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@article{barnett2009isintellectual,
title = {Is Intellectual Property Trivial?},
author = {Barnett, Jonathan M.},
journal = {University of Pennsylvania Law Review},
volume = {157},
number = {6},
pages = {pp. 1691-1742},
year = {2009},
abstract={},
discipline={Law},
research_type={theory, empirical},
industry={general},
thicket_stance={neutral},
thicket_stance_extract={But normative analysis of intel- lectual property coverage must be dynamic (and complex) if it is to be realistic: that is, it must anticipate that any downward adjustment in intellectual property coverage will trigger a variety of possible market responses that may neutralize or even reverse the adjustment, result- ing in (i) no net change in access costs, (ii) a net reduction in access costs, or (iii) in the most perverse case, even a net increase in access costs coupled with a reduction in innovation gains.},
thicket_def={def12},
thicket_def_extract={This is a common theme of the expanding literature on "anticommons" effects, whereby proliferating intellectual property rights creates a "thicket" that impedes subsequent innovation. See, e.g., Michael A. Heller... Michael A. Heller & Rebecca S. Eisenberg...},
tags={Overview of Patent-based IP},
filename={Barnett (2009) - Is Intellectual Property Trivial.pdf}
}
publisher={HeinOnline},
publisher={Emerald Group Publishing Limited}, abstract={Intellectual property rights and competition policy are intimately related. In this paper I survey Discusses how to promote the economic literature analyzing development of nanotechnology by overcoming problems with the interaction between intellectual property law and competition law and patent system. Considers how the boundary between these two policies is drawn in practice. Recognizing that intellectual property rights patent thickets and competition law can interact in many different ways, the presentation focuses on several key issuespatent trolls may discourage innovative work. The economic literature on Describes the interaction between competition law and intellectual property rights shows that these regulatory systems are consistent in terms advantages of licensing patents by means of basic principlesa patent pool. Significant tensions exist, however, and it is difficult Examines to balance IPR and competition law in practice. The significant differences in approach between what extent inventors can benefit from the United States and the European Union simply reflect experience of the underlying reality that efforts to achieve a sensible balance do not result in policy harmonizationopen-source software movement.}, discipline={EconLaw},
@article{hall2007patentsdevlin2009indeterminism, title={Patents and Patent Policy}, author={Hall, B.H.}, journal={Oxford Review of Economic Policy}, volume={23}, number={4}, pages={568--587}, year={2007}, abstract={A patent is the legal right of an inventor to exclude others from making or using a particular invention. This right is sometimes termed an “intellectual property right” Indeterminism and is viewed as an incentive for innovation. This article surveys the evidence on patent effectiveness in encouraging innovation and reviews the current controversies in patent policy.}, discipline={Econ}, research_type={Theory, Discussion}, industry={ICT, Biology}, thicket_stance={Assumed Pro}, thicket_stance_extract={The first of the problems Barr describes is clearly a case of mutually assured destruction that leaves the firms in question no better (and no worse) off than if they were not accumulating massive numbers of patents for defensive purposes, and yet at the same time is a very costly strategy. Increasing the administrative costs of patents to firms or reforms within the industry itself to discourage this behavior would seem to be the obvious solution, since it would be in the interest of all firms involved to reduce spending on this activity.}, thicket_def={Def4}, thicket_def_extract={During the U.S. Federal Trade Commission/Department of Justice hearings on the patent system and antitrust policy in 2002, a number of industry representatives expressed concerns about the difficulty of negotiating the patent thicket in their area and the risk of being “heldProperty-up” ex post by a patent on a technology that was only a small component of their product.}, tags={General Patent Discussion}, filename={Hall (2007) - Patents And Patent Policy.pdf} } @article{kieff2011removing, title = {Removing Property from Intellectual Property and (Intended?) Pernicious Impacts on Innovation and CompetitionEquation}, author = {KieffDevlin, F. ScottAlan}, journal = {Supreme Court Economic Yale Law & Policy Review}, volume = {1928},
@article{liu2008internalfeldman2008open, title={Internal Sequential InnovationsOpen Source, Open Access, Open Transfer: How does Interrelatedness Affect Patent Renewal?Market Approaches to Research Bottlenecks}, author={LiuFeldman, KR. and ArthursNelson, JK. and Cullen, J. and Alexander, R.}, journal={Research Policy}, volume={37}, number={5}, pages={946--953},
@article{shapiro2003antitrusthall2007patents, title={Antitrust limits to patent settlementsPatents and Patent Policy}, author={ShapiroHall, CB.H.}, journal={RAND Journal Oxford Review of EconomicsEconomic Policy}, volume={23}, number={4}, pages={391568--411587}, year={20032007}, abstract={Patents, A patent litigation, and patent settlements increasingly influence competition. Settlements is the legal right of patent disputes come in many forms,including licensing and cross-licensing agreements, patent pools, mergers, and joint venturesan inventor to exclude others from making or using a particular invention. While frequently procompetitive, such settlements can stifle competition This right is sometimes termed an “intellectual property right” and harm consumers. I propose a specific antitrust rule limiting such settlements: a settlement must leave consumers at least is viewed as well off as they would have been from ongoing patent litigationan incentive for innovation. 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, This article surveys the evidence on patent pools, effectiveness in encouraging innovation and negotiated entry datesreviews the current controversies in patent policy.}, discipline={econEcon}, research_type={theoryTheory, Discussion}, industry={generalICT, Biotech},
@article{schmidt2008complementaryholman2006clearing, title={Complementary Patents and Market StructureClearing a Path through the Patent Thicket}, author={SchmidtHolman, KC.}, yearjournal={Cell}, volume={125}, number={4}, pages={2008629--633}, publisheryear={CEPR Discussion Paper No. DP70052006}, abstract={Many high technology goods are based on standards that require Patents do not always promote innovation, particularly when they restrict access to several patents that are owned by different IP holders. We investigate fundamental scientific discoveries and the royalties chosen by IP holders under different market structures. Vertical integration tools of an IP holder and a downstream producer solves the double mark-up problem between these firmsbasic research. NeverthelessHowever, it there are legal and policy approaches that may raise royalty rates and reduce output as compared help to non-integration. Horizontal integration ameliorate problems associated with patenting these sorts of IP holders (or a patent pool) solves the complements problem but not the double mark-up problem. Vertical integration discourages entry and reduces innovation incentives, while horizontal integration always encourages entry and innovationinventions.}, discipline={EconLaw}, research_type={TheoryDiscussion}, industry={General, Academia}, thicket_stance={ProWeak Anti}, thicket_stance_extract={This “patent thicket” (ShapiroAlthough upstream patents have been widely criticized, and there are a number of cases where specific patents clearly seem to have impeded innovation, 2001) gives rise there is little objective evidence to support a complements problem: each patent holder does not internalize the negative external effect on the revenues of the other patent holders when setting his royaltiesconclusion that patents constitute a widespread substantial obstacle to biomedical R&D, so particularly in the sum of all royalties will be inefficiently highacademic sector.}, thicket_def={def1#B1-S, References Heller/Eisenberg, Complementary Inputs, Diversely-Held}, thicket_def_extract={This Upstream patents have been criticized on a number of counts. For example, it has been proposed that the proliferation of patents covering research tools has resulted in a “patent thicket” thicket,” rendering it virtually impossible to conduct biomedical research without inadvertently infringing upon a host of conflicting patent claims (ShapiroHeller and Eisenberg, 20011998; Rai and Eisenberg, 2002) gives rise ... Although in theory a researcher should be able to a complements problem: each patent holder does license the necessary technology inputs, in practice it is generally not internalize the negative external effect on feasible owing to the revenues large number of the other different patent holders when setting his royalties, so the sum of all royalties will be inefficiently higheach with their own licensing agenda.}, tags={patent pools#Industry Commentary, #IPR Reform, Research Exemptions, #Effects on Academic Research, Stricter Patenting Requirements}, filename={Schmidt Holman (20082006) - Complementary Patents And Market StructureClearing A Path Through The Patent Thicket.pdf}
abstractpublisher={This paper studies American Association for the behaviour Advancement of
firms facing the decision to create a patent fenceScience}, de
fined as a portfolio of substitute patents. We set up a patent race model, where
firms can decide either to patent their inventions, or to rely on secrecy. It is shown that fi
rms build patent fences, when the duopoly profi
ts net of R&D costs are positive. We also demonstrate that in this context, a fi
rm will rely on secrecy when the speed of discovery of the subsequent invention is high compared to the competitors. Furthermore, we compare the model under the First-to-Invent and First-to-File legal rules. Finally, we analyze the welfare implications of patent fences. abstract={}, discipline={EconGeneral Science}, research_type={TheoryDiscussion}, industry={GeneralGenetics}, thicket_stance={Assumed ProAnti}, thicket_stance_extract={While However, for the issue of "thickets" of complementary technologies most part, fears expressed concerning human gene patents have not been manifested overtly in cumulative innovations patent litigation. Human gene patent litigation invariably has been extensively analyzed2involved an alleged infringer engaged in substantial commercial activities focused specifically on the single gene that is the subject of the asserted patent, as well as the institutional solutions to overcome this problem antithesis of a patent thicket scenario (14). Some have speculated that DNA microarray technology is particularly at risk of becoming entangled in a thicket (Lerner and Tirole6). However, 2005 and ShapiroI found no instance in which a human gene patent was asserted against the manufacturer or user of microarray technology, 2001), little attention has been paid to fencing although microarray companies have experienced substantial patent litigation involving nongene patents so farsince the mid-1990s.}, thicket_def={def10#B1, References Heller/Eisenberg, Unspecified Blocking Mechanism}, thicket_def_extract={More precisely,
firms will patent a coherent group of inventions, which form what is sometimes called Some have postulated that a patent "bulk", aimed at protecting one product. The "bulk" can either be a "fencethicket" of substitute patents or will impede basic biomedical research and will stifle development and utilization of technologies that involve the use of multiple genetic sequences; DNA microarrays are a "thicket" of complementary patents prime example (see Reitzig5, 2004 and Cohen et al., 20006).}, tags={patent fences, #Industry Commentary}, filename={Schneider Holman (2008) - Fences And Competition Trends In Human Gene Patent RacesLitigation.pdf}
