},
abstract = {We build a new concordance between the NBER Patent Data and U.S. Census microdata and use it to examine what happens when firms patent. We find strong evidence that increases in patent stock are associated with increases in firm size, scope, and skill and capital intensity. We find somewhat weaker evidence that changes in patenting are positively correlated with changes in total factor productivity. We also analyze firsttime patentees and find similar effects following initial patent application. Together, these results suggest that patenting is indeed associated with real changes within firms, in particular with growth through increases in scope.},
language = {English},
year = {2011},
publisher = {The MIT Press},
copyright = {Copyright © 2011 The MIT Press},
filename={Balasubramanian Sivadasan (2011) - What Happens When Firms Patent.pdf}
}
Econ: Empirical: Cross industry, large scale, TFP
We find strong evidence that increases in patent stock are associated
with increases in firm size, scope, and skill and capital intensity. We
find somewhat weaker evidence that changes in patenting are positively
correlated with changes in total factor productivity. We also analyze firsttime
patentees and find similar effects following initial patent application.
Together, these results suggest that patenting is indeed associated with real
changes within firms, in particular with growth through increases in scope.
@article{baluch2005re,
title={In re Kumar: the first nanotech patent case in the federal circuit},
author={Baluch, A.S. and Radomsky, L. and Maebius, S.B.},
journal={Nanotech. L. \& Bus.},
volume={2},
pages={344},
year={2005},
publisher={HeinOnline},
filename={Baluch Radomsky Maebius (2005) - In Re Kumar The First Nanotech Patent Case In The Federal Circuit.pdf}
}
Law: Nanotech
For example, a claim in a later patent may cover a new and nonobvious improvement on a basic invention
claimed in an earlier patent. In this case, both patents would properly cover the improved product. A large number
of patents containing overlapping claims which cover the same product are often referred to as a "patent thicket."
@article{bargill2003thevalue,
jstor_articletype = {research-article},
title = {The Value of Giving Away Secrets},
author = {Bar-Gill, Oren and Gideon Parchomovsky},
journal = {Virginia Law Review},
jstor_issuetitle = {},
volume = {89},
number = {8},
jstor_formatteddate = {Dec., 2003},
pages = {pp. 1857-1895},
url = {http://www.jstor.org/stable/3202368},
ISSN = {00426601},
abstract = {},
language = {English},
year = {2003},
publisher = {Virginia Law Review},
copyright = {Copyright © 2003 Virginia Law Review},
filename={BarGill Parchomovsky (2003) - The Value Of Giving Away Secrets.pdf}
}
Law: Cummulative Innovation -> give away rights can be best
In growingn umbersf, irmse lect to foregop atentp rotection,
a nd choose instead to publishp otentiallyp atentabler esearchf
inding
Indeed, from an ex post perspective, the original inventor would prefer a broader patent. The ex post perspective is deceptive, how- ever, since it presumes the existence of the cumulative invention- an existence which cannot be taken for granted. Generally, the cumulative inventor would need to sink substantial development costs before she can approach the original inventor and bargain for a license. Therefore, if a broad patent protects the original inven- tion and, consequently, the cumulative inventor expects to be held- up in the bargaining stage, she might decide to forego the cumula- tive invention altogether. Critically, the breadth of the original pat- ent determines the division of surplus between the original and
cumulative inventors.5 If the share that the cumulative inventor ex- pects to receive does not cover her ex ante development costs, then the cumulative invention will not be developed in the first place. This result is clearly detrimental not only to the cumulative inven- tor, but also to the original inventor
@article{baron2010patent,
title={Patent quality and value in discrete and cumulative innovation},
author={Baron, J. and Delcamp, H.},
journal={CERNA Working Paper},
number={2010-07},
year={2010},
filename={Baron Delcamp (2010) - Patent Quality And Value In Discrete And Cumulative Innovation.pdf}
}
Econ: Empirical: Patent quality and value in discrete vs. cummulative innovation
Patent thickets are webs of overlapping and mutually blocking patents held by different
owners. Mutually blocking patent rights result from cumulative innovation, where no
technological component can be marketed individually without the technological
complements potentially protected by patent rights of different companies.
@article{baron2010strategic,
title={Strategic inputs into patent pools},
author={Baron, J. and Delcamp, H.},
journal={Cerna working paper},
year={2010},
filename={Baron Delcamp (2010) - Strategic Inputs Into Patent Pools.pdf}
}
Econ: Emprical Pools
The patent thicket describes a situation in which
holders of different patents that are all necessary for complying with a standard mutually block
each other in the implementation of the standard.
We have produced a unique database of 7 patent pools with 8046 patent observations: DVD6C,
MPEG2, MPEG4 Systems, MPEG4 Visuals, AVC H/264, IEEE 1394 and DVB-T.
@inproceedings{baron2011patent,
title={Patent Pools and Patent Inflation},
author={Baron, J. and Pohlmann, T.},
booktitle={Conference Proceedings: 4th ZEW Conference on the Economics of Innovation and Patenting},
year={2011},
filename={Baron Pohlmann (2011) - Patent Pools And Patent Inflation.pdf}
}
Econ: Empirical Pools
Building upon theoretical propositions drawn from
Dequiedt and Versaevel (2007) and a database of 64.619 declarations of essential patents
to major international Standard Developing Organizations (SDO), we investigate how
patent pools influence the number of patents on a standard over time
Shapiro, 2001 def.
@article{barpujari2010patent,
title={The patent regime and nanotechnology: issues and challenges},
author={Barpujari, I.},
journal={Journal of Intellectual Property Rights},
volume={15},
number={3},
pages={206--213},
year={2010},
filename={Barpujari (2010) - The Patent Regime And Nanotechnology Issues And Challenges.pdf}
}
Law: Nanotech
Building upon theoretical propositions drawn from
Dequiedt and Versaevel (2007) and a database of 64.619 declarations of essential patents
to major international Standard Developing Organizations (SDO), we investigate how
patent pools influence the number of patents on a standard over time
@article{bawa2007nanotechnology,
title={Nanotechnology patent proliferation and the crisis at the US Patent Office},
author={Bawa, R.},
journal={Alb. LJ Sci. \& Tech.},
volume={17},
pages={699},
year={2007},
publisher={HeinOnline},
filename={Bawa (2007) - Nanotechnology Patent Proliferation And The Crisis At The Us Patent Office.pdf}
}
Law: Nanotech Discussion
Not Copyable
@article{bessen2003patent,
title={Patent thickets: Strategic patenting of complex technologies},
author={Bessen, J.},
journal={Available at SSRN 327760},
year={2003},
filename={Bessen (2003) - Patent Thickets Strategic Patenting Of Complex Technologies.pdf}
}
Econ (weak): Theory of thickets
These occur when each
product may involve many patents, in contrast with the one-to-one correspondence between
products and patents that is assumed in the patent race literature. Recent commentators suggest
that lower patenting standards encourage patent thickets, creating difficulties for innovators (see
Gallini, 2002, for a review). When innovators must negotiate with large numbers of
patentholders, they may face excessive transaction costs (Heller and Eisenberg, 1998), “holdup,”
and problems of vertical monopoly (Shapiro, 2001).
@article{bessen2008value,
title={The value of US patents by owner and patent characteristics},
author={Bessen, J.},
journal={Research Policy},
volume={37},
number={5},
pages={932--945},
year={2008},
publisher={Elsevier},
filename={Bessen (2008) - The Value Of Us Patents By Owner And Patent Characteristics.pdf}
}
Econ: Empirical: Thicketing may add to patent value
A
larger number of patents may simply reflect that an owner is protecting more inventions with patents,
or that owner may be “fencing” off the technology by patenting possible substitute technologies or
building a patent “thicket.”
@article{bergman2007global,
title={The global stem cell patent landscape: implications for efficient technology transfer and commercial development},
author={Bergman, K. and Graff, G.D.},
journal={Nature biotechnology},
volume={25},
number={4},
pages={419--424},
year={2007},
publisher={Nature Publishing Group},
filename={Bergman Graff (2007) - The Global Stem Cell Patent Landscape.pdf}
}
Biology: Stem Cells (could give rise to thickets)
Given the particular characteristics of stem
cells as a broadly enabling technology, many
expect the field to be particularly susceptible
to the emergence of a patent thicket8–13, also
known in property rights theory as an ‘anticommons’
14. In a patent thicket, the existence
of many overlapping patent claims can cause
uncertainty about freedom to operate, impose
multiple layers of transaction costs and stack
royalty payments beyond levels that can be
supported by the value of single innovations.
By blocking pathways to market and dampening
investor interest in commercialization,
a patent thicket has the potential to slow and
skew the overall development of new technical
applications.
@article{blind2009influence,
title={The influence of strategic patenting on companies’ patent portfolios},
author={Blind, K. and Cremers, K. and Mueller, E.},
journal={Research Policy},
volume={38},
number={2},
pages={428--436},
year={2009},
publisher={Elsevier},
filename={Blind Cremers Mueller (2009) - The Influence Of Strategic Patenting On Companies Patent Portfolios.pdf}
}
Econ: Effects of strategic patenting
Furthermore, an observed offensive
blocking strategy results in frequent oppositions and rather limited citations of a
company’s patent portfolio. Such a strategy could also lead to “patent thickets”,
@article{braun2007barriers,
title={Barriers to user innovation: moving towards a paradigm of'licence to innovate'?},
author={Braun, V. and Herstatt, C.},
journal={International Journal of Technology, Policy and Management},
volume={7},
number={3},
pages={292--303},
year={2007},
publisher={Inderscience},
filename={Braun Herstatt (2007) - Barriers To User Innovation.pdf}
}
Econ: Discussion based on seed-breeding
An investigation of the barriers that users face when attempting to innovate is nevertheless lacking completely. In this paper, we attempt to fill this gap by discussing various factors that can prevent users from innovating. The evolution of the seed-breeding industry will be used for illustration purposes. We will argue that the barriers to user innovation seem to be progressing, potentially indicating that a paradigm change may be imminent.
This refers to an overlapping set of IPRs, which requires those seeking to commercialise new technologies to obtain licences (Shapiro, 2001). It exists in many industries, such as in semiconductors and biotechnology (Hall and Ziedonis, 2001; Heller and Eisenberg, 1998).
@article{brenner2009optimal,
title={Optimal formation rules for patent pools},
author={Brenner, S.},
journal={Economic Theory},
volume={40},
number={3},
pages={373--388},
year={2009},
publisher={Springer},
filename={Brenner (2009) - Optimal Formation Rules For Patent Pools.pdf}
}
Econ: Theory: Model of pool formation
No real mention of thickets but builds off complementary patents
@article{burk2003policy,
title={Policy levers in patent law},
author={Burk, D.L. and Lemley, M.A.},
journal={Va. L. Rev.},
volume={89},
pages={1575},
year={2003},
publisher={HeinOnline},
filename={Burk Lemley (2003) - Policy Levers In Patent Law.pdf}
}
Law: Theory - Direct discussion of thicket problem
Closely related to the problem of complementarity is the prob- lem of horizontal overlaps between patents.122 Patents are fre- quently broader than the products the inventors actually make. Multiple patents often cover the same ground, sometimes as an in- tentional result of the patent system"' and sometimes because pat- ents regularly issue that are too broad or tread on the prior art.'24 Various parties may be able to lay claim to the same technologies or to aspects of the same technology. Carl Shapiro has termed this overlap of patent claims the "patent thicket." 125
@article{calderini2006standardisation,
title={Standardisation in the ICT sector: The (complex) interface between antitrust and intellectual property},
author={Calderini, M. and Giannaccari, A.},
journal={Econ. Innov. New Techn.},
volume={15},
number={6},
pages={543--567},
year={2006},
publisher={Taylor \& Francis},
filename={Calderini Giannaccari (2006) - Standardisation In The Ict Sector.pdf}
}
Econ/Policy: Discussion: Stardardization in ICT
It is obvious that the characteristics of the aforementioned technological paradigm determine
a complex network of intertwined property rights to which a company intending to
develop a new product must access. This network is defined a patent thicket (Shapiro, 2001).
