Changes

discipline={Econ},

research_type={Empirical},

thicket_stance_extract={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 commercializa- tion 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.},

thicket_def={References Shapiro, Single Firm, Strategic Patenting (Good), Barrier To Entry},

discipline={Law},

research_type={Empirical},

thicket_stance={Assumed Pro},

thicket_stance_extract={In other words, many closely related patents may cover a single product, mak- ing 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. Regardless of the particular manifestation of portfolio value, previous research has not cap- tured this aspect of patent value, and we have not ascertained a way to estimate the effect of a patent’s contribution to a portfolio apart from whatever stand-alone value it may or may not have.},

discipline={Policy Report},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={Economist Carl Shapiro elaborates on the problems created by a ‘patent thicket’. Using traditional economic analysis, he has shown how, when several monopolists exist that each control a different raw material needed for development of a product, the price of the resulting product is higher than if a single firm controlled trade in all of the raw materials or made the product itself 18. However, the combined profits of the producers are lower in the presence of complementary monopolies. So, if there are several patent holders whose permission is needed to create a gene therapy (and any one of them could block the production of the gene therapy), inefficiencies in the market are created, potentially harming both the patent holder and the patent users.},

year={2003},

abstract={},

thicket_stance={Neutral},

thicket_stance_extract={The main problem for policy, however, is how to put a brake on the worst effects of strategic patenting without damaging the incentive effects of the patent system, nor the competitiveness of European firms. The latter is a serious problem. All firms might be better off with less patenting, but as long as their competitors are active in strategic patenting, they will be forced to continue to patent excessively in order not to be left defenseless. This could be a particularly thorny problem for European firms that are active in the United States. Nor is strategic patenting without its possible benefits to innovation. Cohen et al (2002b) note that non-cooperative interactions such as patent blocking and portfolio races ‘raise the possibility of socially wasteful expenditures of effort on applying for marginal patents and associated litigation’.},

discipline={Policy Report},

research_type={Discussion},

thicket_stance_extract={Possibilities and facts are not the same thing, however, and there is surprisingly little empirical data to show that the patent thicket is subtracting from the rate of innovation or society's benefit from it. Maybe that is happenning without anyone noticing, but the available evidence suggests otherwise.},

thicket_def={#A-T, #D, Dubious Patents, Transaction Costs},

abstract={Patent thickets may inefficiently retardcumulative innovation. This Article explores two alternative mechanisms that may be used to weed out patent thickets. Both mechanisms are intended to reduce the number of patents in our society. The first mechanism we discuss is price-based regulation of patents through a system of increasing renewal fees. The second and more innovative mechanism is quantity-basedregulation through the establishmentofa system of Tradable Patent Rights. The formalization of tradable patent rights would essentially create a secondary market for patent permits in which patent protection will be bought and sold. The Article then discusses how price and quantity regulation can be combined to effect superiorweeding.},

discipline={Law},

thicket_stance={Pro},

thicket_stance_extract={Patent thickets are especially harmful in cumulative innovation settings. In such settings, the need to secure licenses from multiple patentees, each possessing a veto power over the production of new innovation (1) dramatically increases bargaining costs between patentees and subsequent innovators; (2) creates a potential for hold-ups; and (3) lowers the profits of the original patentees. Patent thickets also harm regular users of patented products and technology by making it more expensive for users to gain access to the relevant product or technology.},

discipline={Law},

research_type={Discussion},

thicket_stance={Anti},

thicket_stance_extract={Much has been made about the nanotech patent "land grab," where inventors rush to patent huge swaths of claim space, while the PTO - allegedly with little knowledge of nanotechnology and no dedicated examining group - grants very broad and overlapping claims. 16 Moreover, the interdisciplinary nature of nanotechnology may allow two patents that use different language to claim the same nanotech product. For example, one patent might cover silicon nanocrystals with an average diameter between 1nm and 30nm, while another could cover any nanocrystal that emits light in a spectral range no greater than 60 nm. Such patents could overlap and create mutually blocking rights.17 While there is nothing in the patent law to prohibit new and nonobvious claims from overlapping (i.e., claims in different patents which cover the same product and which are new and not obvious over the prior art),18 the commentators expressed concern that the allowed claims in some patents may be obvious over the prior art. In Kumar,however, the PTO found the prior art and rejected those claims that it considered to be obvious in light of those references.},

abstract={This article explores what factors determine the decision of a patent pool to accept new inputs. We propose a dynamic analysis of 1337 U.S. patent inputs into 7 important pools. This analysis highlights a trade-off between firm and patent characteristics as the determinants of inclusion of patents into pools. For instance we prove that firms already member of the pool or holding large patent portfolios are able to include lower quality patents. These findings can be explained both by bargaining power and information asymmetry. In particular, as measured by a new indicator, insiders and firms practicing the technology file patents that are better aligned with the criteria of essentiality.},

discipline={Econ},

industry={ICT},

thicket_stance={Pro},

abstract={This article provides empirical evidence that patent pools contribute to the patent inflation around technological standards. 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. While the high number of patents in ICT technologies is increasingly recognized as hampering the implementation of standards, this is the first thorough empirical analysis of the driving factors of this patent inflation. We control for a wide array of factors relating to standardization and the technological field to isolate the incremental effect of patent pools. We find that patent pools increase the number of essential patents especially through patent races in view of patent pool creation. To a lower extent, we also find evidence for opportunistic patent introductions into existing patent pools.},

discipline={Econ},

industry={ICT},

thicket_stance={Pro},

year={2010},

abstract={The emergent field of nanotechnology (NT) is currently very active worldwide with respect to intellectual property rights (IPR), especially patents, with both developed and developing countries joining in the nano-patents race. With the emergence of any new technology, nanotechnology creates opportunities as well as challenges in adapting the patent regime to its particular context. There is some consensus that patenting NT innovations poses more porblems than other technologies, owing to their multi-disciplinary character, cross-sectoral applications, broad claims as well as difficulties in fulfilling the patentability criteria of novelty, non-obviousness and industrial application. This is aggravated by a lack of standardized terminology which impedes easy identification of nano-patents and also the fact that patent offices may not be well-equipped to handle nanotechnology. These problems are likely to be compounded for developing and least developed countries, which irrespective of their state of technological advancement, and capacity of the domestic regime, are obliged to confed IPR in the new technology. This paper seeks to examine the challenges which patenting of NT entails for the patent regimes of nations and how these could be addressed. it relies on a study of the patent regimes and case laws of other countries, namely, the United States to draw lessons for India. The low volume of NT patent applications and grants at the Indian Patent office and lack of Indian case laws on teh subject make the discussion anticipatory and suggestive in nature. The paper finally arrives at certain recommendations, to help reconcile the need to incentivize innovation in the new technology, with the imperative of ensuring that the public interest is served and access to the patented knowledge is not hindered.},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={A fall out of such broad claims has been patenting of inventions bordering closely on discoveries (unpatentable subject matter), and patents on basic inventions or building block patents. When holders of such broad patents refuse to license their patents or license these on exclusive basis or at prohibitive prices or with restrictive conditions, it leads to the growth of patent thickets impeding downstream research in nanotechnology. The existence of a high number of such patents with broad and sometimes, overlapping claims adds to the problem of thickets and leads to the fragementation of the patent landscape.},