@article{van2006clearingjensen2004achieving, title={A Clearing House for Diagnostic Testing: Achieving the Solution to Ensure Access to and Use Optimal Power of Patented Genetic Inventions?Patent Rights}, author={Van Zimmeren, E. and VerbeureJensen, BP. and Matthijs, GH. and Van OverwalleWebster, GE.}, journal={Bulletin of the World Health OrganizationAustralian Economic Review}, volume={8437}, number={54}, pages={352419--359426}, year={2006}, publisher={SciELO Public Health2004}, abstract={In genetic diagnosticsthis paper, we identify three policy instruments governments have at their disposal to affect the emergence of a so-called “patent thicket” is imminent. Such an overlapping set power of patent rights may have restrictive effects on further research and development to prevent imitation: the size of diagnostic tests, and the provision of clinical diagnostic services. Currently, two models that may facilitate access inventive step used to and use of patented genetic inventions are attracting much debate in various national and international fora: make the patent pools and clearing houses. In this articlegranting decision, we explore the concept of clearing houses. Several types rigour of clearing houses are identified. First, we describe and discuss two types that would provide access to information on the patented inventions: the information clearing house patent examination process and the technology exchange clearing house. Second, three types predisposition of clearing houses are analysed that not only offer access the courts to information but also provide an instrument to facilitate affirm the use of the patented inventions: the open access clearing house, the standardized licences clearing house and the royalty collection clearing house. A royalty collection clearing house for genetic diagnostic testing would be the most comprehensive as it would serve several functions: identifying patents and patent claims essential to diagnostic testing, matching licensees with licensors, developing and supplying standardized licences, collecting royalties, monitoring whether users respect licensing conditions, and providing dispute resolution services such as mediation and arbitrationoffice's decision. In this way, it might function as an effective model for users We develop a simple framework to facilitate access to and use analyse the effects of changing these policy instruments on ex ante investment in invention in the patented inventions. However, it remains to be seen whether patent holders with a strong patent portfolio will be convinced by light of recent concerns about the advantages potential effects of the royalty collection clearing house and be willing to participatesocially undesirable patents.}, discipline={Policy ReportEcon}, research_type={DiscussionTheory}, industry={GeneticsGeneral}, thicket_stance={Weakly Pro}, thicket_stance_extract={MoreoverIn general, there are factors that may lead a less rigorous examination is cheap to administer but induces uncertainty regarding the emergence of a patent blocking problem in genetics in the future: increased awareness among researchers; 's validity and growing rate of patent enforcement caused by thus diminishes the strategic enforcement power of their rights by patent holders and the proliferating complexity of biomedical patents to prevent imitation. This may have been alleged to give rise to unnecessary license fees, forgone research requiring a broader range opportunities, and greater number of inputs of which a growing number is patentedprojects abandoned by competitors who unjustly fear infringement litigation.}, thicket_def={def1#C1, Strategic Patenting (Bad), Broad Patents, Dubious Patents, Cummulative Invention}, thicket_def_extract={This pattern — the increasing number The patent owner may do this by creating a thicket of patentspantents, increasing patent breadth, and so other parties are swamped with so much complex technical documentation that they cannot separate the chaff from the issuance of patents on more basic discoveries — has created what some call a wheat. Developing patent thicket thickets is relatively easy to do in biotechnology: “an overlapping set of this regime since the patent rights requiring that those seeking to commercialize new technology obtain licenses from multiple patenteesexamination process is cursory.}, tags={patent pools#IPR Reform, Stricter Patenting Requirements, clearing housesReview of Patent Validity}, filename={VanZimmeren Jensen Webster (20062004) - A Clearing House For Diagnostic TestingAchieving The Optimal Power Of Patent Rights.pdf}
@article{wagner2003informationking2007clearing, title = {Information Wants to Be FreeClearing the Patent Thicket: Intellectual Property The Supreme Court and the Mythologies of ControlCongress Undertake Patent Reform}, author = {WagnerKing, RS.M. Polk}, journal = {Columbia Law ReviewIntell. Prop. \& Tech. LJ}, volume = {103}, number = {49}, pages = {pp. 99513--103413}, year = {2003}, publisher = {Columbia Law Review Association, Inc.2007}, 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.}, filename={Wagner (2003) - Information Wants To Be Free.pdf}
publisher={Taylor \& Francis}, abstract={This article investigates We study several interconnected problems that arise under the issue current U.S. patent system when a patent covers one component or feature of standardisation a complex product. This situation is common in the ICT information technology sectorof the economy. Our analysis applies to cases involving reasonable royalties, analysing but not lost profits. First, we show using bargaining theory that the threat to obtain a permanent injunction greatly enhances the most relevant aspects concerning intellectual property rights patent holder’s negotiating power, leading to royalty rates that exceed a natural benchmark range based on the value of the patented technology and anticompetitive strategies that can arise in standard setting organisationsthe strength of the patent. The strategic dimension Such royalty overcharges are especially great for weak patents covering a minor feature of this activity is also scrutiniseda product with a sizeable price/cost margin, highlighting the different approaches followed including products sold by firms that themselves have made substantial R&D investments. These royalty overcharges do not disappear even if the United States and by allegedly infringing firm is fully aware of the European Unionpatent when it initially designs its product. In this respectHowever, after underlining the benefits hold-up problems caused by the threat of processes not lead by public structuresinjunctions are reduced if courts regularly grant stays to permanent injunctions to give defendants time to redesign their products to avoid infringement when this is possible. Second, we show how hold-up problems are magnified in the article describes the fundamental role presence of internal regulationsroyalty stacking, i.e., when multiple patents read on a single product. Third, using third-generation cellular telephones and Wi-Fi as leading examples, we illustrate that royalty stacking can become a very serious problem, which are necessary both for especially in the purpose standard-setting context where hundreds or even thousands of having patents can read on a sound processsingle product standard. Fourth, we discuss the use of “reasonable royalties” to award damages in patent infringement cases. We report empirical results regarding the measurement of “reasonable royalties” by the courts and also reducing identify various practical problems that tend to lead courts to over-estimate “reasonable royalties” in the risk presence of collusion royalty stacking. Finally, we make suggestions for patent reform based on our theoretical and other anticompetitive conducts among membersempirical findings.}, discipline={Econ, Policy}, research_type={DiscussionTheory},
@article{carrier2012roadmaplemley2005patenting, title={A Roadmap to the Smartphone Patent Wars and FRAND LicensingPatenting Nanotechnology}, author={CarrierLemley, M.A.}, journal={CPI Antitrust ChronicleStanford Law Review}, volumepages={2601--630}, year={20122005}, abstract={The smartphone industry today Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is characterized by so signficant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a thicket new technology class designed to track nanotechnology products. Three big differences between the emerging science of patents nanotechnology and wars based on those other inventions make the role of patentsmore significant in this arena than elsewhere. Every day brings First, this is almost the first new field in a new lawsuit or development between Applecentury in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century - computer hardware, HTCsoftware, Microsoftthe Internet, even biotechnology- the basic building blocks of the field were either unpatented or teh patents were amde available to all users by government regulation. In others, Motorola Mobility (“MMI”)patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, Nokiaby contrast, companies and universities alike are patenting early and Samsungoften. The lawsuits span numerous courts and several continentsA second factor distinguishing nanotechnology is its unique cross-industry structure. And Unlike other new industries, in which the patentees are largerly actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they often pit Apple or Microsoft on one side and manufacturers participate, but in other industries as well.This overlap may signficantly affect thier incentives to license the patents. Finally, a large number of Google’s Android operating system—HTCthe basic nanotechnology patents have been issued to universities, MMIwhich have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, and Samsung—on their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the otherlicensing market turns out to be.},
@miscincollection{competition2008pharmaceuticallerner2008public, title={Pharmaceutical Sector Inquiry-Preliminary ReportPublic Policy Toward Patent Pools}, author={CompetitionLerner, J. and Tirole, J.}, booktitle={Innovation Policy and the Economy, DGVolume 8}, pages={157--186},
@article{cowin2007policylerner2007impact, title={Policy Options for What is the Improvement Impact of the European Software Patent SystemShifts? Evidence from Lotus v. Borland}, author={CowinLerner, RJ. and Van der EijckZhu, WF. }, journal={International Journal of Industrial Organization}, volume={25}, number={3}, pages={511--529}, year={2007}, 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 Lissonicopyright protections are substitutes, Fweakening 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 LotzR&D expenditures.}, discipline={Econ}, research_type={Empirical}, P industry={Software}, 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 Van OverwalleHunt (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}, thicket_def={#A, #B, References Shapiro, Diversely-Held, Overlapping Patents}, thicket_def_extract={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}, tags={#IPR Reform}, filename={Lerner Zhu (2007) - What Is The Impact Of Software Patent Shifts.pdf} } @article{lerner2007design, title={The Design of Patent Pools: The Determinants of Licensing Rules}, author={Lerner, GJ. and SchovsboTirole, J. and Strojwas, M.}, journal={Scientific Technology Options Assessment (STOA) The RAND Journal of the European ParliamentEconomics}, volume={38}, number={3}, pages={610--625},
@article{eisenmann2008managinglin2011licensing, title = {Managing Proprietary and Shared PlatformsLicensing Strategies in the Presence of Patent Thickets}, author = {EisenmannLin, Thomas RL.}, journal = {California Journal of Product Innovation Management Review}, volume = {5028}, number = {45}, pages = {pp. 31698--53725}, year={2011}, abstract = {In a platform-mediated networkMany key industries (e.g., biomedical, pharmaceuticals, telecommunications, and information technologies) are characterized by cumulative innovations, users rely on where the introduction of a common platform (provided new product or service often requires many complementary technologies. When these technologies are protected by one or more intermediaries) that encompasses infrastructure and rules required intellectual property rights owned by users many firms, patent thickets exist, which researchers have argued may hinder the development of cumulative innovations. Specifically, patent thickets may lead to transact with each other. A fundamental design decision excessive royalty burdens for firms that aspire potential licensees, which is called ‘‘royalty stacking,’’ and if such costs are passed on to develop platformconsumers, 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-mediated networks is whether theoretic model where a downstream firm seeks to preserve proprietary control or share their platform with rivalslicense N patents that read on its product from upstream firms. A proprietary platform has It discusses a single provider 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 solely controls its technology (for examplewhen patent ownership becomes more fragmented, Federal Expressneither royalty stacking nor double marginalization occurs under profit-based royalty, Apple Macintoshfixed fee, and hybrid licenses. Such problems occur only under pure quantity-based or Google)pure revenue-based royalty licenses when the downstream firm’s bargaining power is low. With It is also shown that no matter how fragmented the ownership structure of patent is, hybrid licenses consisting of a fixed fee and a shared platform such quantity- or revenue-based royalty rate lead to the same market outcomes as Visa, DVD, or Linux, multiple firms collaborate in developing a fully integrated firm that owns all the platform's technology patents and then compete in offering users different but compatible versions of the platformdownstream market. This article examines factors that favor proprietary versus shared models when designing platforms and then explains how management challenges differ has interesting implications for proprietary both research and shared platform providers when mobilizing new networkspractice.}First, year = {2008}the results show that even under the same patent ownership structure, publisher = {University different forms of California Press}licenses lead to quite different market outcomes. Therefore, copyright = {Copyright © 2008 University it is suggested that firms and policy makers pay more attention to contractual forms of licenses when trying to minimize the negative impact of California Presspatent 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={ManagementEcon}, research_type={DiscussionTheory}, industry={TelevisionGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={A second type of IP-based claim can occur when shared platforms rely on When these technologies are protected by intellectual property rights owned by many different patented technologiesfirms, patent thickets exist, each which researchers have argued may hinder the development of which has no obvious substitutecumulative innovations. Firms Specifically, patent thickets may find themselves in a patent "thicketlead to excessive royalty burdens for potential licensees," in which several parties is called ‘‘royalty stacking,’’ and if such costs are able passed on to derail a shared platform by threatening to withhold necessary contributions.12 Each firm can issue an ultimatumconsumers, demanding a large share prices of the platform's added valueproducts based on cumulative technologies will be driven up, dubbed as ‘‘double marginalization.’’}, thicket_def={Refs #B1, #D, References Heller/Eisenberg, References Shapiro, Overlapping Patents, Diversely-Held, Cummulative Invention}, thicket_def_extract={A second type of IP-based claim Related, and often overlapping, patents owned by many entities are often described as ‘‘patent thickets’’ and researchers have argued that patent thickets can occur when shared platforms rely on many different patented technologiesbe detrimental to innovation, each of which has no obvious substitute. Firms may find themselves especially in a patent "thicketinformation industries such as software (see, among others, Heller and Eisenberg, 1998; Lessig, 2001; Shapiro, 2001; Bessen and Maskin," in which several parties are able to derail a shared platform by threatening to withhold necessary contributions2009).12 Each firm can issue an ultimatum, demanding a large share of the platform's added value}, tags={Shared Platform#Private Mechanisms, Pools, Royalties, Licensing, Cumulative Innovation}, filename={Eisenmann Lin (20082011) - Managing Proprietary And Shared PlatformsLicensing Strategies In The Presence Of Patent Thickets.pdf}