A patent thicket consists of a number of adjacent and overlapping property rights, which
impose on whoever wishes to use certain intermediate goods to ask for licenses from several
patent holders. Obviously, this frequently results in high monetary and transaction costs. The
entity of such costs is often so great as to discourage innovative activity in the downstream
phases of the innovation process. This finding represents a real turning over of one of the
funding concepts of the economics of intellectual property rights, according to which a tighter
enforcement of intellectual property rights favours innovative activity. Contrarily, in the presence
of cumulative and systemic innovative activities, there are reasons to believe that too
strict intellectual property rights would lead to perverse effects on innovative activity within
the industry.
@article{calderini2004intellectual,
title={Intellectual property rights as strategic assets: the case of European patent opposition in the telecommunications industry},
author={Calderini, M. and Scellato, G.},
journal={CESPRI, Cen tre for Research on Innovation and Internationalisation, Universita'Bocconi, Working Paper},
volume={158},
year={2004},
filename={Calderini Scellato (2004) - Intellectual Property Rights As Strategic Assets.pdf}
}
Econ: Discussion: Close to Mexican Standoff
We suggest that in an industry characterised
by strong technological complementarities the distribution of patent rights may induce
situations of mutual hold-up among innovators. The risk of retaliation through countersuits
represents a credible threat that can eventually favour the instauration of collusive
behaviours. Our results confirm this hypothesis, since the occurrence of patent
oppositions among large incumbents is significantly lower than industry average.
No explicit definition.
@article{carnabuci2009knowledge,
jstor_articletype = {research-article},
title = {Knowledge Specialization, Knowledge Brokerage and the Uneven Growth of Technology Domains},
author = {Carnabuci, Gianluca and Bruggeman, Jeroen},
journal = {Social Forces},
jstor_issuetitle = {},
volume = {88},
number = {2},
jstor_formatteddate = {December 2009},
pages = {pp. 607-641},
url = {http://www.jstor.org/stable/40645818},
ISSN = {00377732},
abstract = {Why do certain domains of knowledge grow fast while others grow slowly or stagnate? Two distinct theoretical arguments hold that knowledge growth is enhanced by knowledge specialization and knowledge brokerage. Based on the notion of recombinant knowledge growth, we show that specialization and brokerage are opposing modes of knowledge generation, the difference between them lying in the extent to which homogeneous vs. heterogeneous input ideas get creatively recombined. Accordingly, we investigate how both modes of knowledge generation can enhance the growth of technology domains. To address this question, we develop an argument that reconciles both specialization and brokerage into a dynamic explanation. Our contention is that specializing in an increasingly homogeneous set of input ideas is both more efficient and less risky than brokering knowledge. Nevertheless, specializing implies progressively exhausting available recombinant possibilities, while brokerage creates new ones. Hence, technology domains tend to grow faster when they specialize, but the more specialized they become, the more they need knowledge brokerage to grow. We cast out our argument into five hypotheses that predict how growth rates vary across technology domains.},
language = {English},
year = {2009},
publisher = {Oxford University Press},
copyright = {Copyright © 2009 Social Forces, University of North Carolina Press},
filename={Carnabuci Bruggeman (2009) - Knowledge Specialization Knowledge Brokerage.pdf}
}
Econ/Soci: Theory and empirics
Might provide an interesting counter to the measures...
the present study extends our understanding of how public technological knowledge accumulate
Our analysis showed that the process of recombinant growth driving the accumulation of public technological knowledge is far from combinatorially unconstrained. Rather, at any point in time, the rate of future accumulation of public technological knowledge is affected in important and predictable ways by the extent to which the body of accumulated prior knowledge in a technology domain is specialize
@article{carrier2002antitrust,
title={Why Antitrust Should Defer to the Intellectual Property Rules of Standard-Setting Organizations: A Commentary on Teece \& (and) Sherry},
author={Carrier, M.A.},
journal={Minn. L. Rev.},
volume={87},
pages={2019},
year={2002},
publisher={HeinOnline},
filename={Carrier (2002) - Why Antitrust Should Defer To The Intellectual Property Rules Of SSOs.pdf}
}
Econ/Law (Commentary on Teece/Sherry).
No definition of thickets.
@article{carrier2012roadmap,
title={A Roadmap to the Smartphone Patent Wars and FRAND Licensing},
author={Carrier, M.},
journal={CPI Antitrust Chronicle},
volume={2},
year={2012},
filename={Carrier (2012) - A Roadmap To The Smartphone Patent Wars And Frand Licensing.pdf}
}
Law: Smartphone wars (short)
No def
@article{choi2005live,
title={Live and let live: A tale of weak patents},
author={Choi, J.P.},
journal={Journal of the European Economic Association},
volume={3},
number={2-3},
pages={724--733},
year={2005},
publisher={Wiley Online Library},
filename={Choi (2005) - Live And Let Live A Tale Of Weak Patents.pdf}
}
Econ: Theory: Substitute patents
The lack of rigorous scrutiny in the examination process - in conjunction
with the recent explosion of patents granted - has led to a serious concern that
the current patent system may impede, rather than promote, innovation by creating
a "patent thicket" (Shapiro 2001; Gallini 2002; Bessen 2003).
@article{clark2008fragmented,
jstor_articletype = {research-article},
title = {Fragmented Property Rights and Incentives for R&D},
author = {Clark, Derek J. and Konrad, Kai A.},
journal = {Management Science},
jstor_issuetitle = {},
volume = {54},
number = {5},
jstor_formatteddate = {May, 2008},
pages = {pp. 969-981},
url = {http://www.jstor.org/stable/20122444},
ISSN = {00251909},
abstract = {Where product innovation requires several complementary patents, fragmented property rights can limit firms' willingness to invest in R&D. We consider the research intensity in multiple simultaneous R&D contests and how it depends on whether firms already hold relevant patents as well as the availability of an option to invent around. A measure of technological uncertainty is also analyzed. The multiple patent product involves an important hold-up problem that can reduce the overall R&D effort. Invent-around options moderate this problem. We also analyze targeted equilibria in which the aim of R&D can be to hold up a rival.},
language = {English},
year = {2008},
publisher = {INFORMS},
copyright = {Copyright © 2008 INFORMS},
filename={Clark Konrad (2008) - Fragmented Property Rights And Incentives For R And D.pdf}
}
Econ: Theory: Model of cummulative innovation where fragmentation is endogeneous?
Complementarity of multiple patents has been identified
recently—by academics and industry practitioners—
as a potential problem, particularly in
biotechnology and other nascent industries based on
complex technologies. We have considered the incentives
for cumulative R&D effort if firms need several
complementary patent rights for producing multicomponent
products. Complementarity weakens the
incentives to invest in R&D effort. Intuitively, when
many complementary patents are needed to produce
a particular multicomponent good, a firm will very
likely fail to obtain all patents even if it invests heavily
in each of the single patent contests. At the same
time, holding a single patent secures the firm veto
power, and its payoff is therefore the same whether
it holds one, two, or even all but one of the patents.
This makes it less worthwhile to spend much effort
trying to win all the simultaneous contests. This effect
is strengthened if there is technological uncertainty
regarding whether each single patented innovation is
technically feasible and is weakened if patents have a
commercial value apart from the complementary use
in the multicomponent application.
When some firms already hold some patents in
their portfolios and others do not, this yields some
secure payoff to the leading firms. Although this is
good news for owners of firms that already hold large
stocks of patents, such stocks also yield a disincentive
for these leading firms to invest in ongoing patent
contests, unless only one patent remains unwon.
With a large number of further patents, the leading
firms are discouraged from participating in these
contests. The reason for this discouragement effect is
very different from Arrow’s well-known replacement
effect by which a new, superior patent invalidates
an incumbent firm’s existing one. Instead, the strategic
game becomes asymmetric because the firm that
has a nonempty portfolio still needs to win all further
patents to make the multicomponent product as
a monopolist, whereas the competing firm needs to
win only one of these further patents to secure some
of the monopoly profit.
@article{clarkson2004objective,
title={Objective Identification of Patent Thickets: A Network Analytic Approach},
author={Clarkson, G.},
journal={Harvard Business School Doctoral Thesis},
year={2004},
filename={Clarkson (2004) - Objective Identification Of Patent Thickets A Network Analytic Approach.pdf}
}
Law: Theory and cases: CORE THICKET PAPER
Despite all that has been written about patent thickets,2 an objective methodology for
verifying the existence of a patent thicket has never been developed. Throughout the last 150
years, however, organizations have stumbled into a number of patent thickets and have
occasionally responded by constructing patent pools, which this paper defines as organizational
structures where multiple firms collectively aggregate patent rights into a package for licensing,
either among themselves or to any potential licensees irrespective of membership in the pool.
Such collaboration among technologically competing firms, however, has often encountered
difficulty from an antitrust standpoint, even if the formation of the pool is pro-competitive.
@article{clarkson2005patent,
title={Patent informatics for patent thicket detection: a network analytic approach for measuring the density of patent space},
author={Clarkson, G.},
journal={Academy of Management, Honolulu},
year={2005},
filename={Clarkson (2005) - Patent Informatics For Patent Thicket Detection.pdf}
}
Law: Empirical: CORE PAPER
Discusses measures etc. Review in detail.
@article{clarkson2006problem,
title={The problem of patent thickets in convergent technologies},
author={Clarkson, G. and DeKorte, D.},
journal={Annals of the New York Academy of Sciences},
volume={1093},
number={1},
pages={180--200},
year={2006},
publisher={Wiley Online Library},
filename={Clarkson DeKorte (2006) - The Problem Of Patent Thickets In Convergent Technologies.pdf}
}
Law: Discussion with network measures: CORE PAPER
Patent thickets are unintentionally dense webs of overlapping
intellectual property rights owned by different companies that can
retard progress.
@article{cockburn2006entry,
title={Entry and Patenting in the Software Industry},
author={Cockburn, I.M. and MacGarvie, M.J.},
year={2006},
journal={NBER Working Paper},
institution={National Bureau of Economic Research},
filename={Cockburn MacGarvie (2006) - Entry And Patenting In The Software Industry.pdf}
}
Econ: Empirical: CORE PAPER
Many firms, nonetheless, acquire large portfolios
of patents, and even where the primary motivation
for doing this goes beyond the potential to
exclude competitors, the impact of an accumulated
patent “thicket” on entry costs may be substantial
(see Shapiro 2001 for a definition of patent thickets).