research_type={Theory},

industry={General, ICT},

thicket_stance_extract={Oligopolists holding cross-infringing patents may actually reduce innovation by restricting entry into the oligopoly},

thicket_def={References Shapiro, Complementary Inputs, Diversely-Held, Barrier To Entry, Strategic Patenting (Bad), Strategic Patenting (Good)},

publisher = {Springer},

copyright = {Copyright © 2004 Springer},

research_type={Discussion},

industry={General, ICT},

year={2005},

abstract={},

thicket_stance={Assumed Pro},

thicket_stance_extract={Given such a patent landscape, expensive litigation is as inevitable as it was with the biotechnology industry, where extensive patent litigation resulted once the products became commercially successful. In most of the patent battles the larger entity with the deeper pocket s will rule the day even if the brightest stars and innovators are on the other side. ... Ultimately, this situation is all too familiar to the business and patent communities, in that it leads to higher costs to consumers, if and when products are commercialized [5], as well as deter ring the innovation process itself},

year={2007},

abstract={There is enormous excitement and expectation regarding nanotechnology's potential impact. However, securing valid and defensible patent protection will be critical here. Although early forecasts for nanotechnology commercialization are encouraging, there are bottlenecks as well. One of the major hurdles is an emerging thicket of patent claims, resulting primarily from patent proliferation, but also because of issuance of surprisingly broad patents by the U.S. Patent and Trademark Office (PTO). Adding to this confusion is the fact taht the U.S. National Nanotechnology Initiative's widely-cited definition of nanotechnology is inaccurate and irrelevant. This has also resulted in the PTO's flawed nanotechnology patent classification system. All of this is creating a chaotic, tangled patent landscape in vairous sectors of nanotechnology (e.g., nanoelectronics and nanomedicine) in which competing players are unsure as to the validity and enforceability of numerous issued patents. If this trend continues, it could stifle competition, limit access to some inventions and simply grind commercialization efforts to a halt. Therefore, reforms are urgently needed at the PTO to address problems ranging from poor patent quality and questionable examiniation practices to iinadequate search capabilities, rising attrition, poor employee morale, and a skyrocketing patent application backlog. Only a robust patent system will stimulate the development of commercially viable nanotechnology products.},

thicket_stance={Pro},

thicket_stance_extract={Therefore, if the current dense patent landscape becomes more entangled and the patent thicket problem worsens, it may prove to be the major bottleneck to viable commercialization, negatively impacting the entire nanotechnology revolution. For investors, competing in this high-stakes patent game may prove too costly.},

year={2007},

abstract={Characteristics of the complex and growing stem cell patent landscape indicate strategies by which public sector research institutions could improve the efficiency of intellectual property agreements and technology transfers in stem cells.},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={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.},

discipline={Econ},

research_type={Theory},

thicket_stance={Pro},

thicket_stance_extract={While the situation is somewhat different in developing countries, where farmers have traditionally created thousands of different varieties, the lack of the technological know-how and instruments to improve increasingly sophisticated seed varieties is also marginalising their role as seed innovators. The continued corporate and governmental pressure on such countries to strengthen their seed-marketing, IPR protection and enforcement systems (Sell, 2003) will further adversely affect such farmers’ potentially innovative activities.},

publisher={Taylor \& Francis},

abstract={This article investigates the issue of standardisation in the ICT sector, analysing the most relevant aspects concerning intellectual property rights and anticompetitive strategies that can arise in standard setting organisations. The strategic dimension of this activity is also scrutinised, highlighting the different approaches followed by the United States and by the European Union. In this respect, after underlining the benefits of processes not lead by public structures, the article describes the fundamental role of internal regulations, which are necessary both for the purpose of having a sound process, and also reducing the risk of collusion and other anticompetitive conducts among members.},

research_type={Discussion},

industry={ICT},

research_type={Theory},

industry={Semiconductor},

thicket_stance_extract={The semiconductor market faces skewed incentives in the decision to patent integrated circuit technologies. First, patenting a circuit that is deeply embedded in a chip holds little promise for either a small or a large manufacturer. Small manufacturers face increased attention and aggressive licensing negotiations from larger players if they reveal parts of their chips' inner workings through patent disclosure. When large companies patent deeply embedded circuits, they must put forth expensive and time- consuming efforts to find evidence that other companies are actually infringing their patents, because of the needle-in-a-haystack nature of individual circuits in complex chips. For both large and small companies, there is the threat that a patent disclosure will simply be co-opted by another manufacturer, who will exploit the patentee's technology in a chip too obscure to ever be detected.},

thicket_def={#A-S, References Shapiro, Complementary Inputs, Diversely-Held},

abstract={},

discipline={Law},

industry={General},

thicket_stance={Pro},

discipline={Econ},

research_type={Empirical},

thicket_stance_extract={We do find restrictions imposedon the flow of information and materials across biomedical researchers. While patents play some role, they are not determinative. What appears to matter are both academic and commercial incentives and effective excludability. Exclusion is rarely associated with the existence of a patent in academic settings, but is more readily achieved through secrecy or not sharing research materials.},

thicket_def={#A-T, References Heller/Eisenberg, References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs},

abstract={},

discipline={Policy Report},

thicket_stance={Pro},

thicket_stance_extract={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... In their submissions, both generic and originator companies support the creation of a single Community patent to amend the current costly and burdensome system consisting of a bundle of national patents.},

year={2007},

abstract={},

industry={General},

thicket_stance_extract={To meet the challenges that the governance of the European patent system is facing because of the emergence of patent thickets the increasing number of patent applications and patenting for defensive and strategic reasons, three options were recommended. These were: (i) enhancing the patent awareness within the European Parliament; (ii) establishing a European Parliament Standing Committee on Patents, which should be linked with an External Advisory Body composed by experts, practitioners and stakeholders; and (iii) enhancing patent awareness within the Commission.},

thicket_def={#B1, #D-S, Overlapping Patents, Single Firm, Hold-up, Barrier To Entry, Cummulative Invention},