disciplineabstract={Law}The patent is supposed to be a means to an end, research_type={Theory, Discussion}, industry={Biotechnology}, thicket_stance={Assumed Pro}, thicket_stance_extract={Scholars have used the term “patent thicket” to describe the problem of multiple overlapping rights that can hamper end being innovation by creating transaction barriers. Most scholars and those reporting Whether the innovation comes from the field agree that large numbers of rights hamper research and innovation, particularly in protection the patent affords the biotech field.21 One scholarinventor, however, has challenged or from the notion.22 John Walsh argues that firms simply work around the problem dissemination of multiple rights for example, by moving offshore beyond the reach information of invention the patent rightsallows, 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 acquiesceis not meant to be an end in itself.}This seems to be changing, thicket_def={refs shapiro, lemley}, thicket_def_extract={Scholars have used the term “patent thicket” to describe the problem patent acquiring a strategic value increasingly independent 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, If this development has challenged the notion.22 John Walsh argues that firms simply work around the problem of multiple rights for examplegone largely unnoticed, by moving offshore beyond the reach of it may be because the patent rights, inventing around system tends to be viewed from the rights, entrenched perspectives of lawyers and using public research tools.23 In particulareconomists, Walsh argues that academic researchers routinely ignore rights structures and that patent holders passively acquiesce.}, tags={open source biotechnology, academic research tools}, filename={Feldman (2004) - The Open Source Biotechnology Movement Is It Patent Misuse.pdf} } @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}, abstract={Patent trolls appropriate profits from innovation solely by enforcing patents against infringers. They are often characterized as relying on low-quality patents, an assessment a number of interest groups that, if correct, would imply that eradicating such patents would effectively terminate the troll business. In this paper, we shed light on this issue by empirically analyzing trolls’ patent acquisitions. We draw justify their reliance on a unique dataset of 565 patents acquired by known patent trolls between 1997 and 2007, which we compare to 1,130 patents acquired by practicing firms. Our findings regarding patent characteristics support recent theoretical propositions about the troll business model. Trolls focus on patents that have a broad scope and that lie system in patent thickets. Surprisingly, and contrary to common belief, we find that troll patents are terms of significantly higher quality than those in the control groupinnovation it is supposed to encourage. This result implies that elevating minimum patent quality will not put an end to the patent troll business, These groups have never included small firms and suggests that it is sustainable developing countries in the long run. Furthermore, we discuss the fact that trolls are peculiar players on markets for technology insofar as whose name they are solely interested in frequently defend the exclusion right, not in the underlying knowledgepatent system. We posit that transactions involving patent trolls They may only be the tip of the iceberg of “patent-only” transactions, have some difficulty justifying a conjecture with strong implications system whose strategic value is so divorced from its value for the efficiency of markets for technologies. Managerial and policy implications are discussedinnovation.}, discipline={EconMgmt}, research_type={Empirical, ModelDiscussion},
@article{gilbert2010tiesmaskus2006reforming, title={Ties That BindReforming US Patent Policy: Policies to Promote (Good) Patent PoolsGetting the Incentives Right}, author={GilbertMaskus, RK.JE.}, journal={Antitrust Law JournalInnovations: Technology, Governance, Globalization}, volume={1}, number={4}, pages={127--153}, year={20102006}, publisher={MIT Press},
@article{holman2005biotechnologymertes2010managing, title={Biotechnology's Prescription for Managing the Patent Thicket and Maximizing Patent ReformLifetime in Vaccine Technology}, author={HolmanMertes, CM.M.M. and St{\"o}tter, G.}, journal={J. Marshall Rev. Intell. Prop. L.Human Vaccines}, volume={56}, number={10}, pages={i860--863}, year={20052010}, publisher={Landes Bioscience}, abstract={On June 8, 2005, Congressman Lamar Smith introduced H.R. 2795, the “Patent Reform Act Patents are exclusive rights for a limited period of 2005,” aimed at improving the quality time that are granetd to provide an incentive for innovation 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 exchange for the time being, but will likely revisit the issue again shortlypublic disclosure of an invention. The biotechnology industry, one of the fastest growing sectors Patenting in the United States economymedical field, strongly opposes many of the proposed reforms. This paper considers especially in the Congressional testimonies field of the Biotechnology Industry Organization (“BIO”) and other representatives human vaccine technologies, is full of biotechnology’s interestspitfalls, and finds because the products that finally access the industry’s adamant opposition to many of the proposals is driven largely market are often covered by a belief that biotechnology patents function primarily as tools for securing investment funding, and the fear that investment multitude of exclusive IP rights. This commentary gives an overview on obstacles in biotechnology will be adversely impacted if investors perceive that patent reform has weakened the rights of patent owners vaccine patenting and inventors. The paper also considers how the biotechnology sector might be impacted if the proposed reforms are enacted into lawto overcome them, and describes some recent biotechnology cases wherein the outcome might have been different if the reforms had already been in placeintends to provide a patenting guideline for researchers.}, discipline={Law, Policy ReportGeneral Science}, research_type={Discussion, Written Theory}, industry={BiotechnologyBiotech}, thicket_stance={AntiWeak Pro}, thicket_stance_extract={If in fact a Managing the patent thicket is significantly impeding biotechnology research and development, one might expect that organizations representing in the interests fields of biotechnology, such vaccine technology is challenging as BIO, WARF, and Genentech, would one product may be advocating for reforms covered by a plurality of exclusive IP rights that would address the problemhave to be considered when developing a product and building up a patent portfolio. IndeedConsequently, licensing is a key point in the biotechnology vaccine industry has never been shy about advocating for legislative action .If a basic patent is held by a powerful patent holder refusing to address its concerns.112 But insteadgrant a license under reasonable commercial terms or abuses a market-dominating position, these groups tend to it should be among examined, whether the most adamant defenders of the status quo and strong patent rights. One might infer from this that requirements to request a patent thicket is not in fact substantially impeding biotechnologycompulsory license are fulfilled.}, thicket_def={refs Heller Eisenberg#A, Complementary Inputs, Diversely-Held}, thicket_def_extract={Various commentators have proposed that Managing the patent thicket in the fields of vaccine technology is challenging as one product may be covered by a proliferation plurality of patents poses exclusive IP rights that have to be considered when developing a serious threat to biotechnology research by creating product and building up a patent thicketportfolio.. Consequently, sometimes referred to as licensing is a “patent anticommonskey point in the vaccine industry.”106 The theory If a basic patent is especially associated with articles published held by Heller and Eisenberg in 1998a powerful patent holder refusing to grant a license under reasonable commercial terms or abuses a market-dominating position, it should be examined, and Eisenberg and Rai in 2002whether the requirements to request a compulsory license are fulfilled.107}, tags={Critique on Reform Proposals#Private Mechanisms, ContinuationLicensing, First innovator#Firm Strategy, Injunction, Value from Position/Portfolio}, filename={Holman Mertes Stotter (20052010) - Biotechnologys Prescription For Managing The Patent Thicket And Maximizing Patent ReformLifetime In Vaccine Technology.pdf}
@articleinproceedings{jensen2004achievingrubinfeld2004strategic, title={Achieving the optimal power The Strategic Use of patent rightsPatents: Implications for Antitrust}, author={JensenRubinfeld, PD.HL. and WebsterManess, ER.}, journalbooktitle={Australian Economic Review}Antitrust, volume={37}, number={4}, pages={419--426Patent and Copyright Conference},
publisher={Wiley Online Library}, 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={EconLaw}, research_type={Written TheoryDiscussion},
@article{king2007clearingsabety2004nanotechnology, title={Clearing Nanotechnology innovation and the Patent Thicketpatent thicket: The Supreme Court and Congress Undertake Patent ReformWhich IP policies promote growth}, author={KingSabety, S.MT.}, journal={IntellAlb. PropLJ Sci. \& Tech. LJ}, volume={915}, pages={13--13477}, year={20072004},
@article{lee2006examiningsomaya2003strategic, title={Examining the Viability Strategic Determinants of Decisions Not to Settle Patent Pools for the Growing Nanotechnology Patent ThicketLitigation}, author={LeeSomaya, A.Deepak}, journal={Nanotech. L. \& Bus.Strategic Management Journal}, volume={324}, pagesnumber ={3171}, yearpages ={2006pp. 17-38}, abstract={A Settlement outcomes in 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 pricelitigation are modeled as resulting from strategies pursued by firms with their patented technologies. They Hypotheses are an attractive option derived for fragmented patent landscapes, where they are created in hopes two types of avoiding influences: the high cost associated with acquiring numerous licensing agreements, avoid widespread patent disputesuse of patents as isolating mechanisms to protect valuable strategic stakes, and help create a standard, amongst other reasons. This issue is especially relevant their 'defensive' role in obtaining access to the emerging scientific field of nanotechnology, where there is widespread concern about the fragmentation of the intellectual property landscapeexternal technologies through mutual hold-up. This paper aimed to develop a general list of criteria to aid in determining whether patent pools are Parameter estimates from a viable option sample selection probit model provide support 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 andstrategic stakes hypotheses, when applied to while the dendritic nanotechnology market, concludes that a patent pool will not be necessary evidence for the continued advancement of this applicationmutual hold-up is inconclusive. The primary reason is Interindustry comparisons show that a huge amount nonsettlement of patents are patent suits in control of one company aloneboth research medicines and computers is increased by strategic stakes and, Dendritic Nanotechnologiesin addition, and seem mutual hold-up appears to be the primary source for the most highly sought after dendritic patentsplay an important role in computer patent suits.}, disciplineyear ={Management2003}, research_typepublisher ={Written TheoryWiley}, industrycopyright ={NanotechnologyCopyright © 2003 Wiley}, thicket_stanceabstract={Assumed Pro}, thicket_stance_extract={They Settlement outcomes in patent litigation are often viewed modeled as the “simplest solution” to intellectual property rights (IPR) bottlenecks resulting from strategies pursued by firms with multiple stakeholders that have overlapping sets of IP (a.ktheir patented technologies.a patent thickets) or Hypotheses are uncertain if there is possible infringement derived for two types of influences: the use of patent issues (a.k.a. Patent Hold-Up).}patents as isolating mechanisms to protect valuable strategic stakes, thicket_def={def37}, thicket_def_extract={...and their 'defensive' role in obtaining access to intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets of IP (a.kexternal technologies through mutual hold-up.Parameter estimates from a patent thickets)}sample selection probit model provide support for the strategic stakes hypotheses, tags={patent pool, nanotechnology}, filename={Lee (2006) while the evidence for mutual hold- Examining The Viability Of Patent Pools For The Growing Nanotechnology Patent Thicketup is inconclusive.pdf} } @article{lei2009patents, title={Patents versus Patenting: Implications Interindustry comparisons show that nonsettlement of Intellectual Property Protection for Biological Research}, author={Lei, Z. patent suits in both research medicines and Juneja, R. computers is increased by strategic stakes and Wright, B.D.}in addition, year={2009}, abstract={A new survey shows scientists consider the proliferation of intellectual property protection mutual hold-up appears to have a strongly negative effect on researchplay an important role in computer patent suits.}, discipline={BiologyMgmt}, research_type={SurveyTheory, RegressionEmpirical}, industry={BiologyICT, Biotech},
PTLR Up Group Processed BibTeX (view source)
Revision as of 01:30, 10 April 2013
, 01:30, 10 April 2013→The Processed Up Group BibTeX Records
This page is part of the [[Patent Thicket Litature Literature Review]]
==Notes==
This page contains the processed Up Group BibTeX entries. With the exception of the first entry (Andrews) they all need reviewing and correcting.