@article{cockburn2009patents,
title={Patents, Thickets and the Financing of Early-Stage Firms: Evidence from the Software Industry},
author={Cockburn, I.M. and MacGarvie, M.J.},
journal={Journal of Economics \& Management Strategy},
volume={18},
number={3},
pages={729--773},
year={2009},
publisher={Wiley Online Library},
filename={Cockburn MacGarvie (2009) - Patents Thickets And The Financing Of Early Stage Firms.pdf}
}
Econ: Empirical: CORE PAPER
In this paper we attempt to characterize the extent to which entrants into a software
market at any given point in time face a patent “thicket”—i.e. a “a dense web of overlapping
intellectual property rights that a company must hack its way through in order to actually
commercialize new technology”3—and evaluate the impact of patent thickets on the interaction
between new software ventures and capital markets.
@article{cockburn2011entry,
title={Entry and Patenting in the Software Industry},
author={Cockburn, I.M. and Macgarvie, M.J.},
journal={Management science},
volume={57},
number={5},
pages={915--933},
year={2011},
publisher={Institute for Operations Research and the Management Sciences},
filename={Cockburn Macgarvie (2011) - Entry And Patenting In The Software Industry.pdf}
}
Revised version of above (only keep above if different)
@article{cockburn2010patent,
title={Patent thickets, licensing and innovative performance},
author={Cockburn, I.M. and MacGarvie, M.J. and M{\"u}ller, E.},
journal={Industrial and Corporate Change},
volume={19},
number={3},
pages={899--925},
year={2010},
publisher={Oxford Univ Press},
filename={Cockburn MacGarvie Muller (2010) - Patent Thickets Licensing And Innovative Performance.pdf}
}
Econ: Empirical: CORE PAPER
Defined by Shapiro (2001) as “a dense web...
@misc{cockburn2007patents,
title={Patents and the Survival of Internet-related IPOs},
author={Cockburn, I.M. and Wagner, S.},
year={2007},
publisher={National Bureau of Economic Research Cambridge, Mass., USA},
filename={Cockburn Wagner (2007) - Patents And The Survival Of Internet Related Ipos.pdf}
}
Econ: Empirical: CORE PAPER
DOES NOT MENTION THICKETS!!! But the results do not support thickets in internet-software firms.
@techreport{cohen2000protecting,
title={Protecting their intellectual assets: Appropriability conditions and why US manufacturing firms patent (or not)},
author={Cohen, W.M. and Nelson, R.R. and Walsh, J.P.},
year={2000},
institution={National Bureau of Economic Research},
filename={Cohen Nelson Walsh (2000) - Protecting Their Intellectual Assets.pdf}
}
Econ: Empirical: Why firms patent
For example, the building of patent fences can be carried to the extreme
noted by Scherer [1980] and others to the point of creating "patent thickets" that foster
broader monopolies than anticipated by patent policy which in turn impede entry and the
innovation that may accompany it.
Our data do not show the degree to which patent portfolio races distort the nature
of R&D incentives or lead to socially wasteful outcomes, or whether such portfolio races
or patent thickets actually block entry. Nor do they indicate whether fee stacking or the
breakdown of negotiations in complex technology industries have ever undermined the
commercialization of innovation. The data do suggest, however, that the potential for
such outcomes may be more pervasive than previously thought.
@incollection{cohen2008real,
title={Real impediments to academic biomedical research},
author={Cohen, W.M. and Walsh, J.P.},
booktitle={Innovation Policy and the Economy, Volume 8},
pages={1--30},
year={2008},
publisher={University of Chicago Press},
filename={Cohen Walsh (2008) - Real Impediments To Academic Biomedical Research.pdf}
}
Econ: Empirical: Academic research anticommons problems
Although their focus is largely on com
mercial projects, Heller and Eisenberg (1998) and Shapiro (2000) suggest
that the patenting of a broad range of research tools that researchers
need to do their work has spawned "patent thickets" that may make the
acquisition of licenses and other rights too burdensome to permit the
pursuit of what should otherwise be scientifically and socially worth
while research, (engendering a tragedy of the "anticommons" [Heller
and Eisenberg 1998]).15
We do find restrictions
imposed
on the flow of information and materials across biomedical researchers.
While patents play
some role, they
are not determinative. What appears to mat
ter are both academic and commercial incentives and effective excludability. Ex
clusion is rarely associated with the existence of a patent in academic settings, but
is more
readily achieved through secrecy or not sharing research materials.
@misc{competition2008pharmaceutical,
title={Pharmaceutical Sector Inquiry-Preliminary Report},
author={Competition, DG},
year={2008},
filename={Competition (2008) - Pharmaceutical Sector Inquiry Preliminary Report.pdf}
}
Policy: Pharmaceuticals
One commonly applied strategy is filing numerous patents for the same medicine
(forming so called "patent clusters" or "patent thickets"). Documents gathered in the
course of the inquiry confirm that an important objective of this strategy is to delay or
block the market entry of generic medicines. In this respect the inquiry finds that
individual blockbuster medicines are protected by up to 1,300 patents and/or pending
patent applications EU-wide and that, as mentioned above, certain patent filings occur
very late in the life cycle of a medicine.
@article{cotter2008patent,
title={Patent Holdup, Patent Remedies, and Antitrust Responses},
author={Cotter, T.F.},
journal={J. Corp. L.},
volume={34},
pages={1151},
year={2008},
publisher={HeinOnline},
filename={Cotter (2008) - Patent Holdup Patent Remedies And Antitrust Responses.pdf}
}
Law: Definition of patent holdup (and ambush)
Doesn't mention thickets except in a footnote.
@article{cowin2007policy,
title={Policy options for the improvement of the European patent system},
author={Cowin, R. and Van der Eijck, W. and Lissoni, F. and Lotz, P. and Van Overwalle, G. and Schovsbo, J.},
journal={Scientific Technology Options Assessment (STOA) of the European Parliament},
year={2007},
filename={Cowin (2007) - Policy Options For The Improvement Of The European Patent System.pdf}
}
Policy: How to reform patent system. Focus on thickets
The sectors which are most affected by this phenomenon, at least in the US, are those whose
process and product innovations rely upon complex technologies where an individual piece of
equipment is the result of a very large number of components, all susceptible to patent
protection. Here, the recent boom in patenting observed by many researchers is largely
explained not by a firms’ drive to innovate more than before, but by a need to accumulate
large enough “patent thickets”. These patent thickets work as a sort of insurance against
possible legal actions from other companies. They are in effect therefore, a kind of defensive
manoeuvre.
@article{csardi2007modeling,
title={Modeling innovation by a kinetic description of the patent citation system},
author={Cs{\'a}rdi, G. and Strandburg, K.J. and Zal{\'a}nyi, L. and Tobochnik, J. and {\'E}rdi, P.},
journal={Physica A: Statistical Mechanics and its Applications},
volume={374},
number={2},
pages={783--793},
year={2007},
publisher={Elsevier},
filename={Csardi (2007) - Modeling Innovation By A Kinetic Description Of The Patent Citation System.pdf}
}
Physics: Patent Citation Networks
Since 1991, preferential attachment
in the patent system has become increasingly
strong, indicating that patents are more and more stratified,
with fewer and fewer of the patents receiving more
and more of the citations. A few very important, perhaps
“pioneer”, patents seem to dominate the citations.
This trend may be consistent with fears of an increasing
patent “thicket”, in which more and more patents
are issued on minor technical advances in any given area.
These technically dense patents must be cited by patents
that build upon or distinguish them directly, thus requiring
that more citations be made, but few of them will be
of sufficient significance to merit citation by any but the
most closely related patents. Further work will be needed
to understand this change in citation network kinetics.
@article{denicolo2007do,
jstor_articletype = {research-article},
title = {Do Patents Over-Compensate Innovators?},
author = {Denicolò, Vincenzo},
journal = {Economic Policy},
jstor_issuetitle = {},
volume = {22},
number = {52},
jstor_formatteddate = {Oct., 2007},
pages = {pp. 679+681-729},
url = {http://www.jstor.org/stable/4502213},
ISSN = {02664658},
abstract = {Is the current level of patent protection too high or too low? To address this issue, this paper reformulates the theoretical analysis of the optimal level of patent protection to take into account the empirical findings of the innovation production function literature. This literature finds a strong relationship between R&D spending and inventions and estimates an elasticity of the supply of inventions of 0.5 or more. Thepaper then assesses the current level of patent protection, exploiting estimates of the private and social returns to R&D taken from the empirical literature and other available sources. Although more research is needed for a more precise assessment, the evidence available suggests that patents do not overcompensate innovators.},
language = {English},
year = {2007},
publisher = {Wiley on behalf of the Centre for Economic Policy Research, Center for Economic Studies, and the Maison des Sciences de l'Homme},
copyright = {Copyright © 2007 Centre for Economic Policy Research, Center for Economic Studies and Maison des Sciences de l'Homme},
filename={Denicolo (2007) - Do Patents Over Compensate Innovators.pdf}
}
Econ: Theory: 'Correct' allocation of returns to patent-holders
T. his literaturfien ds a strongr elationshibpe tweenR &D
spendinagn di nventionasn de stimateasn elasticitoyf thes upplyo f inventionosf
0.5 orm oreT. hepapetrh ena ssessetsh ec urrenlet veol f patentprotectieoxnp, loiting
estimateos f thep rivatea nds ocialr eturntso R&D takenfr om the empirical
literaturaen d othera vailables ourcesA. lthoughm orer esearcihs needefdo r a
morpe recisea ssessmentth, ee videncaev ailablseu ggesttsh atp atentsd o noto vercompensaitnen
ovators.
In certain industries, such as telecommunications and biotechnology, production of
new products often requires many complementary innovative components that are
owned by different firms.17 The proliferation and fragmentation of intellectual property
rights creates a 'patent thicket' that is often viewed as an obstacle to innovation.
Two main problems may emerge. First, a proliferation of patents held by different
owners increases transaction costs and might even prevent manufacturers from
obtaining the right to develop the new products, creating the tragedy of the anticommons
(Heller and Eisenberg, 1998). Second, with complementary patents there
may be a problem of Cournot complements (Shapiro, 2001) that increases the
deadweight loss to profit ratio D/17. How serious those problems are is a matter of
controversy,8
@article{devlin2009indeterminism,
jstor_articletype = {research-article},
title = {Indeterminism and the Property-Patent Equation},
author = {Devlin, Alan},
journal = {Yale Law & Policy Review},
jstor_issuetitle = {},
volume = {28},
number = {1},
jstor_formatteddate = {fall 2009},
pages = {pp. 61-106},
url = {http://www.jstor.org/stable/27871287},
ISSN = {07408048},
abstract = {},
language = {English},
year = {2009},
publisher = {Yale Law & Policy Review, Inc.},
copyright = {Copyright © 2009 Yale Law & Policy Review, Inc.},
filename={Devlin (2009) - Indeterminism And The Property Patent Equation.pdf}
}
Law: Theory: Comparison of real and intellectual property rights
Property rights advocates further note that such fears such as irrational hold-out?most often voiced in the con text of patent thickets and experimental use?are not supported by empirical evidence.34 Instead, strong, overlapping property rights give rise to their own solution through patent pools, portfolio cross-licenses, standard-setting organi zations (SSOs), and invent-around.35
See F. Scott Kieff, Property Rights and Property Rules for Commercializing Inven tions, 85 Minn. L. Rev. 697, 719-27 (2001) (arguing that patents do not create a hold-out problem but in fact promote innovation and commercialization).