discipline={Law},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={In most cases this will deter many smaller startups and research centres from attempting to traverse the patent thicket. Also broad, overlapping and conflicting thickets are likely to lead to lengthy and costly patent battles.},

discipline={Econ},

research_type={Theory, Empirical},

thicket_stance={Weak Pro},

thicket_stance_extract={A number of observers of patenting, particularly in the biological sciences, have suggested that patenting rules and overlapping claims have generated a "patent thicket" 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.},

publisher = {University of California Press},

copyright = {Copyright © 2008 University of California Press},

research_type={Discussion},

thicket_stance={Pro},

thicket_stance_extract={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 contributions.12 Each firm can issue an ultimatum, demanding a large share of the platform's added value.},

publisher={Nature Publishing Group},

abstract={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. On the other hand, early signs suggest that the iPS cell marketplace may evolve to provide ample room for many different contenders. Whereas for now companies are focused primarily on iPS cell cultivation as a means for deriving clinically relevant mature cells, companies may take advantage of recent data on transdifferentiation that suggest that this pluripotent midpoint may even be dispensable in the future2.},

research_type={Discussion},

thicket_stance={Assumed Pro},

thicket_stance_extract={As issued patents on induced pluripotent stem (iPS) cells stack up, the specter of a patent thicket looms.},

discipline={Policy Report},

research_type={Discussion},

thicket_stance={Pro},

thicket_stance_extract={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... For example, a questionable patent that claims a single routine in a software program may be asserted to hold up production of the entire software program. This process can deter follow-on innovation and unjustifiably raise costs to businesses and, ultimately, to consumers.},

discipline={Policy Report},

research_type={Discussion},

thicket_stance={Pro},

thicket_stance_extract={Overcompensation of certain patented technologies over-incentivizes invention in that area, to the detriment of more productive innovative activity. It also over-incentivizes the pursuit of patents for their own sake, unnecessarily increasing the number of patents in a given field beyond what is necessary to encourage productive innovation.},

discipline={Law},

research_type={Theory, Discussion},

thicket_stance={Neutral},

thicket_stance_extract={Scholars have used the term “patent thicket” to describe the problem of multiple overlapping rights that can hamper innovation by creating transaction barriers. 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.},

discipline={Law},

research_type={Theory},

thicket_stance_extract={If patent thickets exist, the concern is that they will substantially impair research and development because the tools of invention cannot flow freely through the research and development community.},

thicket_def={#A-T, #B-T, Overlapping Patents, Unspecified Blocking Mechanism, Diversely-Held, Transaction Costs, Always Hinders Innovation, Cummulative Invention},

discipline={Econ},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={Patent thickets may, therefore, impede the ability of firms to conduct research effectively (Eisenberg 1989)... Shapiro (2001) argues that problems with patent thickets become especially thorny in conjunction with the risk of hold-up, which is the danger that new products will inadvertently infringe on patents issued after these products were designed. In terms of empirical evidence, the problem may be insignificant in practice, at least at the general level. Walsh et al. (2003) find that drug discovery has not been substantially impeded by the multiplicity of patented prior inventions and they find little evidence that university research has been impeded by concerns about patents on research tools.},

year={2006},

abstract={},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={The strength of the anti-commons thesis rests on two assumptions that are very difficult to test: (1) that developing commercial biomedical products requires access to many different IP rights and (2) that negotiating access with different patent owners is prohibitively difficult and costly. On the first point, the number of biotechnology patents has certainly increased dramatically over the last decade, although by itself that does not necessarily imply greater fragmentation. Walsh et al. (2003) report from interviews with biotechnology industry IP practitioners that preliminary freedom to operate searches can sometimes find hundreds of patents relevant to a candidate product but that on closer inspection “there may be, in a complicated case, about 6-12 that they have to seriously address, but that more typically the number was zero.” Enough anecdotal evidence exists, however, to suggest that the fragmentation of rights in biotechnology is sometimes a serious concern.},

publisher={Public Library of Science},

abstract={},

thicket_stance={Pro},

thicket_stance_extract={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, find 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.},

year={2003},

abstract={Within the biotechnology sector of the US economy, aggressive patenting, i.e. preemptive patenting, of human genomic research results are practiced by private-sector firms, the academic community, and non-profit organizations. Preemptive patenting has traditionally been practiced by the private sector as a competitive strategy, being driven by economic considerations. Recently, academics and patients/consumers have instituted preemptive patenting strategies as a way of ensuring access to genomic sequences for, respectively, research study purposes and life-enhancing access to diagnostic gene testing. To reduce this non-economic motivation for preemptive patenting by these nontraditional competitors, it is recommended that the biotechnology industry initiate a strategy of its own which will: (1) relax firm patent enforcement of genomic sequences that are essential for academic researchers to use in their studies; and (2) provide for a ‘means-test’ approach that incorporates a ‘staggered’ fee-schedule for academic researchers to charge their subjects, i.e. patients, for gene tests and diagnostic results.},

research_type={Discussion},

thicket_stance={Pro},

thicket_stance_extract={To forestall imitative activity and strengthen patent rights, firms often attempt to create a ‘patent thicket,’ i.e. obtaining patents not just on one central product or process, but on a host of related products or processes [11]. Firms that try to compete with the inventing firm will find their attempts to duplicate the central product or process blocked by the inventing firm’s grip on alternative technologies. Many of the firm’s patents on related products or processes may never be used or licensed; such ‘sleeping patents’ are held only to raise the costs of entry or imitation by potential rivals.},

year={2005},

abstract={On June 8, 2005, Congressman Lamar Smith introduced H.R. 2795, the “Patent Reform Act of 2005,” aimed at improving the quality and certainty of issued patents, simplifying the patent procurement process, harmonizing U.S. law with international practice, and reining in abusive patent enforcement practices. Congress has set the legislation aside for the time being, but will likely revisit the issue again shortly. The biotechnology industry, one of the fastest growing sectors in the United States economy, strongly opposes many of the proposed reforms. This paper considers the Congressional testimonies of the Biotechnology Industry Organization (“BIO”) and other representatives of biotechnology’s interests, and finds that the industry’s adamant opposition to many of the proposals is driven largely by a belief that biotechnology patents function primarily as tools for securing investment funding, and the fear that investment in biotechnology will be adversely impacted if investors perceive that patent reform has weakened the rights of patent owners and inventors. The paper also considers how the biotechnology sector might be impacted if the proposed reforms are enacted into law, and describes some recent biotechnology cases wherein the outcome might have been different if the reforms had already been in place.},

thicket_stance={Anti},

thicket_stance_extract={If 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.},

abstract={Patents do not always promote innovation, particularly when they restrict access to fundamental scientific discoveries and the tools of basic research. However, there are legal and policy approaches that may help to ameliorate problems associated with patenting these sorts of inventions.},