==The Processed Up Group BibTeX Records==
discipline={Econ},
research_type={Empirical},
industry={BiotechnologyBiotech}, thicket_stance={Weakly ProWeak Anti}, 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={Def1#F, References Shapiro, Single Firm, Strategic Patenting (Good), Barrier To Entry},
thicket_def_extract={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.},
tags={Cooperative R&D#Firm Strategy, Decision-makingCollaboration},
filename={Aggarwal Hsu (2009) - Modes Of Cooperative R And D Commercialization By Start Ups.pdf}
}
@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},
abstract={Internet business method patents have been roundly criticized by most observers as being singularly inferior to most other patents. Many have even argued that business methods should not be patentable subject matter. As a result, Congress and the Patent and Trademark Office (“PTO”) singled them out for special treatment. All of these criticisms were, however, voiced without empirical support. We gathered data on most Internet business method patents issued through the end of 1999 and compared them with a large contemporaneous data set of patents in general. We also compared them with patents in fourteen individual technology areas within the general patent data set. Our comparison focused on several metrics that we believe serve as good proxies for patent quality and value. We found that Internet business method patents appear to have been no worse than the average patent, and possibly even better than most. They also appear to have been no worse, and possibly even better, than patents in most individual technology areas. These findings lead us to question the conventional wisdom that Internet business method patents were uniquely deficient. We briefly explore some possible explanations for the chasm between the accepted view and what we believe to have been the reality, including the possibility that negative opinions about these patents may have been the result of an information cascade. More importantly, we believe that efforts to single out these patents for special treatment not only lacked sound justification in the particular case but also reveal more fundamental problems associated with ex ante definitions to carve out any particular technology area for different treatment.},
discipline={Law},
research_type={Empirical},
industry={Business Methods},
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.},
thicket_def={References Shapiro, Quotes Shapiro, Complementary Inputs, Overlapping Patents, Hold-up, Strategic Patenting (Good), Strategic Patenting (Bad)},
thicket_def_extract={#A-S, #B, #C1, Portfolio value can manifest itself in licensing negotiations, especially cross-licensing, or merely in the greater in terrorem effects it creates for competitors... Carl Shapiro has called "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology."},
tags={#IPR Reform, Patent Quality, Sequential Innovation},
filename={Allison Tiller (2003) - The Business Method Patent Myth.pdf}
}
volume={3},
number={10},
pages={803--807808},
year={2002},
abstract={Concerns about human gene patents go beyond moral disquiet about creating a commodity from a part of the human body and also beyond legal questions about whether genes are unpatentable products of nature. New concerns are being raised about harm to public health and to research. In response to these concerns, various policy options, such as litigation, legislation, patent pools and compulsory licensing, are being explored to ensure that gene patents do not impede the practice of medicine and scientific progress.},
discipline={Policy Report},
research_type={Discussion},
industry={BiotechnologyBiotech}, thicket_stance={Assumed Weak Pro}, thicket_stance_extract={Professional organizationsEconomist 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, such as the American College combined profits of Medical Genetics20 and the College producers are lower in the presence of American Pathologistscomplementary monopolies. So, oppose if there are several patent holders whose permission is needed to create a gene patents as threatening medical advancement therapy (and patient care21. The World Medical Association considers human genes to be part any one of them could block the production of “mankind’s common heritage” and urges medical organizations around the world to lobby against gene patenting22. This mounting concern about gene patents has lead to policy initiatives through litigationtherapy), inefficiencies in the market are created, legislation potentially harming both the patent holder and administrative actionthe patent users.}, thicket_def={def23#A, References Shapiro, Diversely-Held, Complementary Inputs, Always Hinders Innovation},
thicket_def_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. 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.},
tags={#IPR PolicyReform, #Private Mechanisms, Pools, Compulsory Licensing, #Effects on Academic Research},
filename={Andrews (2002) - Genes And Patent Policy Rethinking Intellectual Property Rights.pdf}
}
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={n the other hand, a situation such as a patent thicket is likely to impose additional costs and inefficiency on down- stream product development and cumulative innovation... Some similar issues are discussed by Shapiro (2001), who considers the strategies that firms may use to reduce the effects of a patent thicket on their ability to innovate. Shapiro considers the strategies of cross licensing, patent pools, and cooperative standard setting. Our paper is complementary to Shapiro’s in that our analysis is at the level of the market for technology, rather than an individual firm.}, thicket_def={Def1#A, References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={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.... The more the existing IP rights that cover a given downstream activity, the higher will be the transaction costs associated with licensing. In addition, if the upstream IP rights are complementary, potential coordination failures among IP owners can lead to excessively high licensing fees.}, tags={#Private Mechanisms, Pools, Collectives, Clearinghouses},
filename={Aoki Schiff (2008) - Promoting Access To Intellectual Property.pdf}
}
@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},
abstract={},
discipline={Policy Report},
research_type={Discussion},
industry={General, Academia},
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’.},
thicket_def={#A, #A-T, #B, References Shapiro, Quotes Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Always Hinders Innovation, Strategic Patenting (Bad)},
thicket_def_extract={However, there is no clear distinction between the use of patents to prevent copying and the use of patents to block competitors. The function of blocking is to create a wide space around an innovation where other firms cannot develop a competitive alternative.... 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).Heller and Eisenberg (1998) raise the concern that licensing in some areas, such as biotechnology, could become so complex or expensive that it acts as a drag on the rate and direction of research, thereby slowing down the development of socially beneficial products and processes... Patent thickets that develop through both defensive and offensive patent strategies could increase the transaction costs for arranging licenses. The cost of complex licensing arrangements could raise business costs without any benefits to the firms involved, with costs passed on to consumers.},
tags={#IPR Reform, Defensive/Offensive Patenting, Value from Position/Portfolio, #IPR Reform, License to Innovate/Research Exemptions. #Effects on Academic Research}
filename={Arundel Patel (2003) - Strategic Patenting.pdf}
}
@article{attaran2004patents,
title={Patents do not Do Not Strangle Innovation, but Their Quality Must be Be Improved},
author={Attaran, A.},
journal={Bulletin of the World Health Organization},
abstract={},
discipline={Policy Report},
research_type={discussionDiscussion},
industry={Pharma},
thicket_stance={Weakly Weak Anti},
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={def11#A-T, #D, Dubious Patents, Transaction Costs}, thicket_def_extract={"As Professor Correa writesObviously, the resulting thicket of more patents could 'deprive society of , the more inventors must spend on patent management, licensing and litigation. At some point the benefitsmounting costs must dissuade inventors with shallow pockets... so that [R\&D] accretes in major pharmaceutical companies, ahead of] small biotechnology firms... widespread use and dissemination of basic scinetific ideas. Possibilities and facts are not the same thing, however, and there Correa is surprisingly little empirical data to show correct that the quality of patent thicket examination is subtracting from the rate of innovation scandalous. Even in Europe or society's benefit from it. Maybe that is happening without anyone noticingNorth America, but the available evidence suggests otherwise."many dubious patents are issued...the The resulting lack of legal certainty harms everyone..: competitors who must spend heavily to overturn wronly granted patents; consumers who pay a premium while those patents remain in force; and even companies and their shareholders, as happened when an invalid Prozac patent was finally overtruned, wiping US $35 billion off Feli Lilly's market capitalization.}, tags={Against Thickets!#Industry Commentary, Sequential Innovation},
filename={Attaran (2004) - Patents Do Not Strangle Innovation But Their Quality Must Be Improved.pdf}
}
@article{barnett2009propertyayres2007tradable, title = {Property as Process: How Innovation Markets Select Innovation RegimesTradable Patent Rights}, author = {BarnettAyres, Ian and Parchomovsky, Jonathan M.Gideon}, journal = {The Yale Stanford Law JournalReview}, volume = {11960}, number = {3}, pages={863--894}, year = {20092007}, pages abstract= {ppPatent 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. 384The second and more innovative mechanism is quantity-456basedregulation 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.}, publisher discipline= {The Yale Law Journal Company}, Inc. research_type={Theory}, copyright industry= {Copyright © 2009 The Yale Law Journal CompanyGeneral}, Inc. thicket_stance={Pro}, abstract thicket_stance_extract= {It is commonly asserted that Patent thickets are especially harmful in cumulative innovation markets suffer from excessive intellectual property protections, which in turn stifle output. But empirical inquiries can neither confirm nor deny this assertionsettings. Under the agnostic assumption that we cannot assess directly whether intellectual property coverage is excessiveIn such settings, an alternative query is proposed: can the market assess if any "propertization outcome" is excessive and then undertake actions need to correct it? This process-based approach takes secure licenses from multiple patentees, each possessing a veto power over the view that innovator populations make rent-seeking investments that continuously select among innovation regimes that trade off securing production of new innovation gains (which tends to demand more property1) against reducing transaction dramatically increases bargaining costs between patentees and subsequent innovators; (2) creates a potential for hold-ups; and associated innovation losses (which tends to demand less3)lowers the profits of the original patentees. If we can identify Patent thickets also harm regular users of patented products and technology by making it more expensive for users to gain access to the conditions under which privately interested investments in lobbyingrelevant product or technology.}, thicket_def={#Aa-T, Complementary Inputs, enforcementDiversely-Held, and transactional arrangements are likely to yield socially interested propertization outcomesTransaction Costs}, then thicket_def_extract={A particularly disconcerting result of the increase in the underlying datum at issue—whether there number of patents is "too much" intellectual property—can be determined indirectly at some reasonable degree the emergence of approximationpatent thickets: multiple patents that cover a single product or technology. This approach identifies a "property trap" effect where}, tags={Private Mechanisms, Licensing, Tradeable Licenses, IPR Reform, Renewal Fees}, under high coordination costs filename={Ayres Parchomovsky (2007) - Tradable Patent Rights.pdf} } @article{baluch2005re, title={In re Kumar: The First Nanotech Patent Case in the regime selection mechanism is prone to fail: litigation risk Federal Circuit}, author={Baluch, A.S. and Radomsky, L. and associated transaction cost burdens drive innovators to overconsume state-provided property rightsMaebius, S.B.}, journal={Nanotech. L. \& Bus. Conversely}, volume={2}, pages={344}, year={2005}, abstract={On August 15, under low coordination costs2005, the regime selection mechanism Court of Appeals for the Federal Circuit decided what is prone to succeed: adversely affected entities that rely substantially arguably its first nanotech patent case, In re Kumar. Although the court adjudicated the case on outside sources for innovation inputs have incentives procedural grounds, practitioners in the field of nanotechnology will appreciate several substantive themes in this decision. First, the court appears to undertake actions that weaken property-rights coveragetreat a nanotechnology patent appeal no differently than patent appeals in cases involving other technologies. In this regard, including constrained enforcementthe court did not establish any special rules Jar nanotechnologypatents. Second, forming cooperative arrangements, or even forfeiting intellectual property to the public domainL S. CounterintuitivelyPatentand Trademark Qffice ("PTO') is apparently taking the quality of nanotechnology patents seriously, these relationships imply that large firms that rely substantially with the Solicitor himself as lead counsel on outside sources the brief for innovation inputs tend to have the strongest incentives Commissioner of Patents and capacities Trademarks. Third, the court's dicta provides nanotech inventors with guidance for overcoming§ 103 obviousness rejections based on overlapping sizes of nanoparticles. Such an argument, as nanotech commentators had predicted, may be used to take actions rebut a prima facie case Qf obviousness where, as in this case, the claimed nanotech product is made by a different process than that correct overpropertization outcomes. Preliminary evidence is drawn from of the semiconductorprior art, financial services, and information technology industries.},