See, e.g., Daniel F. Spulber, Unlocking Technology: Antitrust and Innovation, 4 J. Competition L. & Econ. 915, 963 (2008). Patent pools are entities that accumu late and license blocking patents. They serve a valuable role in bypassing the un desirable economic phenomenon of royalty stacking, which can hinder or even prevent the commercialization of technologies that require the use of intellectual property-protected information. Sometimes a small number of companies that possess large patent portfolios can achieve the same result by cross-licensing one another.
More fundamentally still, the innumerable overlapping patents in certain high tech fields create an impenetrable "thicket" that frustrates quixotic conceptions of Coasian bargaining and acts only as an anticommons that paradoxically fore closes innovation.200 One's exclusion of another from his land is isolated; a sin gle patentee's ability to enjoin production of a semiconductor chip that impli cates thousands of patents creates powerful negative externalities.201 Given such distinctions, many view the worlds of patent law and traditional property as sufficiently distinct to be unworthy of direct analogy.
@article{dhar20071,
title={The Impact of Intellectual Property Rights in the Plant and Seed Industry},
author={Dhar, T. and Foltz, J.},
journal={Agricultural Biotechnolgy and Intellectual Property Protection: Seeds of Change},
pages={161},
year={2007},
publisher={CABI},
filename={Dhar Foltz (2007) - The Impact Of Intellectual Property Rights In The Plant And Seed Industry.pdf}
}
Econ: Theory with some empirics: Plant/Seed Industry
UBC Marketing Prof...
A number of observers of patenting, particularly in the biological sciences, have
suggested that patenting rules and overlapping claims have generated a "patent thicket"
8
that has impeded innovation and made the R&D process more costly (Rai, 2001; Rai,
1999). Rai (2001) for example, argues that broad patents especially on upstream platform
technologies represent a threat to competition and the cumulative process of innovation in
the biopharmaceutical industry
Our work makes a start both theoretically and empirically in recognizing the
important strategic role of revelation loss in firm strategies of choice of intellectual
property rights or trade secrets.
@article{d2009pools,
title={Pools, thickets and open source nanotechnology},
author={D'Silva, J.},
journal={European intellectual property review},
volume={31},
number={6},
pages={300--306},
year={2009},
filename={DSilva (2009) - Pools Thickets And Open Source Nanotechnology.pdf}
}
Law: Discussion: Nanotech
When multiple organisations each own
individual patents that are collectively necessary for a particular technology,
their competing intellectual property rights form a "patent thicket".
@article{eisenmann2008managing,
jstor_articletype = {research-article},
title = {Managing Proprietary and Shared Platforms},
author = {Eisenmann, Thomas R.},
journal = {California Management Review},
jstor_issuetitle = {},
volume = {50},
number = {4},
jstor_formatteddate = {Summer 2008},
pages = {pp. 31-53},
url = {http://www.jstor.org/stable/41166455},
ISSN = {00081256},
abstract = {In a platform-mediated network, users rely on a common platform (provided by one or more intermediaries) that encompasses infrastructure and rules required by users to transact with each other. A fundamental design decision for firms that aspire to develop platform-mediated networks is whether to preserve proprietary control or share their platform with rivals. A proprietary platform has a single provider that solely controls its technology (for example, Federal Express, Apple Macintosh, or Google). With a shared platform such as Visa, DVD, or Linux, multiple firms collaborate in developing the platform's technology and then compete in offering users different but compatible versions of the platform. This article examines factors that favor proprietary versus shared models when designing platforms and then explains how management challenges differ for proprietary and shared platform providers when mobilizing new networks.},
language = {English},
year = {2008},
publisher = {University of California Press},
copyright = {Copyright © 2008 University of California Press},
filename={Eisenmann (2008) - Managing Proprietary And Shared Platforms.pdf}
}
Mgmt: Discussion: Platforms (TV adds)
A second type of IP-based claim can occur when shared platforms rely on many different patented technologies, each of which has no obvious substitute. Firms may find themselves in a patent "thicket," in which several parties are able to derail a shared platform by threatening to withhold necessary contribu- tions.12 Each firm can issue an ultimatum, demanding a large share of the plat- form's added value
@article{eisenstein2010up,
title={Up for grabs},
author={Eisenstein, M.},
journal={Nature Biotechnology},
volume={28},
number={6},
pages={544--546},
year={2010},
publisher={Nature Publishing Group},
filename={Eisenstein (2010) - Up For Grabs.pdf}
}
Biology: Discussion: Stem Cells
As recently as three months ago, it still all seemed
so simple. Shinya Yamanaka, whose team at
the University of Kyoto in Japan is generally
acknowledged by the research community as the
first to successfully reprogram differentiated cells
into iPS cells1, was also the sole patent holder for
the technology. But as with any other patent land
grab, iPS cell intellectual property (IP) is beginning
to look less and less like a one-horse race.
Two other recently issued patents in the
United States and United Kingdom (Table 1),
each awarded to a different inventor with a
potentially strong claim to priority, now stand
alongside Yamanaka’s patent, which was exclusively
issued in Japan. With this newly tangled IP
landscape, questions are arising about the possible
emergence of a patent thicket.
@misc{entezarkheir2010patent,
title={Patent Thickets and Market Value: An Empirical Analysis},
author={Entezarkheir, M.},
year={2010},
filename={Entezarkheir (2010) - Patent Thickets And Market Value An Empirical Analysis.pdf}
}
Econ: Empirical: CORE PAPER
In this paper, I study how the fragmentation of the ownership of complementary patents
impacts the market value of the firm. This fragmentation builds a patent thicket, which
contains a set of overlapping patents.3 The patent thicket requires obtaining permission
from several right holders to commercialize a product. Firms that face a fragmented
technology market have to pay higher transaction costs and royalty payments to license
external patents, because they are confronted with larger number of entities in the thicket.
They are more prone to opportunistic behaviour by external entities, since the likelihood
of infringing other firms’ patents is high. They are also more exposed to the risk of being
litigated against by other patent holders. Finally, they incur higher costs in finding out
whether the technologies they use have been patented by other firms.
@article{evans2004software,
title={Software patents and open source: the battle over intellectual property rights},
author={Evans, D.S. and Layne-Farrar, A.},
journal={Va. JL \& Tech.},
volume={9},
pages={10--13},
year={2004},
publisher={Virginia Journal of Law and Technology Virginia Journal of Law and Technology},
filename={Evans LayneFarrar (2004) - Software Patents And Open Source.pdf}
}
Econ: Discussion: Sofware CORE PAPER
The theoretical economics literature argues that when innovations are sequential and cumulative, patents may impose more than the typical exclusion-period costs.113 For instance, a patent for an invention early in the innovative process could impose a toll on each sequential innovation that relies on it. Subsequent inventors, therefore, face higher transaction costs––they must pay licensing fees before they can further refine a technology. As the tolls build during the technology’s development path, later research could be discouraged altogether. Alluding to the famous argument for property rights, over-patenting has been dubbed the “tragedy of the anticommons,” as too many people with exclusionary rights can cause underutilization of resources.114 Shapiro uses another metaphor: the patent thicket
the truth resides in one strain of the theoretical literature arguing against patents. Similarly, while the law and economics literature has established that patent thickets are possible, what little empirical evidence is available on this point indicates that they are not inevitable. Means of working around the exclusionary effects of patents––such as patent pools and cross-licensing––are available to the software industry.
@article{farrell2009intellectual,
jstor_articletype = {research-article},
title = {Intellectual Property as a Bargaining Environment},
author = {Farrell, Joseph},
journal = {Innovation Policy and the Economy},
jstor_issuetitle = {},
volume = {9},
number = {1},
jstor_formatteddate = {2009},
pages = {pp. 39-53},
url = {http://www.jstor.org/stable/10.1086/592420},
ISSN = {15313468},
abstract = {Executive Summary Intellectual property policy relies on bargaining in the shadow of exclusivity. But bargaining is generically less than fully efficient, and the bargaining that would be needed to reach efficient arrangements in the shadow of exclusivity may be especially difficult in certain ways. I explore these issues and illustrate with brief discussions of patent pools and standards organizations, among others.},
language = {English},
year = {2009},
publisher = {The University of Chicago Press},
copyright = {Copyright © 2009 The National Bureau of Economic Research},
filename={Farrell (2009) - Intellectual Property As A Bargaining Environment.pdf}
}
Econ: Discussion: Bargaining in IP CORE and DOWN paper
One common and intuitively difficult information problem arises
when a producer does not know with whom it must negotiate concerning
patents. One might call this a “potential-patent thicket,” as distinct
from the “actual-patent thicket” that can create multiple-marginalization
problems when many patents are known to be infringed by a product.
@article{federal2003promote,
title={To promote innovation: The proper balance of competition and patent law and policy},
author={Federal Trade Commission},
journal={Washington, DC},
year={2003},
filename={FTC (2003) - To Promote Innovation.pdf}
}
Policy: Key FTC report
This tends to create
a “patent thicket” – that is, a “dense web of
overlapping intellectual property rights that
a company must hack its way through in
order to actually commercialize new
technology.
Questionable patents contribute to
the patent thicket. In the context of a patent
thicket, questionable patents can introduce
new kinds of licensing difficulties, such as
royalties stacked one on top of another, and
can increase uncertainty about the patent
landscape, thus complicating business
planning. Questionable patents in patent
thickets can frustrate competition by current
manufacturers as well as potential entrants.
Because a manufacturer needs a license to
all of the patents that cover its product, firms
can use questionable patents to extract high
royalties or to threaten litigation
@article{federal2011evolving,
title={The Evolving IP Marketplace: Aligning patent notice and remedies with competition.”},
author={Federal Trade Commission},
journal={March, available at http://www.ftc.gov/os/2011/03/110307patentreport.pdf},
year={2011},
filename={FTC (2011) - The Evolving IP Marketplace.pdf}
}
Policy: Key FTC report
See above. We should compare the two reports!
@article{feldman2004open,
title={The Open Source Biotechnology Movement: Is It Patent Misuse?},
author={Feldman, R.},
journal={Minnesota Journal of Law, Science \& Technology},
volume={6},
year={2004},
filename={Feldman (2004) - The Open Source Biotechnology Movement Is It Patent Misuse.pdf}
}
Law: Theory/Discussion: Biotech, open source
Scholars have used the term “patent thicket” to describe the problem of multiple
overlapping rights that can hamper innovation by creating transaction barriers.20 Most
scholars and those reporting from the field agree that large numbers of rights hamper
research and innovation, particularly in the biotech field.21 One scholar, however, has
challenged the notion.22 John Walsh argues that firms simply work around the problem
of multiple rights for example, by moving offshore beyond the reach of the patent rights,
inventing around the rights, and using public research tools.23 In particular, Walsh argues
that academic researchers routinely ignore rights structures and that patent holders
passively acquiesce.