discipline={Law},

thicket_stance_extract={Although upstream patents have been widely criticized, and there are a number of cases where specific patents clearly seem to have impeded innovation, there is little objective evidence to support a conclusion that patents constitute a widespread substantial obstacle to biomedical R&D, particularly in the academic sector.},

thicket_def={#B1-S, References Heller/Eisenberg, Complementary Inputs, Diversely-Held},

publisher={American Association for the Advancement of Science},

abstract={},

thicket_stance={Anti},

thicket_stance_extract={However, for the most part, fears expressed concerning human gene patents have not been manifested overtly in patent litigation. Human gene patent litigation invariably has involved an alleged infringer engaged in substantial commercial activities focused specifically on the single gene that is the subject of the asserted patent, the antithesis of a patent thicket scenario (14). Some have speculated that DNA microarray technology is particularly at risk of becoming entangled in a thicket (6). However, I found no instance in which a human gene patent was asserted against the manufacturer or user of microarray technology, although microarray companies have experienced substantial patent litigation involving nongene patents since the mid-1990s.},

discipline={Law},

research_type={Discussion},

thicket_stance={Pro},

thicket_stance_extract={In addition, there has been enormous growth in the number of issued patents containing progressively narrower claims. Therefore, licences under multiple patents owned by multiple patent owners are required. In the absence of a patent pool, the transaction costs required to identify the blocking patents and conclude negotiations for a licence under each of them (assuming the patent owners are even willing to enter into licence negotiations), to say nothing of paying multiple royalties, are too costly for the average user - with the result that technological advancement, adoption and use are impeded; freedom of technological movement is restricted; the potential for conflict is increased; and traditional one-on-one licensing arrangements fall short.},

abstract={In the 1990s, patenting schemes changed in many respects: upcoming new technologies accelerated the shift from price competition towards competition based on technical inventions, a worldwide surge in patenting took place, and the ‘patent thicket’ arose as a conse- quence of strategic patenting. This study analyzes the importance of patenting versus secrecy as an effective alternative to protect intellec- tual property in the inventions’ market phase. The sales figure with new products is introduced as a new measure for the importance of IP protection tools among product innovating firms. Focusing on the German manufacturing in 2000, it turns out that patents are impor- tant to protect intellectual property in the market, whereas secrecy seems to be rather important for early-stage inventions.},

discipline={Econ},

industry={General, Manufacturing},

thicket_stance={Neutral},

abstract={},

discipline={Law},

thicket_stance={Pro},

thicket_stance_extract={But how likely is it that a patent thicket for biological research will develop? According to the NIH working group on research tools, a thicket of research tool patents has already begun to form...The cumulative result of these actions is the initial formation of a patent thicket for research tools. The negative consequence of an extensive research tool patent thicket and its accompanying licensing scheme is the potential chilling effect on innovation.},

journal={A paper given on 29th November at the Presentation of the Directorate-General of Competition’s Preliminary Report of the Pharma-sector inquiry},

abstract={},

thicket_stance={Neutral},

thicket_stance_extract={Every patentee of a major invention is likely to come up with improvements and alleged improvements to his invention. By the time his main 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 should happen and it has always happened. There is nothing new about “evergreening”, only the name and the implication which flows from the word, that there is something sinister going on and that it has only recently been discovered.},

abstract={In this paper, we identify three policy instruments governments have at their disposal to affect the power of patent rights to prevent imitation: the size of the inventive step used to make the patent granting decision, the rigour of the patent examination process and the predisposition of the courts to affirm the patent office's decision. We develop a simple framework to analyse the effects of changing these policy instruments on ex ante investment in invention in the light of recent concerns about the potential effects of socially undesirable patents.},

discipline={Econ},

industry={General},

thicket_stance={Pro},

abstract={This article investigates a pool of substitute patents that enable firms to reduce marginal costs of production. Contrary to the general belief, it is shown that a pool of substitute patents may promote competition under certain conditions, thereby enhancing social welfare in the product market. The intuition is that when firms compete in licensing fees, resultant low licensing fees discourage firms from licensing to outside firms. This leads to fewer licensees than when a patent pool is formed.},

discipline={Econ},

industry={General},

thicket_stance={Assumed Pro},

publisher={Am Med Assoc},

abstract={The pharmaceutical and biotechnology industries have long relied on pat- enting as the primary means of allocating ownership and control over new discoveries. Yet, patent protection is a double-edged sword that has major implications for the future of innovation in biomedical science in the United States. Excessive “upstream” patenting of genes and molecular targets could hinder further research by creating a need for expensive and inefficient cross-licensing. However, limiting such basic science patenting could allow pri- vate entities to use the results of years of costly publicly funded research to produce and market lucrative products without compensating university- or public sector–based innovators. Academic and other nonprofit research cen- ters would, therefore, be deprived of revenue for pursuing novel therapeu- tics or other seminal research work that may not be patentable. Recent court cases illustrate the inherent conflicts in allocating ownership and control of basic biomedical discoveries. Several options exist to avoid the complex prob- lems of overlapping basic science patents while still rewarding pivotal discoveries and encouraging further innovation. These include establishing ba- sic science patent pools and mandating arbitration arrangements that would assign credit and royalties for biotechnology innovations that depend on prior research that was performed, financed, or both in the public sector.},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={Basic investigations conducted at universities and academic medical centers, usually publicly funded, often pro- duce key insights about the mecha- nisms underlying physiological function and disease states. Private corpora- tions can then commercialize these insights by designing and marketing new therapeutics or other medical tech- nologies based on them. In this chain of development, allowing patenting of each incremental innovation could risk generating a dense thicket of overlap- ping intellectual rights and thus hinder research efforts.},

abstract={It is well known that patent pools can enhance efficiency by eliminating the com- plements problem. This paper investigates how the presence of vertically integrated firms affects the economic impact of a patent pool. Without a patent pool, the presence of integrated firms may either increase or decrease the final product price as there are two countervailing effects – reduced double marginalization and raising rivals’ costs. However, when there is a patent pool, vertical integration always lowers the final product price. In conclusion, the economic efficiency arguments for patent pools are enhanced when some firms are vertically integrated.},