discipline={Law},
research_type={theoryDiscussion}, industry={general, semiconductorNanotech}, thicket_stance={Weakly Anti}, thicket_stance_extract={Popular 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 scholarly commentary widely assumes that certain innovation markets no dedicated examining group -especially multicomponent markets such as biotechnologygrants very broad and overlapping claims. 16 Moreover, softwarethe 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 information technology- suffer 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 thickets of overlapping property rights that restrain (i.e., claims in different patents which cover the same product and encumber research which are new and development activitiesnot obvious over the prior art), thereby slowing18 the commentators expressed concern that the allowed claims in some patents may be obvious over the prior art. In Kumar, rather than promotinghowever, innovative output. But this often-repeated statement loses considerable force given the PTO found the prior art and rejected those claims that empirical inquiries it considered to identify patent thickets or related "anticommons" effects be obvious in these markets have so far failed to confirm or reject any inhibitory effect on innovation activitylight of those references.}, thicket_def={def12Broad Patents, def0Overlapping Patents, Cummulative Invention}, thicket_def_extract={#B, 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 widely expressed view that innovation markets suffer from an intellectual property same product are often referred to as a "patent thicket (or "anticommons.") where a misguided proliferation of property rights stifles innovative output beneath access restrictions, dispute-resolution actions, and other administrative burden}, tags={IP Regime Selection#Industry Commentary, Against ThicketSequential Innovation}, filename={Barnett Baluch Radomsky Maebius (20092005) - Property As Process How Innovation Markets Select Innovation RegimesIn Re Kumar The First Nanotech Patent Case In The Federal Circuit.pdf}
}
@article{baron2010patentbaron2010strategic, title={Strategic Inputs into Patent Quality and Value in Discrete and Cumulative InnovationPools},
author={Baron, J. and Delcamp, H.},
journal={CERNA Working Paper}, number={2010-07Cerna working paper},
year={2010},
abstract={This article compares explores what factors determine the relationship between decision of a patent quality and patent value in discrete and cumulative innovationpool to accept new inputs. Using factor We propose a dynamic analysis and a set of various commonly used patent quality indicators including claims, citations and family size, we build a quality factor jointly driving all indicators for 9255 patents1337 U.S. We then test the significance of this quality factor for predicting patent renewal after 4, 8 and 12 years in an ordered logistic regressioninputs into 7 important pools. Whereas we establish This analysis highlights a robust trade-off between firm and significant link between patent quality and value in samples characteristics as the determinants of inclusion of discrete and complex technology patents, there is no significant link for patents into pools. For instance we prove that firms already member of the pool or holding large patent portfolios are essential able to technological standards. Consistently, neither the include lower quality factor nor any single indicator allows predicting litigation on an essential patentpatents. We conclude that while there is a robust link between patent quality These findings can be explained both by bargaining power and value in discrete innovation, this link is much weaker in cumulative innovationinformation asymmetry. NeverthelessIn particular, this affects only narrowas measured by a new indicator, yet highly relevant, technological fields. There is no evidence insiders and firms practicing the technology file patents that cumulativeness affects are better aligned with the relationship between quality and value in whole technological classes classified as “complex” by the literaturecriteria of essentiality.},
discipline={Econ},
research_type={Empirical},
industry={ICT},
thicket_stance={Pro},
thicket_stance_extract={The core prediction One aspect of the this patent thicket theory proliferation is thus that the link between « patent quality and patent value erodes. If the link between the value of a patent and the significance of the underlying innovation is weakened, so is the capacity of the patent system to reward innovators for socially desirable innovation activity ..thicket » problem 5. The primary determinant of patent value is the capacity thicket describes a situation in which holders of blocking other patents... Furthermore, among these essential different patents that are all necessary for complying with blocking power over a standard, patent quality is no longer a determinant mutually block each other in the implementation of patent valuethe standard.}, thicket_def={Def2#A-T, References Shapiro, Quotes Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs, Unspecified Blocking Mechanism}, thicket_def_extract={Patent thickets are webs The creator of this term defines the patent thicket as "a dense web of overlapping and intellectual property rights that a company must hack its way through in order to actually commercialize new technology." (Shapiro, 2001)... The patent thicket describes a situation in which holders of different patents that are all necessary for complying with a standard mutually blocking block each other in the implementation of the standard. Another advantage of pools highlighted by the economic literature is to reduce the transaction costs by cutting down the number of licenses needed by firms without patents held by different ownerswho wish to produce products that comply with the standard. Mutually blocking The last advantage of patent rights result from cumulative innovation, where no technological component can be marketed individually without pools is to reduce the technological complements potentially protected by patent rights of multiple marginalization problem6. This problem arises if different companies. Patent thickets firms have a clear impact on patent strategiesmarket power over complementary inputs, such as they provide incentives to file blocking different patentsnecessary for complying with the same standard, and fix prices independently of each other.}, tags={Standards#Private Mechanisms, Essential PatentsPools, Firm Strategy, Value from Position/Portfolio}, filename={Baron Delcamp (2010) - Strategic Inputs Into Patent Quality And Value In Discrete And Cumulative InnovationPools.pdf}
}
@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}, 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}, research_type={Theory, Empirical}, industry={ICT}, thicket_stance={Pro}, thicket_stance_extract={Policy makers and industry participants have come to take a positive stance on patent pools, as pools play an important role in leveling the playing field for competition on the downstream production market, reducing transaction costs and encouraging the spread of innovative technology throughout the industry. In view of these benefits, patent pools are seen as indispensable instruments in cutting through the patent thickets in ICT. Indeed, by clearing blocking positions and facilitating access to the technology, patent pools help attenuating the negative downstream effects of patent thickets. On the other hand, as our analysis has pointed out, there is a risk that these positive downstream effects are offset by the fact that patent pools create incentives to exacerbate some of the worrying upstream effects of patent thickets. Indeed, one of the harmful effects of patent thickets is to induce socially wasteful excess investment in patent races and opportunistic patent files, deviating resources away from innovation to rent seeking strategies... }, thicket_def={#A-T,#C1, References Shapiro, Strategic Patenting (Bad), Transaction Costs, Complementary Inputs, Diversely-Held}, thicket_def_extract={Patent pools are seen as a potential solution to inefficiencies resulting from dense "thickets" of overlapping patents (Shapiro, 2001). From an optimistic point of view, the positive effect of patent pools on the number of patent declarations would indicate that patent pools are efficient in mitigating the adverse effects of patent thickets on innovation and induce supplementary innovation efforts... Indeed, by clearing blocking positions and facilitating access to the technology, patent pools help attenuating the negative downstream effects of patent thickets....}, tags={#Private Mechanisms, Pools, Standards, Firm Strategy, Value from Position/Portfolio}, filename={Baron Pohlmann (2011) - Patent Pools And Patent Inflation.pdf} } @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}, 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.}, discipline={Mgmt}, research_type={Discussion}, industry={Nanotech}, 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.}, thicket_def={Broad Patents, Overlapping Patents, Diversely-Held, Single Firm, Cummulative Invention}, thicket_def_extract={#B1, 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 fragmentation of the patent landscape. Such a scenario has been reported by Harris in the case of nanotubes where a large number of building blocks, broad patents are held by several different entities.}, tags={#Private Mechanisms, Compulsory Licensing, Standards, #IPR Reform, Research Exemptions}, filename={Barpujari (2010) - The Patent Regime And Nanotechnology Issues And Challenges.pdf} } @article{barton2002antitrust, title = {Antitrust Treatment Of Oligopolies With Mutually Blocking Patent Portfolios}, author = {Barton, John H.},
journal = {Antitrust Law Journal},
volume = {69},
abstract={},
discipline={Law},
research_type={theoryTheory}, industry={generalGeneral, ictICT}, thicket_stance={Weakly Weak Pro},
thicket_stance_extract={Oligopolists holding cross-infringing patents may actually reduce innovation by restricting entry into the oligopoly},
thicket_def={def1References Shapiro, Complementary Inputs, Diversely-Held, Barrier To Entry, Strategic Patenting (Bad), Strategic Patenting (Good)}, thicket_def_extract={#A, Some of the most important new issues are raised by the "defensive" use of intellectual property rights among oligopolists.... In semiconductors, and probably many other industries, there is a small number of oligopolists, probably small enough to provide the basis for a significant oligopoly rent due to parallel pricing above the competitive level. (Unless there is some form of quasi-rent or return greater than marginal cost, there will be no incentive for invest- ment in research.4) Each of the oligopolists holds a substantial patent portfolio, significant components of which are infringed by each of its competitors. Although litigation is possible, it is rare, because of the fear that any suit will be met by a counter suit. This fear may lead to a tacit cross-license of the patent portfolios; in some cases the cross-license may be explicit. Although this situation raises other antitrust issues to be discussed in this article, the most serious one arises from the possibility that the oligopolists will exercise their intellectual property rights to prevent entry into the oligopoly}, tags={Oligopolies#IPR Reform, Balance with Antitrust, Mutual BlockingFirm Strategy, Oligopoly, Value from Position/Portfolio, #Private Mechanisms, Cross-Licensing},
filename={Barton (2002) - Antitrust Treatment Of Oligopolies With Mutually Blocking Patent Portfolios.pdf}
}
publisher = {Springer},
copyright = {Copyright © 2004 Springer},
discipline={Econ, Law},
research_type={Discussion},
industry={generalGeneral, ICT},
thicket_stance={Assumed Pro},
thicket_stance_extract={A complex piece of equipment, such as a computer, charactersitically is made up of components each of which is covered by a surprisingly large number of patents and the patents pertinent for such an item are often owned by a considerable number of different firms, many of them direct competitors in the final-product market...This puts many of these firms in a legal position that can enable each to bring the manu- facturing process of the others to a halt. The most effective way to prevent the catastrophic conse- quences this threatens for each of them is the for- mation of a patent pool in which each makes use of its patents available to the other members of the pool, and even to outsiders (as a step to avoid intervention by the anti-monopoly authorities}, thicket_def={def13#A, Complementary Inputs, Diversely-Held},