@article{feldman2008open,
title={Open Source, Open Access, Open Transfer: Market Approaches to Research Bottlenecks},
author={Feldman, R. and Nelson, K.},
year={2008},
filename={Feldman Nelson (2008) - Open Source Open Access Open Transfer.pdf}
}
Law: Theory: Academic research tools
On the patent front, a key debate concerns the existence, or non-existence, of
bottlenecks such as patent thickets and the extent to which any patent thickets may be
interfering with research. For decades, scholars warned that problems related to the over
proliferation of patent rights would interfere with innovation.1 In theory, multiple
overlapping patent rights can hamper innovation by creating high transactions costs as
researchers try to navigate the tangle of existing rights. These costs can discourage
investment in research or distort the paths that researchers take due to the difficulty of
identifying and negotiating all of the underlying rights necessary to begin researching.
This leads to inefficiencies and underutilization of intellectual resources. Across the
years, patent mavens traded stories of research deterred or research deferred due to patent
thickets.2 Innovation costs also may rise as rational enterprises factor in the risk that their
inventions will be plagued by suits from patent holders who emerge from the shadows of
the patent thicket to claim a share as soon as the invention is successful.3
@article{fischer2011patent,
title={Patent Trolls on Markets for Technology-An Empirical Analysis of Trolls' Patent Acquisitions},
author={Fischer, T. and Henkel, J.},
journal={Available at SSRN 1523102},
year={2011},
filename={Fischer Henkel (2011) - Patent Trolls On Markets For Technology.pdf}
}
Econ: Empirical: Trolls - which patents they buy
The second patent characteristic patent trolls should favor is a high cost of substituting
the underlying invention in products. This substitution cost increases with the difficulty of
inventing around the patent, which in turn is high if the patent density and complexity of the
relevant technology field is high. This means that many patents exist that have a high degree
of overlap between them and with the patent under consideration, so that finding a gap for a
non-patented substitutive technology is difficult. In other words, the focal patent is part of a
patent thicket (Shapiro, 2001).
@article{galasso2007broad,
title={Broad cross-license agreements and persuasive patent litigation: theory and evidence from the semiconductor industry},
author={Galasso, A.},
journal={LSE STICERD Research Paper No. EI45},
year={2007},
filename={Galasso (2007) - Broad Cross License Agreements And Persuasive Patent Litigation.pdf}
}
Econ: Theory and empirics: Determining cross-license agreements
To uncover the incentives behind these contracts, I have developed a model of
bargaining with learning in which firms litigate over their patent disputes if they do
not agree upon a cross-license. The model predicts that the incentive to litigate decreases
with firm investment in specific technology. More precisely, I have shown that
whereas firms with low asset specificity prefer not to sign a cross-license agreement,
firms with high sunk costs are better off cross-licensing their intellectual property. In
addition, the model predicts that firms with intermediate levels of sunk costs will engage
in inefficient “persuasive” litigation aimed at obtaining a better deal in a broad
cross-license contract.
I have tested the predictions of the model using a novel dataset merging data
on cross-license agreements, patent litigation and financial variables for firms in the
semiconductor industry.
renders it difficult to commercialize a new technology. In some industries the number
of intellectual property rights a firm requires to produce a new product is so large,
and their ownership is so dispersed, that it is quite easy to unintentionally infringe
on a patent. In this environment there is, therefore, a hold-up problem: when the
manufacturer starts selling its product a patentee might show up threatening to shut
production down unless it is paid high royalties.
@article{galasso2008patent,
title={Patent Thickets and the Market for Innovation: Evidence from Settlement of Patent Disputes},
author={Galasso, A. and Schankerman, M.},
year={2008},
publisher={CEPR Discussion Paper No. DP6946},
filename={Galasso Schankerman (2008) - Patent Thickets And The Market For Innovation.pdf}
}
Econ: Empirical: Fragmentation leads to quicker settlement (CORE PAPER)
are the fragmentation of patent rights (often
referred to as ‘patent thickets’)
In this paper we investigate how the fragmentation of patent rights and the introduction
2
in 1982 of the Court of Appeal for the Federal Circuit (CAFC) affected the length of (costly)
patent infringement disputes. We develop a model that focuses on how the uncertainty of
the enforcement regime and ‘upstream’ fragmentation affect ‘downstream’ bargaining behavior
during patent litigation. Our model extends the settlement negotiation game of Bebchuk (1984)
and Spier (1992) by considering features of patent ownership fragmentation similar to those
described in Lerner and Tirole (2004). The model shows that settlement agreements will be
reached more quickly when the patent rights needed by the infringer are more fragmented
(ownership is more dispersed) and in the more ‘certain’ enforcement regime associated with
CAFC.
@article{galasso2010patent,
title={Patent thickets, courts, and the market for innovation},
author={Galasso, A. and Schankerman, M.},
journal={The RAND journal of economics},
volume={41},
number={3},
pages={472--503},
year={2010},
publisher={Wiley Online Library},
filename={Galasso Schankerman (2010) - Patent Thickets Courts And The Market For Innovation.pdf}
}
Econ: Theory and Empirical: Fragmentation leads to quicker settlement (CORE PAPER)
Seems like an improved version of above with a model? READ IT PROPERLY!
@article{gallini2011private,
title={Private agreements for coordinating patent rights: the case of patent pools},
author={Gallini, N.},
journal={Economia e Politica Industriale},
year={2011},
publisher={FrancoAngeli Editore},
filename={Gallini (2011) - Private Agreements For Coordinating Patent Rights.pdf}
}
Econ: Theory: Patent Pools
In synthesizing the ideas advanced in the economic literature, this paper
explores whether these antitrust concerns apply to pools with complementary patents and, if they do, the
implications for competition policy to constrain them. Special attention is given to the application of the U.S.
Department of Justice-Federal Trade Commission Guidelines for the Licensing of Intellectual Property (1995) and its
companion Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (2007)
to recent patent pool cases.
A patent thicket arises when there are overlapping patent rights that must be identified and licensed in order for an
innovator to bring a new product or technology to market
@article{gallini2002economics,
title={The economics of patents: Lessons from recent US patent reform},
author={Gallini, N.T.},
journal={Journal of Economic Perspectives},
pages={131--154},
year={2002},
publisher={JSTOR},
filename={Gallini (2002) - The Economics Of Patents Lessons From Recent Us Patent Reform.pdf}
}
Econ/Policy: Patent Policy basics and reform
Doesn't mention thickets explicitly.
Good material for the underpinnings...
@incollection{gallini2002intellectual,
title={Intellectual property: when is it the best incentive system?},
author={Gallini, N. and Scotchmer, S.},
booktitle={Innovation Policy and the Economy, Volume 2},
pages={51--78},
year={2002},
publisher={MIT Press},
filename={Gallini Scotchmer (2002) - Intellectual Property When Is It The Best Incentive System.pdf}
}
Econ/Policy: Best IP incentive system
Doesn't mention thickets explicitly.
Good material for the underpinnings...
A recurring theme, especially evident in these
contexts, is that despite the efficiencies that contracting can ensure, contracting may
also facilitate anti-competitive behavior. See Hall and Ham (1999), Shapiro (2000),
Denicolò (2000). To understand whether the property system is too strong, too
weak, or necessary at all requires us to understand the incentives for contracting,
and its potential anticompetitive consequences.
@article{ganslandt2009intellectual,
title={Intellectual property rights and competition policy},
author={Ganslandt, M.},
year={2009},
publisher={Emerald Group Publishing Limited},
filename={Ganslandt (2009) - Intellectual Property Rights And Competition Policy.pdf}
}
Policy: Patent and Antitrust
Intellectual property rights and competition policy are intimately related. In this paper I
survey the economic literature analyzing the interaction between intellectual property law
and competition law and how the boundary between these two policies is drawn in
practice.
In some industries, particularly biotechnology and information technologies, it is
common that a new entrant, in order to engage in research or production, must obtain a
large number of licenses from existing and previous innovators and producers. This
problem raises the cost of product commercialization and may create substantial entry
barriers for new firms. For example, Bessen and Meurer (2006) point to the fact that the
large number of patents facing a typical innovator makes careful assessment of avenues
open for competition burdensome and costly.
@article{gaule2006towards,
title={Towards Patent Pools in Biotechnology?},
author={Gaul{\'e}, P.},
journal={Innovation Strategy Today},
volume={2},
number={2},
pages={123--143},
year={2006},
filename={Gaule (2006) - Towards Patent Pools In Biotechnology.pdf}
}
Mgmt/Law: Discussion (v. small): Biotech
The IP rights situation described above was arguably a classical case of a patent thicket with fragmented IP rights
and uncertainty about technology ownership. The option of a patent pool for this technology was raised (Fedson 04), but instead
the situation was resolved by one patent owner acquiring exclusive licenses from the other ones.
@article{george2006hiding,
title={What Is Hiding in the Bushes-Ebay's Effect on Holdout Behavior in Patent Thickets},
author={George, G.D.},
journal={Mich. Telecomm. \& Tech. L. Rev.},
volume={13},
pages={557},
year={2006},
publisher={HeinOnline},
filename={George (2006) - What Is Hiding In The Bushes Ebays Effect On Holdout Behavior In Patent Thickets.pdf}
}
Law: Discussion: CORE PAPER
A patent thicket exists where there are
numerous different firms holding patents that are legally and technologically
distinct, but overlap to cover a much smaller number of actual or
potential commercial products.2 For example, over five thousand patents
have now been granted in the area of nanotechnology despite the fact that
no nanotech products have yet been commercialized.3
@article{geradin2007royalty,
title={Royalty stacking in high tech industries: separating myth from reality},
author={Geradin, D. and Layne-Farrar, A. and Padilla Blanco, A.},
year={2007},
publisher={CEPR Discussion Paper No. DP6091},
filename={Geradin (2007) - Royalty Stacking In High Tech Industries Separating Myth From Reality.pdf}
}
Econ: Review: CORE Paper
Shaprio def. But has lit review and history.
@article{geradin2008complements,
title={The complements problem within standard setting: assessing the evidence on royalty stacking},
author={Geradin, D. and Layne-Farrar, A. and Padilla Blanco, A.},
journal={Boston University Journal of Science and Technology Law, Vol. 14, No. 2, 2008},
year={2008},
filename={Geradin LayneFarrar PadillaBlanco (2008) - The Complements Problem Within Standard Setting.pdf}
}
Econ: Review: CORE PAPER (Might be same as above)
@article{geroski2005intellectual,
title={Intellectual Property Rights, Competition Policy and Innovation: Is There a Problem?},
author={Geroski, P.A.},
journal={SCRIPT ed},
volume={2},
year={2005},
filename={Geroski (2005) - Intellectual Property Rights Competition Policy And Innovation.pdf}
}
Policy: Competition vs. patents
The second problem arises with complex innovations. When a new innovation draws
on several different areas of technology, then the innovator will need to undertake a
series of bilateral negotiations with existing intellectual property rights holders if
his/her innovation is to see the light of day. This, in turn, means that any individual
antecedent patent holder has the ability to hold up the new innovation, possibly using
this bargaining power to extract most of the returns that it promises to produce for its
creator. These “patent thickets”, as they are sometimes called, basically inflate the
(2005) 2:4 SCRIPT-ed
425
transactions costs of developing a new innovation, and are, therefore, likely to inhibit
the rate of development of new ideas or the good and services that come from them.