discipline={Econ},

industry={General},

thicket_stance={Pro},

abstract={},

discipline={Law},

industry={General},

thicket_stance={Assumed Pro},

abstract={},

discipline={Econ},

industry={General},

thicket_stance={Weak Pro},

publisher = {The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School},

copyright = {Copyright © 2004 The University of Chicago},

research_type={Empirical},

industry={General},

abstract={},

discipline={Law},

industry={General},

thicket_stance={Weak Pro},

year={2006},

abstract={A patent pool is a cooperative arrangement between several patent holders, all of them necessary and fundamental to the creation of a product or process, where all of the patents can be licensed at a single price. They are an attractive option for fragmented patent landscapes, where they are created in hopes of avoiding the high cost associated with acquiring numerous licensing agreements, avoid widespread patent disputes, and help create a standard, amongst other reasons. This issue is especially relevant to the emerging scientific field of nanotechnology, where there is widespread concern about the fragmentation of the intellectual property landscape. This paper aimed to develop a general list of criteria to aid in determining whether patent pools are a viable option for a market by examining relevant literature and conducting interviews; it was then applied to the dendritic nanotechnology’s drug delivery and pharmaceutical applications. The completed list had nine criteria and, when applied to the dendritic nanotechnology market, concludes that a patent pool will not be necessary for the continued advancement of this application. The primary reason is that a huge amount of patents are in control of one company alone, Dendritic Nanotechnologies, and seem to be the primary source for the most highly sought after dendritic patents.},

thicket_stance={Assumed Pro},

thicket_stance_extract={They are often viewed as the "simplest solution" to intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets of IP (a.k.a patent thickets) or are uncertain if there is possible infringement of patent issues (a.k.a. Patent Hold-Up).},

year={2009},

abstract={A new survey shows scientists consider the proliferation of intellectual property protection to have a strongly negative effect on research.},

thicket_stance={Anti},

thicket_stance_extract={Our respondents do not encounter an anticommons or a patent thicket. Rather, they believe that institutionally mandated MTAs put sand in the wheels of a lively system of intradisciplinary exchanges of research tools. Seeing no countervailing effect on the supply of these tools, they conclude that patenting impedes the progress of research.},

discipline={Econ},

research_type={Theory},

thicket_stance={Pro},

thicket_stance_extract={Similarly, patent thickets can have deleterious effects on both competition and innovation.},

discipline={Law},

research_type={Discussion},

thicket_stance={Pro},

thicket_stance_extract={The dispersion of overlapping patents across too many firms can also create an anticommons or thicket problem, making effective use of the technology difficult, if not impossible},

copyright = {Copyright © 2005 American Economic Association},

discipline={Econ},

industry={General},

thicket_stance={Pro},

abstract={},

discipline={Econ},

industry={General},

thicket_stance={Assumed Pro},

discipline={Econ},

research_type={Theory},

thicket_stance={Pro},

thicket_stance_extract={Many observers have suggested that patent-thicket problems where key patents are widely held affect many emerging industries. Patent thickets may lead to three problems. First, royalty stacking may result: each individual patent holder may charge a royalty that seems reasonable when viewed in isolation, but together they represent an unreasonable burden. Second, even if other firms agree to license their patents at a modest rate, a hold-out problem may result if a single firm then sets a high license fee for its technology Finally, the very process of arranging the needed licenses may prove to be time consuming. Patent pools thus offer a one-stop shop through which these problems can be avoided.},

abstract={Economists have debated the extent to which strengthening patent protection spurs or detracts from technological innovation. This paper examines the reduction of software copyright protection in the Lotus v. Borland decision. If patent and copyright protections are substitutes, weakening of one form should be associated with an increased reliance on the other. We find that the firms affected by the diminution of copyright protection disproportionately accelerated their patenting in subsequent years. But little evidence can be found for any harmful effects on firms' performance and incentive to innovate: in fact, the increased reliance on patents is correlated with growth in measures such as sales and R&D expenditures.},

discipline={Econ},

thicket_stance={Weak Pro},

thicket_stance_extract={The environment is a complex one: many other changes, such as the widespread dissemination of the Internet, may have differentially affected firms during this period. While our result contradicts the claim by Bessen and Hunt (2004) that software patents substitute for R&D at the firm level, increased reliance on patenting could at the same time contribute to patent thickets that slow down overall innovation in the industry. Therefore, the patent thicket problem – an overlapping set of patent rights requiring those seeking to commercialize new technology obtain licenses from multiple patentees (Shapiro, 2001) – could still exist},

publisher={Wiley Online Library},

abstract={},

thicket_stance={Assumed Pro},

thicket_stance_extract={Numerous commentators have suggested that the proliferation of awards has had socially detrimental consequences: overlapping intellectual property rights may make it difficult for inventors to commercialize new innovations (Gallini, 2002 reviews this literature). Patent pools have been proposed by Merges (1999), Priest (1977), Shapiro (2000), and the U.S. Patent and Trademark Office (Clark, Piccolo, Stanton, and Tyson, 2001) as away in which firms can address "patent thicket" problems. Indeed, patent pools have become economically significant. Clarkson (2003) estimates that sales in 2001 of devices based inwhole or in part on pooled patents were at least $100 billion. Were suggestions to facilitate the formation of patent pools to be adopted, their role might approach that seen in the early days of the twentieth century, when many (if not most) important manufacturing industries had a patent-pooling arrangement.},

discipline={Econ},

research_type={Theory},

thicket_stance={Neutral},

thicket_stance_extract={When the inputs are complements, the profitability of the innovation is decreasing in the technological complexity. In the limit (when n -> infinity), when the degree of substitutability is below a threshold level, which is higher than 1, the innovation is never profitable. This paper therefore gives a formal treatment of the tragedy of the anticommons. On the other hand, when the inputs are substitutes, the profitability of the innovation is increasing in technological complexity. Even in this case, when n -> infinity, the cost of gathering all the inputs for the innovation is always too high from a social point of view and thus the probability of innovation is suboptimal.},

abstract={Despite the impressive pace of modern invention, a certain “patent thicket” effect that may be impeding what has become an increasingly difficult road to the commercialization of new technologies. Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and as a result, are often subject to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies. The difficulties of acquiring licenses (e.g. hold-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologies. As such, patent pooling, once condemned as facilitating antitrust violations in past eras, has been reintroduced as a practice that, if properly structured, has potentially strong pro-competitive benefits. Patent pooling has the potential to reduce the level of research and invention in new technologies that can compete with an incumbent standard. Recent patent jurisprudence and lenient federal antitrust agency of recent patent pooling proposals seem to create an environment that encourages the resurgence of patent pooling.},

discipline={Law},

thicket_stance={Assumed Pro},

thicket_stance_extract={Despite the impressive pace of modern invention, commentators have observed a certain "patent thicket" effect that may be impeding what has become an increasingly difficult road to the commercialization of new technologies.1 Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and as a result, are often subject to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies.2 The difficulties of acquiring licenses (e.g., hold-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologies.},

