Changes

thicket_stance={Weak Anti},

thicket_stance_extract={Evidence does not support the argument that patents simply are not needed to spur innovation, or that patents block future innovation by causing non-negotiable thickets of rights and reducing the software commons. Arguments like these are based largely on theory with a smattering of anecdotes thrown in, rather than on hard empirical evidence.},

thicket_def_extract={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... Based on the theoretical literature, software patent opponents claim that patent thickets will develop in the software industry. Thus, they assert that patents allow a company or individual to prevent the type of incremental innovation that is so important in the software industry. When small pieces of software that are adaptable to a multitude of applications can be and are patented, it becomes increasingly likely that each complex program will infringe someone’s patent. Therefore, opponents argue that developers have incentives to “over-patent” for strategic or defensive reasons in order to gain leverage in cross-licensing negotiations.119 Strategic patenting results in a patent thicket, an impenetrable barrier to further innovation.},

tags={#Core Paper},

discipline={Law},

research_type={Discussion},

thicket_stance={Neutral},

thicket_stance_extract={The way forward from here is obvious. We need both more data, and more nuanced theory to account for it. And we also need a better understanding of when and how government policy can be brought to bear on these issues. For example, we are just beginning to see how patterns of post-grant transactions affect the economic impact of various property right entitlements. This will have obvious implications for our thinking about the proper contours of property right grants. At the same time, it is likely that in certain cases it will be very difficult or impossible to see far enough down the road to predict the post-grant landscape. In such cases, we must be sensitive to the need for rules and doctrines that permit the “visible hand” of government to prod or even force parties into transactions.},