I started this paper with a question - is the system of intellectual property rights, with
which we are all familiar, the best way to stimulate innovation? The gist of what I
have had to say is that the answer is “maybe”. In a sense, this is not a surprising
conclusion: it is just too hard to be sure what the best policy is in almost every setting
in which this question comes up. At a more sensible level, however, “maybe” is an
answer pregnant with possibilities. Most of these arise from two different types of
observations: first, that intellectual property rights systems can inhibit innovation, or
at least distort it in particular directions; and second, that competition and innovation
are not inimical.
For me, as a competition policy practitioner, the argument that competition stimulates
innovation is an important one, for it suggests that competition policy is not
necessarily in conflict with the use of intellectual property rights to stimulate
innovation. At a practical level, this argument seems to me to have two implications.
First, it seems clear that one ought to regard restrictive licensing practices as just what
they are: namely, restrictive practices. In this, as in many other areas of anti-trust, the
rule of reason ought to apply. That is, such practices should be evaluated in the
context of the benefits which they might – or might not – bring to consumers, in both
the short and also the long run. Second, anything that substantially lessens, or
adversely affects, competition in a particular market is, or should at least potentially
be regarded as, a threat to innovation. And, finally, the need to stimulate innovation is
the one thing that both competition policy and intellectual property rights have in
common.
@article{gilbert2004antitrust,
title={Antitrust for patent pools: A century of policy evolution},
author={Gilbert, R.J.},
journal={Stanford Technology Law Review},
volume={2004},
year={2004},
filename={Gilbert (2004) - Antitrust For Patent Pools A Century Of Policy Evolution.pdf}
}
Law: History of Anti-trust and patent pools
The court ruled that the agreement to license
present and future patents and to share know-how contributed to a patent thicket that created a
barrier to new entry and allowed DuPont and National Lead to control the domestic industry for
titanium dioxide products.
@article{gilbert2010ties,
title={Ties That Bind: Policies to Promote (Good) Patent Pools},
author={Gilbert, R.J.},
journal={Antitrust Law Journal},
year={2010},
filename={Gilbert (2010) - Ties That Bind Policies To Promote Good Patent Pools.pdf}
}
Law: Discussion: Patent Pools as a solution to thickets - anti-trust's take on this...
A “patent thicket,” in which many independent patent holders have
rights that cover a technology, is one example of the anticommons.5 A
patent thicket exists when rights to many patents from different patentees
are necessary to lawfully make or sell a product (overlapping
rights).6 Patent thickets are common to many high-technology industries
in which the manufacture, use, or sale of a device or process may
require rights to hundreds of patents.7 Overlapping patent rights raise
numerous potential economic problems. Transaction costs of licensing
can be high because licensees must identify, search out, and negotiate
with numerous separate licensors. Litigation risks can be high because
an incomplete portfolio of patent licenses can expose a firm to potentially
large infringement damages. Royalties can be high if each of many
independent licensors of complementary patents attempts to obtain a
large share of the economic value of products that may infringe its patent.
For these reasons a patent thicket can raise prices and discourage
innovation relative to a situation with fewer patents or with coordinated
licensing of the overlapping patent rights.8
@article{gilbert1982preemptive,
title={Preemptive patenting and the persistence of monopoly},
author={Gilbert, R.J. and Newbery, D.M.G.},
journal={The American Economic Review},
pages={514--526},
year={1982},
publisher={JSTOR},
filename={Gilbert Newbery (1982) - Preemptive Patenting And The Persistence Of Monopoly.pdf}
}
Econ: Theory: Entry deterence (monopoly)
This paper takes a different tack
and inquires whether institutions such as the
patent system create opportunities for firms
with monopoly power to maintain their monopoly
power. The results apply to other
situations such as brand identification, spatial
location, and capacity expansion, which
share the characteristic that early, or preemptive,
actions may lower the returns to
potential competitors.
Preemptive invention is not without topical
interest. In a recent antitrust case-the
longest jury trial on record in the federal
courts-the SCM Corporation sought more
than $500 million in damages on its claim
that the Xerox Corporation, among other
alleged anticompetitiveb ehavior,h ad maintained
a "patent thicket" where some inventions
were used while others were neither
used nor licensed to others
@article{goozner2006innovation,
title={Innovation in biomedicine: can stem cell research lead the way to affordability?},
author={Goozner, M.},
journal={PLoS medicine},
volume={3},
number={5},
pages={e126},
year={2006},
publisher={Public Library of Science},
filename={Goozner (2006) - Innovation In Biomedicine.pdf}
}
Biology: Policy: Stem Cell
The current innovation
system encourages researchers to
patent and commercialize discoveries
that in an earlier era were considered
basic science insights. This has led to
an active market in the building blocks
of further research, which can be
anything from a genetic sequence or a
cell receptor to the reagents needed to
culture cells. This proliferation of basic
science patents has raised the bar—
what economists call transaction costs—
for other researchers who want access
to those research tools. While many
researchers, especially in academia,
fi nd ways around patent restrictions,
and many companies have no trouble
executing license agreements, there
are cases where “patent thickets” have
discouraged other researchers from
pursuing similar or subsequent lines of
inquiry [5].
@article{grindley1997licensing,
title={Licensing and Cross-Licensing in Semiconductors and Electronics},
author={Grindley, P.C. and Teece, D.J.},
journal={California Management Review},
volume={39},
number={2},
year={1997},
filename={Grindley Teece (1997) - Licensing And Cross Licensing In Semiconductors And Electronics.pdf}
}
Mgmt: Cross-licensing, semiconductors
No mention of thickets. But old (seminal) paper.
jstor_issuetitle = {},
publisherinstitution={ElsevierNational Bureau of Economic Research}, filename={Hemphill Lerner Tirole Strojwas (2003) - Preemptive Patenting Human Genomics And The Us Biotechnology SectorCooperative Marketing Agreements Between Competitors.pdf}
Policy (academic): Biotech: human genomics To forestallimitative activity and strengthen patent rights, firms often attempt to create a ‘patentthicket,’ i.e. obtaining patents not just on one central product or process, but on ahost of related products or processes [11]. Firms that try to compete with theinventing firm will find their attempts to duplicate the central product or processblocked by the inventing firm’s grip on alternative technologies. Many of the firm’spatents on related products or processes may never be used or licensed; such ‘sleepingpatents’ are held only to raise the costs of entry or imitation by potential rivals. @article{holman2005biotechnology, title={Biotechnology's Prescription for Patent Reform}, author={Holman, C.M.}, journal={J. Marshall Rev. Intell. Prop. L.}, volume={5}, pages={i}, year={2005}, publisher={HeinOnline}, filename={Holman (2005) - Biotechnologys Prescription For Patent Reform.pdf} } Law: 2005 patent reform act. Before discussing some of the implications of specific reforms on biotechnology, I digress briefly with a few general observations regarding biotechnology’s patent reform agenda. First, to a large extent, it is apparent that biotechnology values patents primarily for their ability to attract investment, and thus, the perceptions of investors with respect to patent reform play a dominant role in shaping the biotechnology position. Second, despite the widely-expressed fear that a proliferation of patents would have a deleterious effect on biomedical research, one sees very little evidence of that concern coming from the industry itself. To the contrary, biotechnology is one of the staunchest defenders of a strong patent system, and generally evinces little enthusiasm for reforms that might address the problem of a “patent thicket.serious threat to biotechnology research by creating a patent thicket, sometimes referred to as a “patent anticommons.”106 The theory is especially associated with articles published by Heller and Eisenberg in 1998, and Eisenberg and Rai in 2002.107 Proponents of the patent thicket hypothesis note that while patents traditionally were reserved for products, there has been an increasing tendency for biomedical researchers to patent upstream inventions, i.e., research tools and inputsIf in fact a patent thicket is significantly impeding biotechnology research and development, one might expect that organizations representing the interests of biotechnology, such as BIO, WARF, and Genentech, would be advocating for reforms that would address the problem. Indeed, the biotechnology industry has never been shy about advocating for legislative action to address its concerns.112 But instead, these groups tend to be among the most adamant defenders of the status quo and strong patent rights. One might infer from this that a patent thicket is not in fact substantially impeding biotechnology. @article{holman2006clearing, title={Clearing a path through the patent thicket}, author={Holman, C.}, journal={Cell}, volume={125}, number={4}, pages={629--633}, year={2006}, publisher={Elsevier}, filename={Holman (2006) - Clearing A Path Through The Patent Thicket.pdf} } Law: CommentaryDISCARD: Biotech (plant seed?) Upstream patents have been criticizedon a number of counts. For example,it has been proposed that the proliferationof patents covering researchtools has resulted in a “patent thicket,”rendering it virtually impossible toconduct biomedical research withoutinadvertently infringing upon a host ofconflicting patent claims (Heller andEisenberg, 1998; Rai and Eisenberg,2002). Although in theory a researchershould be able to license the necessarytechnology inputs, in practice itis generally not feasible owing to thelarge number of different patent holders,each with their own licensingagenda. Some patent holders will noteven consider licensing their technoltechnologyAppears to competitors, and in the U.S., apatentee can virtually never be compelledto grant a license.The problem is exemplified bythe experience of the developers of“golden rice,” a genetically modifiedcrop engineered to produce elevatedlevels of vitamin A (Ye et al., 2000).The project reportedly requiredaccess to technology inputs coveredby over 70 different patents,and licensing the required intellectualproperty was viewed as a majorobstacle to achieving success (RAFIcommuniqué, 2000). In the end,the patent owners agreed to freelylicense the necessary technologies,probably because golden rice wasbeing developed for humanitarianpurposes to prevent blindness inchildren in the developing world andwas not considered commerciallyviable. @article{holman2008trends, title={Trends in human gene patent litigation}, author={Holman, C.M.}, journal={Science}, volume={322}, number={5899}, pages={198--199}, year={2008}, publisher={American Association for the Advancement of Science}, filename={Holman (2008) - Trends In Human Gene Patent Litigation.pdf} } Policy: Commentary: Gene patents 3). Much of the focushas been on the alleged detrimental impact ofgene patents on the development and availabilityof diagnostic testing (1, 3, 4). Some havepostulated that a “thicket” of patents will impedebasic biomedical research and will stifledevelopment and utilization of technologiesthat involve the use of multiple geneticsequences; DNA microarrays are a primeexample (5, 6). Others claim that gene patentsare uniquely difficult to design around and,thus, fundamentally more restrictive of followondevelopments than “traditional” patents (6) @article{holman2012debunking, title={Debunking the myth that whole-genome sequencing infringes thousands of gene patents}, author={Holman, C.M.