abstract={Many key industries (e.g., biomedical, pharmaceuticals, telecommunications, and information technologies) are characterized by cumulative innovations, where the introduction of a new product or service often requires many complementary technologies. When these technologies are protected by intellectual property rights owned by many firms, patent thickets exist, which researchers have argued may hinder the development of cumulative innovations. Specifically, patent thickets may lead to excessive royalty burdens for potential licensees, which is called ‘‘royalty stacking,’’ and if such costs are passed on to consumers, prices of products based on cumulative technologies will be driven up, dubbed as ‘‘double marginalization.’’ The literature, however, does not address these issues under different forms of licensing contracts. This article develops a game-theoretic model where a downstream firm seeks to license N patents that read on its product from upstream firms. It discusses a variety of licensing forms widely used in practice and attempts to discover whether royalty stacking and double marginalization occur under these forms of licenses. It also studies the impact of bargaining power between parties. It is found that when patent ownership becomes more fragmented, neither royalty stacking nor double marginalization occurs under profit-based royalty, fixed fee, and hybrid licenses. Such problems occur only under pure quantity-based or pure revenue-based royalty licenses when the downstream firm’s bargaining power is low. It is also shown that no matter how fragmented the ownership structure of patent is, hybrid licenses consisting of a fixed fee and a quantity- or revenue-based royalty rate lead to the same market outcomes as a fully integrated firm that owns all the patents and the downstream market. This article has interesting implications for both research and practice. First, the results show that even under the same patent ownership structure, different forms of licenses lead to quite different market outcomes. Therefore, it is suggested that firms and policy makers pay more attention to contractual forms of licenses when trying to minimize the negative impact of patent thickets. Second, the extant literature has largely assumed that quantity-based royalties are used, where double marginalization is the most severe. In practice, revenue-based royalties are most common, under which double marginalization is much milder. Third, the results show that patent pools can be most effective in mitigating royalty stacking and double marginalization when quantity-based or revenue-based royalties are the sole or primary payment form, especially when downstream firms have low bargaining power.},

discipline={Econ},

industry={General},

thicket_stance={Assumed Pro},

discipline={Econ},

research_type={Empirical},

thicket_stance={Assumed Anti},

thicket_stance_extract={With the power of the intellectual regime, internal sequential innovations offer a larger thicket of protection that can define the underlying technologies in a set of overlapping patents},

year={2004},

abstract={The patent is supposed to be a means to an end, that end being innovation. Whether the innovation comes from the protection the patent affords the inventor, or from the dissemination of the information of invention the patent allows, the patent is not meant to be an end in itself. This seems to be changing, the patent acquiring a strategic value increasingly independent of innovation. If this development has gone largely unnoticed, it may be because the patent system tends to be viewed from the entrenched perspectives of lawyers and economists, and of a number of interest groups that justify their reliance on the system in terms of the innovation it is supposed to encourage. These groups have never included small firms and developing countries in whose name they frequently defend the patent system. They may have some difficulty justifying a system whose strategic value is so divorced from its value for innovation.},

thicket_stance={Weak Pro},

thicket_stance_extract={The pharmaceutical industry has been instrumental in creating a patent system for the pharmaceutical industry, appropriate to the orderly innovation of that industry. Acceptance of the innovation myth has meant that this logic is rarely challenged. Thus, for instance, development may relate to many patents, not just one (Heller and Eisenberg, 1998). The costs of navigating through mazes of overlapping patent rights – through patent thickets – are likely to be considerable (Shapiro, 2001), and are likely to be an obstacle to innovation.},

publisher={SAGE Publications},

abstract={Patents are effective tools for promoting innovation in the pharmaceutical sector. Originator companies should be able to recoup their R & D investments during the term of the basic patent / SPC on an active pharmaceutical substance. Generic competition should be available immediately after expiry of that term. The chances of market entry for generic medicines companies in all markets the day following expiry of the main basic patent in all European Union markets is, however, not possible or, at best, is extremely diffi cult. Due to a diminishing number of newly registered products and contracting product pipelines, originator companies may be tempted to unjustly prolong the patent monopoly of existing products. The result is known as the ‘ evergreening ’ of a basic patent with the help of follow-on patents to keep generic competitors off the market. These follow-on patents are often weak or trivial and, upon careful examination, it is clear that they should never have been granted. Patent quality is therefore of the utmost importance. The European patent system should only reward true inventions and should discourage patent applications for ordinary innovation. An important way of reducing the incidence of poor quality follow-on patents is to remedy certain structural defi ciencies and weaknesses in the current examination procedure. Priority must be given to ensuring that the European Patent Offi ce (EPO) has the resources it needs to continue to improve the quality of patent examiners, along with their training and remuneration, and to increase the number of more experienced senior examiners in order to give every patent application the deliberate, expert review it deserves. This would lead to a more stringent application of the patentability requirements and fewer trivial patents. Applicants should be more rigorously required to provide patent applications of the highest quality accompanied by all relevant information at the start of the examination process. Similarly, they should be under obligation to disclose all information known to them that is material to the patentability of their invention. Furthermore, better third-party participation would also help to avoid inappropriate follow-on patents from being granted. When such patents are granted, an immediate review should be possible to avoid the assertion of ultimately invalid patents to hinder generic competition. This would require an acceleration of the current opposition proceedings that today can take many years. The structure established under the European Patent Convention only provides for a common and single European patent application and granting system by the EPO. A European patent is not a unitary patent, but essentially a bundle of national patents. As a result, questions of patent infringement and validity are governed by various national laws and are handled by the national courts operating under different procedural rules. This purely national litigation system results in a complex arena of multiple patent litigation involving high costs, forum shopping and diverging, even contradictory, court decisions. The lack of a central judiciary composed of experienced patent judges is regarded as one of the major defects in the current patent system. An effective solution would be the creation of a central European patent court that would deal with questions of invalidity and infringement at a pan-European level. Until this has been achieved, specialised national patent courts should be created with technically skilled judges with powers to reach a decision within an acceptable timeframe. Furthermore, the standard for obtaining an interim injunction should be returned to its roots as an equitable remedy since injunctions today are often used simply as a litigious tactic. This change would require a litigant to establish the existence of irreparable harm that cannot be compensated by monetary damages before a court would take the far-reaching step of enjoining a product. Finally, measures should be taken to ensure that originator companies do not use other means to unjustly prolong their monopoly by, for example, introducing a system of patent linkage, obtaining improperly granted SPCs, deploying inaccurate marketing campaigns for promoting ‘ new ’ products with no substantial added therapeutic value as innovative products, etc.},

thicket_stance={Weak Pro},

thicket_stance_extract={Certain structural deficiencies and weaknesses in the current examination procedure, however, result in the grant of patents of variable quality, giving a patent owner / originator company facing expiry of a basic product patent the opportunity to create what is known as a ‘patent thicket’ (see below). The most obvious structural issues are discussed below.},