thicket_def_extract={Similar perils for the public interest arise in the last of the reasons for voluntary technology sharing - the problem of "patent thickets" and the widespread patent pools that have been formed to deal with the thicket problem. A complex piece of equipment, such as a computer, characteristically is made up of components each of which is covered by a surprisingly large number of patents, and the patents pertinent for such an item are often owned by a considerable number of different firms, many of them direct competitors in the final-product market. For example, Peter N. Detkin, vice president and assistant general counsel at Intel Corporation, estimates that there were more than 90,000 patents generally related to microprocessors held by more than 10,000 parties in 2002 (Federal Trade Commission, 2002, p. 667). This puts many of these firms in a legal position that can enable each to bring the manufacturing process of the others to a halt. The most effective way to prevent the catastrophic consequences this threatens for each of them is the formation of a patent pool in which each makes use of its patents available to the other members of the pool, and even to outsiders (as a step to avoid intervention by the anti-monopoly authorities...},
tags={Pool#Firm Strategy, Startups and IncumbentsOligopoly, Private Mecnahsims, Pools, Regime Selection},
filename={Baumol (2004) - Entrepreneurial Enterprises Large Established Firms And Other Components.pdf}
}
@article{bawa2005nanotechnology,
title={The nanotechnology patent ‘gold rush’Nanotechnology Patent ‘Gold Rush’},
author={Bawa, R. and Bawa, SR and Maebius, S.B.},
journal={Journal of Intellectual Property Rights},
thicket_stance={Pro},
thicket_stance_extract={Such patent proliferation of broad patents could ultimately result in 'patent thickets' that will require patent litigation to sort out, especially if areas of nanotechnology become financially lucrative. Given such a patent ladnscape for nanotechnology, expensive patent litigation is inevitable, with patent owners commanding some leverage with which to avoid a self-destructive patent war. The end result of all this is too familiar to the business and patent communities: (1) higher costs to consumers if and when products are commercialized; and (2) a drag on the innovation process itself.},
thicket_def={def14References Shapiro, Quotes Shapiro, Always Hinders Innovation, Unspecified Blocking Mechanism (Not DHCI), Broad Patents, Dubious Patents, Overlapping Patents, Single Firm, Cummulative Invention}, thicket_def_extract={Predatory inventors #B, Patent thickets are individuals or corporations broadly defined in academic discourse as "a ‘dense web of overlapping intellectual property rights that patent every possible application around a novel early company must hack its way through in order to actually commercialize new technology. If this approach becomes commmon’" Richard Raysman & Peter Brown, Patent Cross-Licensing in the Computer and Software Industry, 233 N.Y. L. J., Jan. 11, 2005, at 3, 6 (quoting Carl Shapiro, Navigating the Patent Thicket: Cross-Licenses, Patent Pools, and Standard Settings, in 1 INNOVATION POLICY AND THE ECONOMY 119, 120 (Adam Jaffe et al.eds., 2001)). it could inevitably create nanotech Such patent thickets, a result of multiple blocking patents, naturally discourage and stifle innovation and "[c]laims in such patent thicketshave been characterized as ‘often broad, overlapping and conflicting . . . ’").}, tags={Licensing#IPR Reform, Creation of New Classification, Balance Beteween Anti-Trust, Firm Strategy, Defensive/Offensive Patenting strategy, Sequential Innovation},
filename={Bawa Bawa Maebius (2005) - The Nanotechnology Patent Gold Rush.pdf}
}
year={2005},
abstract={},
discipline={BiologyGeneral Science}, research_type={discussionDiscussion}, industry={NanomedicineNanotech, Biotech},
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},
thicket_def={def1#B, Complementary inputs with infringementQuotes Shapiro, Includes innovation lossAlways Hinders Innovation, Unspecified Blocking Mechanism (Not DHCI), Broad Patents, Overlapping Patents, Single Firm, Diversely-Held, Cummulative Invention}, thicket_def_extract={Patent thickets are broadly defined in academic discourse as "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology". Such patent thickets, as a result of multiple blocking patents, are considered to discourage and stifle innovation. Claims in such patent thickets have been characterized as boften often broad, overlapping and conflicting — - a scenario ripe for massive patent litigation battles in the future...}, tags={Commercialization#Industry Commentary, #Private Mechanisms, Pools, Cross-licensing},
filename={Bawa (2005) - Will The Nanomedicine Patent Land Grab Thwart Commercialization.pdf}
}
@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},
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.},
discipline={Law},
research_type={Discussion},
industry={Nanotech},
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.},
thicket_def={#B, #C1, References Shapiro, Quotes Shapiro, Always Hinders Innovation, Unspecified Blocking Mechanism (Not DHCI), Broad Patents, Dubious Patents, Overlapping Patents, Cummulative Invention},
thicket_def_extract={Patent thickets are broadly defined in academic discourse as "a 'dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.'"... Such patent thickets, a result of multiple blocking patents, naturally discourage and stifle innovation...},
tags={#IPR Reform, Stricter Patenting Requirements, #Private Mechanisms, Cross-Licensing, Industry Commentary},
filename={Bawa (2007) - Nanotechnology Patent Proliferation And The Crisis At The Us Patent Office.pdf}
}
@article{beard2002patent,
title={Patent thicketsThickets, crossCross-licensing, and antitrustAntitrust},
author={Beard, T.R. and Kaserman, D.L.},
journal={Antitrust Bull.},
discipline={Law},
research_type={Theory},
industry={generalGeneral, Semiconductor},
thicket_stance={Pro},
thicket_stance_extract={The patent thicket problem can be severe in certain technologically dynamic industries. Consider, for example, the semiconductor industry. In that industry, there reportedly are already over 250,000 patents in existence that, in principle, a new innovation potentially could infringe. In addition, there are several thousand additional patent applications typically in the process of review.' 4 As a result of these extant and forthcoming patents, it is virtually impossible for a firm to know, ex ante, whether a given microprocessor innovation will infringe a patent held by another firm. The patent thicket associated with this industry, then, is quite formidable, and it creates considerable uncertainty regarding the future legal status of any intellectual property created by R&D activities.},
thicket_def={def15#A-S, #B-S, Unspecified Blocking Mechanism, Hold-up, Diversely-Held},
thicket_def_extract={Where a highly complex product or process is covered by numerous interrelated patents, any holder of a patent that applies to that product or process potentially may block production and/or impede further technological developments, thereby jeopardizing the returns on other parties' prior investments. In such situations (i.e., where a given product is potentially affected by numerous patents owned by a number of different parties), the resulting uncertainty regarding unforeseen patent claims can dampen firms' incentives to invest in R&D activities. This potential for numerous interrelated patents to deter R&D investment has been called the patent thicket (or minefield) problem.},
tags={#Private Mechanisms, Cross-licensing, #IPR Reform, Balance with Anti-trust, Sequential Innovation},
filename={Beard Kaserman (2002) - Patent Thickets Cross Licensing And Antitrust.pdf}
}
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.},
discipline={BiotechnologyGeneral Science},
research_type={Discussion},
industry={BiotechnologyBiotech},
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.},
thicket_def={Def3#B-T, References Heller/Eisenberg, Transaction Costs, Broad Patents, Overlapping Patents, Unspecified Blocking Mechanism (Not DHCI), Diversely-Held}, thicket_def_extract={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 ‘anti- commons’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.}, tags={#Industry Commentary, #Private Mechanisms, Clearinghouse},
filename={Bergman Graff (2007) - The Global Stem Cell Patent Landscape.pdf}
}
discipline={Econ},
research_type={Theory},
industry={AgricultureGenetics},
thicket_stance={Pro},
thicket_stance_extract={The golden rice case finely illustrates While the effect of such thickets on innovative researchers. Swiss scientists had developed a Vitamin A-enhanced rice that promised huge health benefits to millions of poor children situation is somewhat different in developing countries. Before they could share their development, howeverwhere farmers have traditionally created thousands of different varieties, the scientists had lack of the technological know-how and instruments to work improve increasingly sophisticated seed varieties is also marginalising their way through 70 patents belonging role as seed innovators. The continued corporate and governmental pressure on such countries to over 30 companies in addition to six restrictive material transfer agreements strengthen their seed-marketing, IPR protection and enforcement systems (Damodaran and SrivatsSell, 20012003)will further adversely affect such farmers’ potentially innovative activities.}, thicket_def={Def1#B, References Shapiro, Overlapping Patents, Unspecified Blocking Mechanism, Strategic Patenting (Bad), Barrier To Entry},
thicket_def_extract={These developments certainly do not encourage user-innovation, as users wanting to amend existing products or to create new ones must navigate the IPR thicket. 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).},
tags={Barriers#Private Mechanisms, Firm Strategy, Licensing, Defensive/Offensive Patenting, Value from Position/Portfolio},
filename={Braun Herstatt (2007) - Barriers To User Innovation.pdf}
}
thicket_stance={Pro},
thicket_stance_extract={Particularly in areas like the semiconductor industry, com- panies need some means for "clearing" the patent thicket, such as cross-licensing all the rights needed for their complex product},
thicket_def={Def1#B2, #C1, References Shapiro, Broad Patents, Overlapping Patents, Dubious Patents}, thicket_def_extract={Closely related to the problem of complementarity is the prob- lem problem of horizontal overlaps between patents.122 Patents are fre- quently frequently broader than the products the inventors actually make. Multiple patents often cover the same ground, sometimes as an in- tentional intentional result of the patent system"' and sometimes because pat- ents patents 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"}, tags={Various theories on Patent Policies#IPR Reform, Creation of New Classification, Industry Commentary, Cumulative Innovation},
filename={Burk Lemley (2003) - Policy Levers In Patent Law.pdf}
}
@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}, 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.}, discipline={Econ}, research_type={Discussion}, industry={ICT}, thicket_stance={Pro}, thicket_stance_extract={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... 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.}, thicket_def={References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs, Hold-up, Strategic Patenting (Bad)}, thicket_def_extract={#A-T, 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 nature of transaction costs previously mentioned can be traced back to two fundamental determinants: the problem of complementary input and the problem of hold-up.... There is a second aspect which deserves attention, regarding the already cited hold-up problem. This problem is strictly linked to the level of difficulty with which during the downstream stages from the innovative chain, it is possible to put into action inventing around strategies...}, tags={#Private Mechanisms, Standards, SSOs, FRAND, Licensing, Compulsory Licensing, IP Reform, Balance with Anti-trust}, filename={Calderini Giannaccari (2006) - Standardisation In The Ict Sector.pdf} } @article{callaway2008patent, title={Patent Incentives in the Semiconductor Industry}, author={Callaway, D.}, journal={Hastings Bus. LJ},
volume={4},
pages={135},
year={2008},
abstract={The semiconductor industry comprises organizations of all sizes, from single engineers contracting their work to companies as large and powerful as have ever existed. The rapid advancement of technology in the semiconductor field makes it a crucible for theories about the patent system as a whole. It is arguably desirable that as new technologies come to market, patents should be issued with appropriate scope so that other inventors retain incentive to innovate.' But it is not only the Patent Office which can offer or hinder incentives for inventors. The semiconductor industry is subjected to various incentives, both negative and positive, from Congress, the courts, and from within. Part A of this paper will survey the semiconductor industry and the incentives for patenting integrated circuits. Part B will look at disincentives, and problems that have arisen in the industry. Part C focuses particularly on patent issues relating to "interface circuits"--those circuits that directly connect a chip to the outside world},
discipline={Law},
research_type={theoryTheory},
industry={Semiconductor},