}, journal={Nature biotechnology}, volume={30}, number={3}, pages={240--244}, year={2012}, publisher={Nature Publishing Group}, filename={Holman (2012) - Debunking The Myth That Whole Genome Sequencing Infringes Thousands Of Gene Patents.pdf} } Law: Nature: Whole Gene Sequencing Doesn't mention thickets - but explicitly debunks that there is one with respect to WGS (whole-genomesequencing) The assumption that 20% of human genes arepatented, and that as a consequence WGS willinevitably result in the infringement of thousandsof gene patents, is based on a gross misinterpretationof a single Science article. Myanalysis of the claims from a substantial samplingof the patents which form the basis for theJensen & Murray article indicates that the vastmajority of these patents would almost certainlynot be infringed by WGS, either becausethey are not gene patents at all, or because theyonly claim isolated DNA molecules unlikely tobe produced in WGS (e.g., long sequences and/or cDNA sequences), or methods of genetictesting that would not encompass WGS. @article{horn2003alternative, title={Alternative approaches identical to IP management: One-stop technology platform licensing}, author={Horn, L.}, journal={Journal of commercial biotechnology}, volume={9}, number={2}, pages={119--127}, year={2003}, publisher={Palgrave Macmillan}, filename={Horn Lerner Strojwas Tirole (2003) - Alternative Approaches To IP Management.pdf} } Law: Technology Platform licensing: MPEG LA: Standards, pools By providing the marketplace with fair, reasonable, nondiscriminatoryaccess to a portfolio of worldwide essential patents under a single licence, thisexample of a one-stop technology platform licensing programme enables widespreadimplementation, interoperability and use of fundamental broad-based technologies covered bymany patents owned by many patent owners. This paper will: (1) present observations fromMPEG LA’s unique experience and perspective including a description of the necessaryelements and principles on which such efforts are based, what works and why; and (2) describeefforts to apply this innovative licensing model to the biotechnology and pharmaceuticalindustries within the larger context of historical patent pooling as a solution to biotechnologybottlenecks. But,products and the standards on which theyare based increasingly rely upon manypatents owned by many patent owners.Therefore, if the ‘thicket’2 of essential IPrights underlying their use cannot beaccessed under reasonable terms andconditions (eg cost) applied evenly to allsimilarly situated competitors, the best ofstandards often go unused. @article{huang2009does, title={Does patent strategy shape the long-run supply of public knowledge? Evidence from human genetics}, author={Huang, K.G. and Murray, F.E.}, journal={Academy of Management Journal}, volume={52}, number={6}, pages={1193--1221}, year={2009}, publisher={Academy of Management}, filename={Huang Murray (2009) - Does Patent Strategy Shape The Long Run Supply Structure And Performance Of Public Knowledge.pdf} } Econ: Thickets: Human Genome CORE PAPER In testingwhether this effect shapes contributions to publicknowledge, we relied on two characteristics thatdefine the patent landscape: “thickets” and “fragmentation.”A patent thicket is “an overlapping setof patent rights requiring those seeking to commercializenew technology to obtain licenses from multiplepatentees” (Shapiro 2001:1). We measuredthickets as the number of patents claiming the sameset of (gene) knowledge inputs. Hypothesis 5. The denser the thicket of patentsover knowledge claimed in a publication, themore the patent thicket negatively impacts therate of follow-on publications. Although the 2 percent difference providesweak support for Hypothesis 5, the underlyingrelationship between gene patent grant andlong-run public knowledge production is clearlynot linear in the number of gene patents and doesnot increase smoothly with thicket density. Hypothesis 6. The greater the ownership fragmentationof patents over knowledge claimedin a publication, the more the fragmentationnegatively impacts the rate of follow-onpublications. We therefore turned to an analysis of the ownershipfragmentation of such patent thickets to examinewhether ownership complexity contoured theimpact of patents on long-run knowledge production.When we analyzed the impact of increase infragmentation in model 5 of Table 7, we foundstrong support for Hypothesis 6. Specifically, overand above the baseline decline in expected citationsof 5 percent (also see model 3, Table 6), thereis an incremental 7 percent decline (p � .05) infollow-on knowledge production for every unitincrease in fragmentation of the patent thicket (relativeto the mean and in absolute terms).19 @article{hussinger2006silence, title={Is silence golden? Patents versus secrecy at the firm level}, author={Hussinger, K.}, journal={Economics of Innovation and New Technology}, volume={15}, number={8}, pages={735--752}, year={2006}, publisher={Taylor \& Francis}, filename={Hussinger (2006) - Is Silence Golden Patents Versus Secrecy At The Firm Level.pdf} } Econ: Trade Secrets! The focus is on product innovating firms in German manufacturing in 2000.The Mannheim Innovation Panel (MIP) and patent information from theGerman Patent and Trademark Office constitute the data base. In 2000, theMIP identifies firms that use patents and firms that use secrecy as a meansof protecting their IP. The importance of patents and secrecy is proxied bythe protected inventions’ success in the market, which is ultimately reflectedin figures of sales with new products. Using tobit and instrumental variablesregression a significant positive correlation between patenting and sales withnew products turns out, whereas there is no effect for secrecy.This finding is in line with the hypothesis that for product innovating firmspatenting is the more important method to protecting inventions in theirmarket phase as opposed to secrecy, even though over the recent years amore strategic use of patenting has gained in importance. This result isconfirmed by survey evidence in the same year suggesting that patents aremore important than secrecy to protect IP from the firms’ point of view.The frequent use of secrecy may be explained by its protective value forearly-stage inventions. A further development is that patents gained in value by their ability tobe linked with other patents, which encourages patenting of marginal inventions.The resulting complex network of single patents that bears many legalpitfalls for patent applicants was given the name ‘patent thicket’ (Shapiro,2001). These developments put into question an increased number of patentsmotivated by an increased need for IP protection and hint at the strategicvalue of patents to have driven the patent surge.To summarize: on the one hand, recent changes in patenting schemes havecaused an elevated need for patents as an IP protection tool. On the otherhand, they gained in importance as strategic instruments. @article{huys2009legal, title={Legal uncertainty in the area of genetic diagnostic testing}, author={Huys, I. and Berthels, N. and Matthijs, G. and Van Overwalle, G.}, journal={Nature biotechnology}, volume={27}, number={10}, pages={903--909}, year={2009}, publisher={Nature Publishing Group}, filename={Huys (2009) - Legal Uncertainty In The Area Of Genetic Diagnostic Testing.pdf} } Biology/Law: Genetic Diagnostic Testing Different stakeholders haveexpressed concerns about the effect of ‘blockingpatents’ or ‘patent thickets’ on genetictechnology, arguing that because such claimsare difficult or impossible to circumvent,they would increase genetic testing pricesand hinder innovation2,3. The debate hasbeen directed towards the creation of possiblesolutions for the potential “tragedy ofthe anticommons” and several collaborativelicensing models have been proposed4 As this study shows that not that manyblocking gene patents exist, proposals aimingat banning patents on human genes donot provide a plausible solution24, unless theban would be on patents for broad geneticdiagnostic methods as such. For instance,the European Society of Human Genetics(Vienna) has recently recommended avoidingpatenting of the pure link between amutation and disease2. More attentionshould be paid to the licensing practices in a‘responsible’ way16,35,36. Otherwise, the riskexists that the control by owners of patentscontaining those broad claims with respect togenetic diagnostic testing may in the futuredissociate actual genetic diagnostic testingfrom genetic counseling and clinical investigation,which is to the detriment of progressof the genetic diagnostic service and publichealthcare system. @article{iyama2005uspto, title={The USPTO's proposal of a biological research tool patent pool doesn't hold water}, author={Iyama, S.}, journal={Stanford Law Review}, pages={1223--1241}, year={2005}, publisher={JSTOR}, filename={Iyama (2005) - The Usptos Proposal Of A Biological Research Tool Patent Pool Doesnt Hold Water.pdf} } Law: Patent Pools: USPTO Biological Research Tools 2 Specifically, IP rights to research tools can limit the viability of particular research scenarios because of the phenomenon known as patent thicketing.3 Patent thickets arise because of well-distributed and overlapping patent rights. Thus, a given research process will be adversely affected where a would-be investigator encounters difficulty in the assembly of utilization rights for each research tool required for the particular research scheme.4 To mitigate this problem of patent thicketing, the U.S. Patent and Trademark Office (USPTO) issued a white paper arguing for the creation of a patent pool, composed of biological research tools, to mechanically facilitate a broad licensing scheme of the necessary use rights. @article{jacob2009patents, title={Patents and Pharmaceuticals}, author={Jacob, Robin}, year={2009}, journal={A paper given on 29th November at the Presentation of the Directorate-General of Competition’s Preliminary Report of the Pharma-sector inquiry}, filename={Jacob (2009) - Patents And Pharmaceuticals.pdf} } Public Sector Inquiry: Pharma I wish to emphasise that the phenomenon of evergreening is not confined to thepharma field. Nor is it new. Far from it. Every patentee of a major invention is likely tocome up with improvements and alleged improvements to his invention. By the time hismain patent has expired there will be a thicket of patents intended to extend his monopoly.Some will be good, others bad. It is in the nature of the patent system itself that this shouldhappen and it has always happened. There is nothing new about “evergreening”, only thename and the implication which flows from the word, that there is something sinister going onand that it has only recently been discovered. My quotation from Blanco White shows this.I would add that the particular figure of “up to 1,300” patents for a cluster needs more detail.I do not believe it to be typical. In any event one one needs to divide the figure by 27 (for themembership of the EU). @article{jensen2004achieving, title={Achieving the optimal power of patent rights}, author={Jensen, P.H. and Webster, E.}, journal={Australian Economic Review}, volume={37}, number={4}, pages={419--426}, year={2004}, publisher={Wiley Online Library}, filename={Jensen Webster (2004) - Achieving The Optimal Power Of Patent Rights.pdf} } Patent system: Designing one! Not copyable. Some mention of thickets. Strange def. @article{joshi2011strategic, title={When do strategic alliances inhibit innovation by firms? Empirical Evidence from patent pools in the global optical disc industry}, author={Joshi, A.M. and Nerkar, A.}, journal={Strategic Management Journal}, volume={32}, number={11}, pages={1139--1160}, year={2011}, publisher={Wiley Online Library}, filename={Joshi Nerkar (2011) - When Do Strategic Alliances Inhibit Innovation By Firms.pdf} } Econ/Mgmt: Patent Pools No mention of thickets Research and development (R&D) consortia are specialized strategic alliances that shape thedirection and scope of firm innovation activities. Little research exists on the performance consequencesof participating in R&D consortia. We study the effect of patent pools, a unique form ofR&D consortia, on firm performance in innovation. While prior research on alliances generallyimplies that patent pools enhance firm innovation, our study finds the opposite. Analyzing data onsystemic innovation in the global optical disc industry, we find that patent pool formation substantiallyand significantly decreases both the quantity and quality of patents subsequently generatedby licensors and licensees relative to the patenting activity of nonparticipants. Our empiricalfindings suggest that patent pools actually inhibit, rather than enhance, systemic innovation byparticipating firms.