discipline={Econ},

research_type={Theory},

thicket_stance={Assumed Pro},

thicket_stance_extract={The present paper upholds policy arguments that emphasize the importance of a severe application of this patentability requirement as a means to limit the size of "patent thickets" and to promote innovation in sectors where complementary innovations are frequent (Jaffe, 2000; Barton, 2003; FTC, 2003)... When ?final products embody several complementary innovations, the scattering of patents between various owners jeopardizes the commercial exploitation of the products because of negotiation and royalty stacking issues (Merges & Nelson, 1990; Heller & Eisenberg, 1998; Shapiro, 2001)},

publisher={MIT Press},

abstract={},

industry={General},

thicket_stance={Weak Pro},

publisher={Oxford University Press},

abstract={The United States Patent and Trademark Office has acquired a well-deserved reputation for inefficacy and inefficiency. Proposals for reforming the patent office have thus focused on improving the quality of patent review while decreasing its cost. Yet this view overlooks the valuable function performed by the high costs associated with obtaining a patent: these costs serve as an effective screen against low-value patents. Moreover, due to asymmetries in patent values, the costly screen is likely to select against socially harmful patents in disproportionate numbers. Although the patent office is the most prominent forum in which this type of costly screening operates, it is not the only one. In a variety of other contexts, the private costs of navigating an administrative process may complement the process itself in screening out unwanted participants.},

industry={General},

thicket_stance={Assumed Pro},

abstract={},

discipline={Law},

thicket_stance={Pro},

thicket_stance_extract={As noted above, the existence of the patent thicket and the problem of low quality patents make it especially easy for trolls to acquire patents that arguably cover one of the hundreds or thousands of processes incorporated in a single high technology product. The troll waits until a company with deep pockets makes irreversible investments in the arguably infringing technology. The troll may even revise the terms of the patent (through a patent "reissuance" or "continuation") in light of the target's investment in order to strengthen the infringement claim. The troll then uses the threat of an injunction shutting down production to demand a significant share of the total profit associated with the product. This gamesmanship results in no social benefit and a great deal of harm.},

publisher={Landes Bioscience},

abstract={Patents are exclusive rights for a limited period of time that are granetd to provide an incentive for innovation and in exchange for the public disclosure of an invention. Patenting in the medical field, especially in the field of human vaccine technologies, is full of pitfalls, because the products that finally access the market are often covered by a multitude of exclusive IP rights. This commentary gives an overview on obstacles in vaccine patenting and how to overcome them, and intends to provide a patenting guideline for researchers.},

thicket_stance={Weak Pro},

thicket_stance_extract={Managing the patent thicket in the fields of vaccine technology is challenging as one product may be covered by a plurality of exclusive IP rights that have to be considered when developing a product and building up a patent portfolio. Consequently, licensing is a key point in the vaccine industry.If a basic patent is held by a powerful patent holder refusing to grant a license under reasonable commercial terms or abuses a market-dominating position, it should be examined, whether the requirements to request a compulsory license are fulfilled.},

abstract={},

discipline={Law},

industry={General},

thicket_stance={Weak Pro},

publisher={US FTC},

abstract={},

industry={General},

thicket_stance_extract={Moreover, even if there were a "patent thicket" problem, others state that firms have found a range of means to overcome these obstacles, including cross-licenses and patent pooling.},

thicket_def={#A-S, Quotes Shapiro, References Shapiro},

year={2009},

abstract={},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={Pharmaceutical companies typically grow a patent thicket seeking a wide range of chemical variants and analogs, methods of synthesizing the drug, chemical intermediates in this synthesis, different crystal forms, different finished dosage forms and various methods of use. 62 Obtaining permission from various patent holders for use of patents can prove to be difficult particularly if the patent holder’s objective in creating the thicket is to block innovation by outsiders. Because useful innovation in biotechnology requires multiple inventive steps and technologies, we could conceivably witness cumulative innovation with infringement on many patents which ultimately serves as a drag on innovation and commercialization.},

discipline={Law},

research_type={Discussion},

thicket_stance={Assumed Pro},

thicket_stance_extract={While many companies will want to use these nanomaterials, the LuxReport states these companies will be forced to license patents from many different sources. Potentially, there will be significant transactional costs for further nanotechnology developments due to these overlapping claims. Moreover, the quality of these nanotechnology patents has been repeatedly called into question," so the navigation of a patent thicket will have to be around these questionable patents.},

discipline={Law},

research_type={Discussion},

thicket_stance={Neutral},

thicket_stance_extract={The competitive offensive advantage associated with a patent thicket can be high. It follows, of course, that there is also a substantial defensive advantage as well. The result may be a “race” to grow one’s IP portfolio. Unfortunately, however, it is not clear whether that race will be “to the top” (i.e., in the social interest), or “to the bottom” (i.e., harmful from a social point of view).},

abstract={},

discipline={Policy Report},

thicket_def={#A, #B, #D, References Heller/Eisenberg, Unspecified Blocking Mechanism, Single Firm},

thicket_def_extract={Concerns have been expressed in the academic community that the propensity to patent and the extensive use of cross licensing has resulted in a “patent thicket” where ownership of patent title is used to block others from innovating... Others agree that innovation in the software industry is not hindered by a patent thicket. In one study where actual software companies and investors were surveyed, the analyst found new companies were not concerned with existing patent portfolios as a barrier to their work},

year={2003},

abstract={Patents, patent litigation, and patent settlements increasingly influence competition. Settlements of patent disputes come in many forms,including licensing and cross-licensing agreements, patent pools, mergers, and joint ventures. While frequently procompetitive, such settlements can stifle competition and harm consumers. I propose a specific antitrust rule limiting such settlements: a settlement must leave consumers at least as well off as they would have been from ongoing patent litigation. After establishing that profitable settlements satisfying this constraint generally exist, I show how this antitrust rule can be used to evaluate three types of settlements: mergers, patent pools, and negotiated entry dates.},

thicket_stance={Assumed Pro},

thicket_stance_extract={As described in Shapiro (2001), more and more companies are facing a patent thicket requiring them to obtain multiple licenses to bring their products safely to market.},

discipline={Law},

research_type={Discussion},

thicket_stance={Neutral},

thicket_stance_extract={On the one hand, the fear of the patent thicket has been raised: "[i]f you get monopoly rights down at the bottom, you may stifle competition that uses those patents later on and so . . . the breadth and utilization of patent rights can be used not only to stifle competition, but also have adverse effects in the long run on innovation."9On the other hand, encouraging private investment in commercialization has also been raised: "[b]y enabling corporations to negotiate exclusive licenses of promising technologies [that were publicly funded],... [this] encourage[s] them to invest in the additional research, development, and manufacturing capabilities needed to bring new products to market." The information technology industry did not suffer severe patent deadlock in its early years while the radio industry did},