thicket_stance={Weakly Weak Pro}, thicket_stance_extract={The proliferation 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 the 555 by 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 illustrates are actually infringing their patents, because of the cutthroat needle-in-a-haystack nature of the semiconductor industry individual circuits in its infancycomplex chips. But todayFor both large and small companies, more than everthere is the threat that a patent disclosure will simply be co-opted by another manufacturer, large semiconductor companies encourage their rivals who will exploit the patentee's technology in a chip too obscure to enter cross-licensing agreementsever be detected.}, thicket_def={def1#A-S, References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={Thickets only referenced As discussed in footnotesthe preceding section, the process of designing a chip is a complex and creative endeavor, and can incorporate hundreds or thousands of "potentially patentable" technologies for which adverse patents may be held.6" A chip designer cannot know that his work is blocked by an existing patent, any more than a musician can know that a tune popping into his head has already been copyrighted. Worse, there is the possibility that after a chip is designed and produced, an adverse patent will issue from an application that has lingered in the Patent Office, creating a wellspring of liability}, tags={555 Timer#IPR Reform, #Firm Strategy, HistoryWillful Infringement, Industry exampleBalance with Anti-trust},
filename={Callaway (2008) - Patent Incentives In The Semiconductor Industry.pdf}
}
thicket_stance={Assumed Pro},
thicket_stance_extract={A prominent example of a patent thicket is the semiconductor industry, in which hundreds, if not thousands, of patents can read onto a single product. 208 The patents typically cover "aspects of the circuitry design, materials used to achieve a certain outcome, and the broad array of methods used to manufacture the device."20 9 Consequently, companies such as IBM, Intel, and Motorola "find it all too easy to unintentionally infringe on a patent in designing a microprocessor, potentially exposing themselves to billions of dollars of liability and/or an injunction forcing them to cease production of key products."210 This concern is especially relevant for firms that have made "costly and rapidly-depreciating investments in wafer fabrication facilities, which inherently utilize a 'thicket' of innovations developed by many parties."},
thicket_def={def16#A-S, Quotes Shapiro, References Shapiro, Diversely-Held, Unspecified Blocking Mechanism, Hold-up, Transaction Costs}, thicket_def_extract={Carl Shapiro has defined a patent thicket as "an overlapping set of patent rights requiring that those seeking to commercialize new technology obtain licenses from multiple patentees."20 3 Patent thickets have been associated most frequently with the semiconductor industry, but they also have been observed in the biotechnology, computer software, and Internet industries... The existence of a patent thicket increases the power of each patentholder with a patented part in the product, because each can block the use of the product by all others. The power is magnified by the patent system, with its use of injunctions and costly and lengthy infringement litigation. 20 5 The dangers of the patent thicket are exacerbated when patents are issued for products that already are on the market.}, tags={Pool#Private Mechanisms, Pools, #IPR Reform, Balance with Anti-trust, BottlenecksCumulative Innovation},
filename={Carrier (2003) - Resolving The Patent Antitrust Paradox Through Tripartite Innovation.pdf}
}
industry={General},
thicket_stance={Pro},
thicket_stance_extract={In such industries, there frequently arises a "patent thicket," in which overlapping patent rights enable each patent holder with a patented input in the product to block the use of the product by all others. The power to hold other patent holders hostage is fostered and magnified by the injuctions and costly and lengthy infringement litigation that characterize the patent system. The danger inherent in these mechanisms is exacerbated when patents issue for products already on the market, because the owner of a newly issued patent holds a commanding position over manufacturers already in large-scale production, who cannot easily redesign their products and thus are forced to comply with the new patentee's demands}, thicket_def={def1#B, #C, References Shapiro, Overlapping Patents, Unspecified Blocking Mechanism},
thicket_def_extract={Intragenerational bottlenecks occur most frequently in the semiconductor industry and have also appeared in the biotechnology, computer software, and Internet industries.188 In such industries,there frequently arises a "patent thicket,"189 in which overlapping patent rights enable each patent holder with a patented input in the product to block the use of the product by all others},
tags={#IPR Reform, Changes to Nature of IPIPR, #Private Mechanisms, Compulsory Licensing, Reverse Doctorine of EquivalentsCumulative Innovation},
filename={Carrier (2004) - Cabining Intellectual Property Through A Property Paradigm.pdf}
}
@article{chu2009effectscarrier2002antitrust, title = {Effects Why Antitrust Should Defer to the Intellectual Property Rules of Blocking Patents on R&DStandard-Setting Organizations: A Quantitative DGE Analysis}, author = {Chu, Angus C.}, journal = {Journal of Economic Growth}, volume = {14}, number = {1}, pages = {pp. 55-78}, abstract = {What are the effects of blocking patents Commentary on RTeece \&D and consumption? This paper develops a quality-ladder growth model with overlapping intellectual property rights and capital accumulation to quantitatively evaluate the effects of blocking patents. The analysis focuses on two policy variables (a) patent breadth that determines the amount of profits created by an invention and (b) the profit-sharing rule that determines the distribution of profits between current and former inventors along the quality ladder. The model is calibrated to aggregate data of the US economy. Under parameter values that match key features of the US economy and show equilibrium R&D underinvestment, I find that optimizing the profit-sharing rule of blocking patents would lead to a significant increase in R&D, consumption and welfare. Also, the paper derives and quantifies a dynamic distortionary effect of patent policy on capital accumulation.Sherry}, year = {2009}, publisher = {Springer}, copyright = {Copyright © 2009 Springer}, discipline={Econ}, research_type={Theory, Empirical}, industry={General}, thicket_stance={Assumed Pro}, thicket_stance_extract={This reasoning suggests that for the purpose of stimulating R&D, reducing the backloading effect of blocking patents would have been a less harmful policy instrument than increasing patent breadth. Even if the current level of R&D is socially optimal, it would be beneficial for the society to reduce the level of patent breadth and the backloading effect of blocking patents simultaneously to keep R&D constant.}, thicket_defauthor={def1}Carrier, thicket_def_extract={Today, most basic and applied researchers are effectively standing on top of a huge pyramid... Of course, a pyramid can rise to far greater heights than could any one personM... But what happens if, in order to scale the pyramid and place a new block on the top, a researcher must gain the permission of each person who previously placed a block in the pyramid, perhaps paying a royalty or tax to gain such permission? Would this system of intellectual property rights slow down the construction of the pyramid or limit its heights? ... To complete the analogy, blocking patents play the role of the pyramid's building blocks.Carl Shapiro (2001)}, tags={Blocking patents, Profit sharing rules}, filename={Chu (2009) - Effects Of Blocking Patents On R and D A Quantitative DGE Analysis.pdf} } @article{cotter2008patent, title={Patent Holdup, Patent Remedies, and Antitrust Responses}, author={Cotter, T.F.}, journal={JMinn. CorpL. LRev.}, volume={3487}, pages={11512017-2034}, year={2008}, publisher={HeinOnline2002},
abstract={},
discipline={Law},
research_type={TheoryDiscussion},
industry={General},
thicket_stance={Weak Pro}, thicket_stance_extract={In the next two Parts, however, I will argue that, ifpatent holdup is a serious problem in reality, certain reforms to The clearing of patent law may be desirable, although the precise nature thickets and fostering of those reforms will depend in large part on cumulative innovation and new markets through SSOs offers perhaps the comparative error costs of different approaches to calculating reasonable royaltiesmost powerful benefits for competition and innovation.}, thicket_def={def18#B1, Unspecified Blocking Mechanism, Hold-up}, thicket_def_extract={Mark Lemley has shown that SSOs have concentrated “in precisely those industries where the unconstrained enforcement of patents could be most damaging to innovation,” namely, computer software, Internet, telecommunications, and semiconductors.89 In this regardthese industries, I present a definition the presence of multiple patented inputs in products increases the risk of patent holdup . Just as a type ominous, the industries are marked by “cumulative innovation,” with one generation’s patented invention based on those of opportunistic behavior on previous generations.90... In these industries, the part presence of patent owners that threatens to impose (1) static deadweight losses that are not justified by likely multiple patented inputs in products increases in dynamic efficiencythe risk of holdup. Just as ominous, or (2) dynamic efficiency losses due to reduction in the incentive to participate in standard setting organizations or to engage in follow-up industries are marked by “cumulative innovation,” with one generation’s patented invention based on those of previous generations.}, tags={#Private Mechanisms, Standards, SSOs, #IPR Reform, Patent HoldBalance with Anti-uptrust, AntitrustCumulative Innovation}, filename={Cotter Carrier (20082002) - Patent Holdup Patent Remedies And Why Antitrust ResponsesShould Defer To The Intellectual Property Rules Of SSOs.pdf}
}
@article{denicolo2007dochoi2005live, title = {Do Live and Let Live: A Tale of Weak Patents Over-Compensate Innovators?}, author = {DenicolòChoi, VincenzoJ.P.}, journal = {Journal of the European Economic PolicyAssociation}, volume = {223}, number = {522-3}, pages = {pp. 679+681724--729733}, year={2005}, abstract = {Is the current level of patent Patent protection too high or too low? To address this issuehas gradually expanded over time, this paper reformulates the theoretical analysis and many patents of the optimal level of patent protection suspect value are routinely granted owing to take into account the empirical findings lack of rigorous scrutiny in the innovation production function literatureexamination process. This literature finds has resulted in the recent explosion of patents granted and potentially creates a strong relationship between R&D spending and inventions and estimates an elasticity "patent thicket" that hinders future innovation. I investigate the question of whether the supply of inventions litigation process can be relied on to restore competition when an imperfect market outcome is sustained through patents of 0suspect value.5 or more. Thepaper then assesses The analysis undertaken in the paper points out the current level serious lack of patent protection, exploiting estimates of the private and social returns incentives to R&D taken from the empirical literature and other available sourceseliminate patents of suspect value through litigation. Although more research is needed for a more precise assessment, I also discuss potential measures to restore the evidence available suggests that patents do not overcompensate innovators.}, year = {2007}, publisher = {Wiley on behalf soundness 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'Hommepatent system.},
discipline={Econ},
research_type={Theory},
industry={General},
thicket_stance={Weakly AntiWeak Pro}, thicket_stance_extract={It is tempting to conclude that policy reform, if anything, should strengthen patent Patent protection. At this stagehas gradually expanded over time, however, no policy conclusion can be anything but tentativeand many patents of suspect value are routinely granted owing to the lack of rigorous scrutiny in the examination process. The assessment developed This has resulted in this paper, while highly suggestive, is not truly compelling: reasonable interpretations the recent explosion of the same evidence (or lack thereof) might differpatents granted and potentially creates a "patent thicket" that hinders future innovation.}, thicket_def={def19#C1, References Shapiro, Dubious Patents}, thicket_def_extract={In certain industriesThe 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, such as telecommunications and biotechnologyrather than promote, production of new products often requires many complementary innovative components that are owned innovation by different firms. The proliferation and fragmentation of intellectual property rights creates creating a '"patent thicket' that is often viewed as an obstacle to innovation"(Shapiro 2001; Gallini 2002; Bessen 2003). Two main problems may emerge. First, a proliferation of patents held by different owners increases transaction costs With the ex parte relationships between patent applicants and examiners and might even prevent manufacturers from obtaining with no adversary to aid examiners either in identifying the right to develop relevant prior art or in evaluating the new productsapplicants' claims, creating the tragedy task of the anticommons (Heller and Eisenberg, 1998). Second, with complementary weeding out patents there may be a problem of Cournot complements questionable quality or even trivial significance is (Shapiro, 2001in the current U.S. system) that increases left to litigation in the deadweight loss to profit ratiocourts. }, tags={Complementary Innovations#IPR Reform, Stricter Patenting Requirements, Private Mechanisms, Litigation, Probablistic Patents, Invalidation, Review of Patent Validity}, filename={Denicolo Choi (20072005) - Do Live And Let Live A Tale Of Weak Patents Over Compensate Innovators.pdf}
}