PTLR Annotated BibTeX Master (view source)
Revision as of 00:27, 26 March 2013
, 00:27, 26 March 2013→The Master File
==The Master File==
@article{gugler2007market,
author = {Gugler, Klaus and Siebert, Ralph},
journal = {The Review of Economics and Statistics},
volume = {89},
number = {4},
see, for example, Hall and Ziedonis (2001) and Shapiro (2001).1
@articletechreport{hall2005notelerner2003cooperative, title={A note on the bias in Herfindahl-type measures based on count data}, author={Hall, B.H.}, journal={Revue D' Economie Industrielle, Paris Editions, Techniques Et Economiques}, volume={110}, pages={149}, year={2005}, publisher={Citeseer}, filename={Hall (2005) - A Note On The Bias In Herfindahl Type Measures Based On Count Data.pdf} } Econ: Econometrics: CORE PAPER! @article{hall2005exploring, title={Exploring the patent explosion}, author={Hall, B.}, journal={Essays in Honor of Edwin Mansfield}, pages={195--208}, year={2005}, publisher={Springer}, filename={Hall (2005) - Exploring The Patent Explosion.pdf} } Econ: Patents No mention of thickets in 2005 paper! I am able to confirm that after the mid-1980s, patents held byentrants to the publicly traded sector are indeed more highly valued than thoseheld by incumbents. An industry decomposition of this effect shows that it isconcentrated in what Cohen, Nelson, and Walsh (2001) label complex productindustries, which are industries where a single products can contain intellectualproperty covered by thousands of patents held by hundreds of patentholders. Insuch industries, patent portfolios often serve the defensive function offacilitating cross-licensing negotiations, rather than the traditional role ofexcluding Cooperative marketing agreements between competitors and securing the ownership of particular inventions.Although patent yield per se is not valued for incumbents in any of theindustries, I show that in complex product industries there has been a strongpositive shift in valuation for entrants as we enter the pro-patent era. @article{hall2007patents, title={Patents and patent policy}, author={Hall, B.H.}, journal={Oxford Review of Economic Policy}, volume={23}, number={4}, pages={568--587}, year={2007}, publisher={Oxford Univ Press}, filename={Hall (2007) - Patents And Patent Policy.pdf} } Econ: Patents Barely mentions thickets, but sets the stage well. During the U.S. Federal Trade Commission/Department of Justice hearings on the patent systemand antitrust policy in 2002, a number of industry representatives expressed concerns about thedifficulty of negotiating the patent thicket in their area and the risk of being “held-up” ex post bya patent on a technology that was only a small component of their product. This complaint washeard largely from those in the complex product industries (the ICT sector), such as Robert Barr,then Vice-President for Intellectual Property and Worldwide Patent Counsel at CiscoCorporation. He described two types of problems faced by firms in the sector: the first being thelarge stockpiling of patents necessary as a defensive measure against others in the industry andthe second being the threat posed by small entities that have nothing at risk themselves and maynot even be producers. The first of the problems Barr describes is clearly a case of mutually assured destruction thatleaves the firms in question no better (and no worse) off than if they were not accumulatingmassive numbers of patents for defensive purposes, and yet at the same time is a very costlystrategy. @article{hall2012study, title={A Study of Patent Thickets}, author={Hall, B.H. and Helmers, C. and von Graevenitz, G. and Rosazza-Bondibene, C.}, journal={Draft Report to the UK IPO}, pages={1--66}, year={2012}, filename={Hall (2012) - A Study Of Patent Thickets.pdf} } Econ: Patent Thickets!: CORE PAPER A patent thicket is “a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology” (Shapiro, 2000). Patent thickets consist of patents that protect components of a modular and complex technology. Here modular means that different sets of components can be assembled to yield a variety of technological products. Complex means that products consist of tens or hundreds of such modular components. Each component may end up being used in several products. Often there are partial or complete overlaps in the functionality of components and then the patents protecting the components may also overlap. If overlapping patents belong to different firms, then a patent thicket exists. @article{hall2001patent, title={The patent paradox revisited: an empirical study of patenting in the US semiconductor industry, 1979-1995}, author={Hall, B.H. and Ziedonis, R.H.}, journal={RAND Journal of Economics}, pages={101--128}, year={2001}, publisher={JSTOR}, filename={Hall Ziedonis (2001) - The Patent Paradox Revisited.pdf} } Econ: Semiconductors: CORE PAPER @article{hargreaves2011digital, title={Digital opportunity: a review of intellectual property and growth: an independent report}, author={Hargreaves, I.}, year={2011}, publisher={Intellectual Property Office}, filename={Hargreaves (2011) - Digital Opportunity.pdf} } Policy: CORE PAPER This patenting boom isleading to problems of patent office backlogs and the emergence of so called “patent thickets”, whichobstruct entry to some markets and so impede innovation.6. Patent thickets and other obstructions to innovation. In order to limit the effects of thesebarriers to innovation, the Government should:• take a leading role in promoting international efforts to cut backlogs and manage the boom inpatent applications by further extending “work sharing” with patent offices in other countries;• work to ensure patents are not extended into sectors, such as non-technical computerprograms and business methods, which they do not currently cover, without clear evidence ofbenefit;• investigate ways of limiting adverse consequences of patent thickets, including by workingwith international partners to establish a patent fee structure set by reference to innovationand growth goals rather than solely by reference to patent office running costs. The structureof patent renewal fees might be adjusted to encourage patentees to assess more carefully thevalue of maintaining lower value patents, so reducing the density of patent thickets. This finding may be due to the existence of patent thickets – meaning “an overlapping set of patent rights” which require innovators to reach licensing deals for multiple patents from multiple sources.12 These thickets appear to enable patent holders to exclude new and innovative firms from entering the market, thereby inhibiting growth. In these high technology and information intensive sectors we need to ensure that the IP system acts as a net incentive to innovation and growth. @article{harhoff2008incidence, title={Incidence and Growth of Patent Thickets-The Impact of Technological Opportunities and Complexitypools}, author={HarhoffLerner, DJ. and Von GraevenitzTirole, G. and Wagner, S.}, journal={CEPR Discussion Papers}, volume={6900}, year={2008}, publisher={CEPR Discussion Papers}, filename={Harhoff (2008) - Incidence And Growth Of Patent Thickets.pdf} } Econ: Patent thickets: 88-02, 30 industries, EPO data CORE PAPER fragmentation index has predominantly been studied in complex industries (Ziedonis, 2004,Schankerman and Noel, 2006) where increasing fragmentation raises firms’ patent applications.This is attributed to firms’ efforts to reduce potential hold-up by opportunistic patenteesowning critical or blocking patent rights – a situation which is associated with the existence ofpatent thickets. This index does not measure hold-up potential as precisely as the complexitymeasure we discuss above. @article{harhoff2012conflict, title={Conflict Resolution, Public Goods and Patent Thickets}, author={Harhoff, D. and Von Graevenitz, G. and Wagner, S.}, journal={Public Goods and Patent Thickets (April 15, 2012)}, year={2012}, filename={Harhoff VonGraevenitz Wagner (2012) - Conflict Resolution Public Goods And Patent Thickets.pdf} } Econ: EPO data CORE PAPER Moreover, the presence of patent thickets, i.e., fields with a high number of patents that havesimilar or overlapping claims @article{hegde2009pioneering, title={Pioneering Inventors or Thicket Builders: Which US Firms Use Continuations in Patenting?}, author={Hegde, D. and Mowery, D.C. and Graham, S.J.H.}, journal={Management Science}, volume={55}, number={7}, pages={1214--1226}, year={2009}, publisher={INFORMS}, filename={Hegde Mowery Graham (2009) - Pioneering Inventors Or Thicket Builders.pdf} } Econ: Patent Continuations: CORE PAPER (just)These lower-quality patents can be valuable to patentholdersseeking to accumulate a thicket of patentsfor “defensive” purposes and/or to improve their bargainingposition in patent cross-licensing negotiations(Shapiro 2001). Additionally, according to Lemley andMoore (2004), inventors may use the continuationsprocedure to increase uncertainty for rivals’ researchand development (R&D) investment decisions, or toacquire so-called “submarine patents.”1�2 A high proportion of backward self-cites is another potential correlateof patenting strategies that accumulate “thickets” of patentsthat overlap and cite one another. We found that patents owned byCompustat firms issuing from post-1995 CAPs contained a significantlyhigher proportion of backward self-citations than any othergroup of patents, whereas CAPs prior to 1995 cited their ownpatents less frequently than patents issuing from any other type ofcontinuation. This provides additional evidence on the increaseduse of CAPs in post-1995 strategies that involve building thicketsof patents. @article{heller1998thetragedy, jstor_articletype = {research-article}, title = {The Tragedy of the Anticommons: Property in the Transition from Marx to Markets}, author = {Heller, Michael A.}, journal = {Harvard Law Review}, jstor_issuetitle = {}, volume = {111}, number = {3}, jstor_formatteddate = {Jan., 1998}, pages = {pp. 621-688}, url = {http://www.jstor.org/stable/1342203}, ISSN = {0017811X}, abstract = {Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another. When too many owners hold such privileges of use, the resource is prone to overuse - a tragedy of the commons. Depleted fisheries and overgrazed fields are canonical examples of this familiar tragedy. In an anticommons, according to this Article, multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use. When too many owners hold such rights of exclusion, the resource is prone to underuse - a tragedy of the anticommons. Empty Moscow storefronts are a canonical example of the tragedy of underuse. Anticommons property may appear whenever governments define new property rights in both post-socialist and developed market economies. Once an anticommons emerges, collecting rights into usable private property bundles can be brutal and slow. The difficulties of overcoming a tragedy of the anticommons suggest that policymakers should pay more attention to the content of property bundles, rather than focusing just on the clairty of rights.}, language = {English}, year = {1998}, publisher = {The Harvard Law Review Association}, copyright = {Copyright © 1998 The Harvard Law Review Association}, filename={Heller (1998) - The Tragedy Of The Anticommons.pdf} } Law: SEMINAL DOWN (FOUNDATION) ARTICLE. In an anticommons,according to this Article, multiple owners are each endowed with the right to excludeothers from a scarce resource, and no one has an effective privilege of use. When too manyowners hold such rights of exclusion, the resource is prone to underuse - a tragedy of theanticommons. In the United States, vivid examples appear at the frontiers ofNative American law and intellectual property protection.20 See infra section IV.D (discussing an anticommons in Native American allotted lands). In aforthcoming article, Rebecca Eisenberg and the author of this Article show how the recent proliferationof patent rights in basic biomedical research may lead paradoxically to fewer useful pharmaceuticalproducts and procedures in the United States. A tragedy of the anticommons may bethe unintended consequence of privatizing basic biomedical research. @article{heller1998can, title={Can patents deter innovation? The anticommons in biomedical research}, author={HellerStrojwas, M.A. and Eisenberg, R.S.}, journal={Science}, volume={280}, number={5364}, pages={698--701}, year={1998}, publisher={American Association for the Advancement of Science}, filename={Heller Eisenberg (1998) - Can Patents Deter Innovation The Anticommons In Biomedical Research.pdf} } Law: CORE PAPER!!! Never uses the term thicket. Foundational application of anti-commons to biotech patents. In theory, in a world of costlesstransactions, people could always avoidcommons or anticommons tragedies bytrading their rights (10). In practice, however,avoiding tragedy requires overcomingtransaction costs, strategic behaviors, andcognitive biases of participants (11), withsuccess more likely within close-knit communitiesthan among hostile strangers (12–14). Once an anticommons emerges, collectingrights into usable private property isoften brutal and slow (15). @article{hemphill2003preemptive, title={Preemptive patenting, human genomics, and the US biotechnology sector: balancing intellectual property rights with societal welfare}, author={Hemphill, T.A.}, journal={Technology in Society}, volume={25}, number={3}, pages={337--349},
year={2003},
}