publisher = {The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School},

abstract = {Abstract Production requiring licensing groups of complementary patents implements a coordination game among patent holders, who can price patents by choosing among combinations of fixed and royalty fees. Summed across patents, these fees become the total producer cost of the package of patents. Royalties, because they function as excise taxes, add to marginal costs, resulting in higher prices and reduced quantities of the downstream product and lower payoffs to the patent holders. Using fixed fees eliminates this inefficiency but yields a more complex coordination game in which there are multiple equilibria, which are very fragile in that small mistakes can lead the downstream firm to not license the technology, resulting in inefficient outcomes. We report on a laboratory market investigation of the efficiency effects of coordinated pricing of patents in a patent pool. We find that pool-like pricing agreements can yield fewer coordination failures in the pricing of complementary patents.},

research_type={Theory, Empirical},

industry={General},

research_type={Theory},

industry={General},

thicket_stance_extract={One might argue that the rate of innovation or at least of patenting is in fact too high in some sectors, particularly those in which the patent thicket problem is severe. A problem 26 with this argument is that the returns to major innovations would be reduced by collective negotiation, not just the returns to the minor advances that contribute more to patent thickets than to real progress. },

thicket_def={#C1-ST, References Shapiro, Dubious Patents, Unspecified Blocking Mechanism (Not DHCI)},

discipline={Law},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={Although industry analysts assert that nanotech is in its infancy, patent thickets on fundamental nano-scale materials, tools and processes are already creating thorny barriers for would-be innovators.},

copyright = {Copyright © 2003 Wiley},

abstract={Settlement outcomes in patent litigation are modeled as resulting from strategies pursued by firms with their patented technologies. Hypotheses are derived for two types of influences: the use of patents as isolating mechanisms to protect valuable strategic stakes, and their 'defensive' role in obtaining access to external technologies through mutual hold-up. Parameter estimates from a sample selection probit model provide support for the strategic stakes hypotheses, while the evidence for mutual hold-up is inconclusive. Interindustry comparisons show that nonsettlement of patent suits in both research medicines and computers is increased by strategic stakes and, in addition, mutual hold-up appears to play an important role in computer patent suits.},

thicket_stance={Anti},

thicket_stance_extract={When strong, watertight patents are available, as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). On the other hand, in systems products industries, thickets of patents may be necessary to foil attempts to invent around the patent, and obtain a robust patent position. Moreover, defen sive patenting?the building of large patent port folios may become necessary if rivals, aided by a strong enforcement regime, are able to effectively threaten to hold up a firm's commercial operations (Hall and Ziedonis, 2001).},

publisher={JSTOR},

abstract={},

industry={General},

thicket_stance={Pro},

discipline={Law},

research_type={Discussion},

thicket_stance={Assumed Pro},

thicket_stance_extract={The development of such a patent thicket could deter further innovation, 6 and the active enforcement by nanotechnology patent holders of their exclusivity rights ultimately could result in the creation of a nanotechnology anticommons-a situation in which a scarce resource becomes prone to underuse because there are too many owners holding the right to exclude others from that resource, and no one has an effective privilege of use.},

discipline={Law},

research_type={Theory},

thicket_stance={Pro},

thicket_stance_extract={The patent thicket is a problem because useful innovation in biotechnology requires multiple inventive steps and technologies. The field of biotechnology is particularly dependent on the cumulative work of many researchers, and therefore is vulnerable to the “anticommons” problem mentioned earlier.},

research_type={Discussion},

industry={Genetics},

thicket_stance_extract={Moreover, there are factors that may lead to the emergence of a patent blocking problem in genetics in the future: increased awareness among researchers; and growing rate of patent enforcement caused by the strategic enforcement of their rights by patent holders and the proliferating complexity of biomedical research requiring a broader range and greater number of inputs of which a growing number is patented.},

thicket_def={#A-T, References Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Transaction Costs},

copyright = {Copyright © 2010 American Association for the Advancement of Science},

abstract={Compulsory licenses and patent pools will assist modern patent law in fueling genetic test development.},

research_type={Discussion},

thicket_stance={Weak Pro},

thicket_stance_extract={Empirical data do not yet confirm existence of a patent thicket in genetics at large (14, 15). However, thicket problems in genetic diag- nostics could grow with shifts (i) from mono- genetic to multifactorial testing (multiplex diagnostics) and (ii) toward diagnostics based on genome-wide association studies driven by the high-throughput of single nucleotide polymorphism platforms and next-generation sequencing possibilities (6, 16). Although not an illustrative example of this phenomenon, the Myriad decision has invigorated concerns about potential negative effects of a dense and dispersed patent landscape.},

year={2006},

abstract={There is increasing concern that overlapping patents in the field of genetics will create a costly and legally complex situation known as a patent thicket, which, along with the associated issues of accumulating royalty payments, can act as a disincentive for innovation. One potential means of preventing this is for the patent holders to enter into a so-called patent pool, such as those established in the electronics and telecommunications industries. Precedents for these also exist in the field of genetics, notably with the patents pertaining to the SARS genome. In this review, we initially address the patent pool concept in general and its application in genetics. Following this, we will explore patent pools in the diagnostic field in more detail, and examine some existing and novel examples of patent pools in genetics.},

research_type={Discussion},

thicket_stance_extract={There is increasing concern that overlapping patents in the field of genetics will create a costly and legally complex situation known as a patent thicket, which, along with the associated issues of accumulating royalty payments, can act as a disincentive for innovation.},

thicket_def={#A-T, #B1-T, Quotes Shapiro, References Shapiro, References Heller/Eisenberg, Diversely-Held, Unspecified Blocking Mechanism},

publisher = {Columbia Law Review Association, Inc.},

abstract = {This Essay challenges a central tenet of the recent criticism of intellectual property rights: the suggestion that the control conferred by such rights is detrimental to the continued flourishing of a public domain of ideas and information. In this Essay, Professor Wagner argues that such theories understate the significance of the intangible nature of information, and thus overlook the contribution that even perfectly controlled intellectual creations make to the public domain. In addition, this Essay shows that perfect control of propertized information--an animating assumption in much of the contemporary criticism--is both counterfactual and likely to remain so. These findings suggest that increasing the appropriability of information goods is likely to increase, rather than diminish, the quantity of "open" information. Further, the benefits of control in fostering coordination and enabling flexibility in arrangements are essential elements of promoting progress in a changing world.},

discipline={Law},

research_type={Theory, Discussion},