@articleincollection{devlin2009indeterminismcohen2008real, title = {Indeterminism and the Property-Patent EquationReal Impediments to Academic Biomedical Research}, author = {DevlinCohen, W.M. and Walsh, AlanJ.P.}, journal booktitle= {Yale Law & Innovation Policy Review}and the Economy, volume = {28Volume 8}, number pages= {1--30}, pages year= {pp. 61-1062008}, language publisher= {EnglishUniversity of Chicago Press}, year abstract= {2009}Numerous scholars have expressed concern over the growing "privatization of scientific commons" represented by the growth in academic patenting. Even before the Bayh-Dole Act and the pervasive patenting of academic science, however, there was an earlier concern over the extent towhich the drive for recognition among scientists and competition for priority and associated rewards also limited contributions to the scientific commons. This suggests the utility of a more open-ended consideration of the different factors-not just patenting-that might affect knowledge flows across scientists. In this paper, we use a simple economic perspective that emphasizes the benefits and costs of excluding others from research results and analyze the empirical evidence on exclusion in biomedical research. We suggest, publisher = {Yale Law & Policy Reviewfirst, Incthat one might distinguish between legal and practical (i.e.}, copyright = {Copyright © 2009 Yale Law & Policy Reviewlower cost) excludability?and that practical excludabil ity, at least in theworld of academic research, may have little to do with patents. At the same time, however, we suggest that excludability may indeed be a real concern for academic and, particularly, biom?dical research, but to understand where and how it occurs, we need to look beyond patents to consider additional ways inwhich flows of knowledge and other inputs into research may be re stricted (including secrecy and control over materials). We do find restrictions on the flow of information and materials across biomedical researchers. While patents play some role, Incthey 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, abstract={but is more readily achieved through secrecy or not sharing research materials.}, discipline={LawEcon}, research_type={TheoryEmpirical}, industry={GeneralAcademia}, thicket_stance={Assumed ProWeak Anti}, thicket_stance_extract={More fundamentally stillWe 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 innumerable overlapping patents existence of a patent 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 innovationacademic settings, but is more readily achieved through secrecy or not sharing research materials.}, thicket_def={def20#A-T, References Heller/Eisenberg, References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={More fundamentally still...innovation is cumulative, the innumerable overlapping assertion of patents in certain high tech fields create an impenetrable "thicket" that frustrates quixotic conceptions on key upstream discoveries may significantly restrict follow-on research.14 The patenting of Coasian bargaining numerous, individually less significant discoveries may also impede academic research. Although their focus is largely on commercial projects, Heller and Eisenberg (1998) and acts only as an anticommons Shapiro (2000) suggest that paradoxically fore closes innovation. One's exclusion the patenting of another from his land is isolated; a single patentee's ability broad range of research tools that researchers need to enjoin production of a semiconductor chip do their work has spawned "patent thickets" that implicates thousands of patents creates powerful negative externalities. Given such distinctions, many view may make the worlds acquisition of patent law licenses and traditional property as sufficiently distinct other rights too burdensome to permit the pursuit of what should otherwise be unworthy scientifically and socially worthwhile research,(engendering a tragedy of direct analogythe "anticommons" [Heller and Eisenberg 1998]).}, tags={Comparison of real and intellectual property rights#Industry Commentary, #Private Mechanisms, Regime Selection, #IPR Reform, Research Exemptions, #Effects on Academic Research}, filename={Devlin Cohen Walsh (20092008) - Indeterminism And The Property Patent EquationReal Impediments To Academic Biomedical Research.pdf}
}
@articlemisc{federal2003promotecompetition2008pharmaceutical, title={To Promote Innovation: The Proper Balance of Competition and Patent Law and PolicyPharmaceutical Sector Inquiry-Preliminary Report}, author={Federal Trade Commission}, journal={WashingtonCompetition, DCDG}, year={20032008},
abstract={},
discipline={Policy Report},
research_type={DiscussionEmpirical}, industry={General, Pharmaceutical, Biotechnology, ICT, SemiconductorPharma},
thicket_stance={Pro},
thicket_stance_extract={This process can deter followOne 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-on innovation and unjustifiably raise costs to businesses wide andthat, as mentioned above, ultimatelycertain 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 consumersamend the current costly and burdensome system consisting of a bundle of national patents.}, thicket_def={def1#B, #C1, #D, Broad Patents, Single Firm, Unspecified Blocking Mechanism (Not DHCI), Dubious Patents, def21Barrier To Entry, Strategic Patenting (Bad)}, thicket_def_extract={This tends to create a “patent thicket” – that isIn particular, a “dense web of overlapping intellectual property rights originator companies confirm that a company must hack its way through in order they aim to actually commercialize new technology... Questionable patents contribute develop strategies to extend the breadth and duration of their patent thicketprotection. In the context of a patent thicket, questionable One commonly applied strategy is filing numerous patents can introduce new kinds of licensing difficulties, such as royalties stacked one on top of another, and can increase uncertainty about for the same medicine (forming so called "patent landscape, thus complicating business planning. Questionable patents in clusters" or "patent thickets can frustrate competition by current manufacturers as well as potential entrants"). Because a manufacturer needs a license to all Documents gathered in the course of the patents inquiry confirm that cover its product, firms can use questionable patents an important objective of this strategy is to extract high royalties delay or to threaten litigation..block the market entry of generic medicines.}, tags={FTC Report#Industry Commentary, Firm Strategy, Defensive/Offensive Patents, Blocking Patents}, filename={FTC Competition (20032008) - To Promote InnovationPharmaceutical Sector Inquiry Preliminary Report.pdf}
}
@article{federal2011evolvingcowin2007policy, title={The Evolving IP Marketplace: Aligning Policy Options for the Improvement of the European Patent Notice and Remedies with Competition.”System}, author={Federal Trade CommissionCowin, R. and Van der Eijck, W. and Lissoni, F. and Lotz, P. and Van Overwalle, G. and Schovsbo, J.}, journal={March, available at http://www.ftc.gov/os/2011/03/110307patentreport.pdfScientific Technology Options Assessment (STOA) of the European Parliament}, year={20112007},
abstract={},
discipline={Policy Report},
research_type={Discussion},
industry={ITGeneral}, thicket_stance={Weak Pro}, thicket_stance_extract={Furthermore, if To meet the challenges that the governance of the European patent system is facing because of the alleged infringer would face large switching costs due to sunk investments based on emergence of patent thickets the patented technologyincreasing number of patent applications and patenting for defensive and strategic reasons, it may be forced to pay higher royalties than it would have negotiated prior to launchthree options were recommended.30 These risks increase expected costswere: (i) enhancing the patent awareness within the European Parliament; (ii) establishing a European Parliament Standing Committee on Patents, reducing firms’ incentives to pursue innovative projectswhich should be linked with an External Advisory Body composed by experts,31 while practitioners and stakeholders; and (iii) enhancing patent awareness within the associated expenses cause firms to reduce spending on R&DCommission.}, thicket_def={def1#B1, #D-S, Overlapping Patents, Single Firm, Hold-up, Barrier To Entry, Cummulative Invention}, thicket_def_extract={IndeedHere, the recent boom in patenting observed by many researchers is largely explained not by a firms’ drive to innovate more than before, IT products are often surrounded but by a need to accumulate large enough “patent thickets” – densely overlapping . These patent rights held thickets work as a sort of insurance against possible legal actions from other companies. They are in effect therefore, a kind of defensive manoeuvre.For instance, take the situation where company A fears that its products will infringe one or more patents owned by company B. So, by multiple developing and holding a large enough patent ownersthicket company A makes sure that company B will inevitably infringe one of these thicketed patents. As a result, negotiations will follow in order to avoid court action between them, and likely end up with mutual cross-licensing between companies A and B... Defensive and strategic patenting has for instance, in some sectors resulted in patent thickets, the consequences of which are generally undesirable in terms of creating too many, possibly overlapping patents, which can crowd a technological field and make it difficult and costly to navigate through.... making it difficult for new and small inventors to enter the market.}, tags={FTC Report#IPR Reform, Stricter Patenting Requirements, Low Patent Quality, Balance with Anti-trust, #Private Mechanisms, Pools, Clearinghouses, Firm Strategy, Defensive/Offensive Patenting}, filename={FTC Cowin (20112007) - Policy Options For The Improvement Of The Evolving IP MarketplaceEuropean Patent System.pdf}
}
@article{gallini2011privated2009pools, title={Private Agreements for Coordinating Patent Rights: The Case of Patent Pools, Thickets and Open Source Nanotechnology}, author={GalliniD'Silva, NJ.}, journal={Economia e Politica Industriale}, year={2011}, publisher={FrancoAngeli Editore}, abstract={Inventors and users of technology often enter into cooperative agreements for sharing their intellectual property in order to implement a standard or to avoid costly litigation. Over the past two decades, U.S. antitrust authorities have viewed pooling arrangements that integrate complementary, valid and essential patents as having procompetitive benefits in reducing prices, transactions costs, and the incidence of legal suits. Since patent pools are cooperative agreements, they also have the potential of suppressing competition if, for example, they harbor weak or invalid patents, dampen incentives to conduct research on innovations that compete with the pooled patents, foreclose competition from downstream product or upstream input markets, or raise prices on goods that compete with the pooled patents. 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 European Intellectual Property Rights: Promoting Innovation and Competition (2007) to recent patent pool cases.Review}, disciplinevolume={Econ31}, research_typenumber={Theory6}, industrypages={General}, thicket_stance={Assumed Pro}, thicket_stance_extract={These developments over the past few decades have led some economists and legal experts to conclude – contrary to conventional belief – that the strengthening of patent rights has frustrated, rather than supported, incentives to innovate}, thicket_def={def1}, thicket_def_extract={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...}, tags={Pools}, filename={Gallini (2011) 300-- Private Agreements For Coordinating Patent Rights.pdf} } @article{ganslandt2009intellectual, title={Intellectual property rights and competition policy}, author={Ganslandt, M.306},
year={2009},
research_type={Discussion},
industry={IT, BiotechNanotech},
thicket_stance={Weak Pro},
thicket_stance_extract={Patent thickets may, therefore, impede In most cases this will deter many smaller startups and research centres from attempting to traverse 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 designedthicket. In terms of empirical evidenceAlso broad, 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 overlapping and conflicting thickets are likely to lead to lengthy and they find little evidence that university research has been impeded by concerns about patents on research toolscostly patent battles.}, thicket_def={Def1#B2-T, Broad Patents, Def22Overlapping Patents, Diversely-Held}, thicket_def_extract={In additionWhen multiple organisations each own individual patents that are collectively necessary for a particular technology, their competing intellectual property rights form a "patent thicket"... However, if this does not happen, the significant increase nanotechnology research is bound to get stifled in an atmosphere of fragmented intellectual property and broad overlapping claims, [FN30] although licencing also carries with it the multiplicity problem of patentsprotracted negotiations, delays, referred high royalties and other transaction costs. In most cases this will deter many smaller startups and research centres from attempting to as “patent thickets” traverse the patent thicket. Also broad, overlapping and “patent floods”, conflicting thickets are considered by many likely to impede the ability of firms lead to conduct R&D activity effectively (Eisenberg 1989; Shapiro 2001).lengthy and costly patent battles.. A second issue relevant for sequential innovations is so-called “patent thickets”. In some industries, particularly biotechnology and information technologies, it is common company that finds itself enmeshed in a new entrant, in order to engage in research or production, must obtain patent thicket has a large number of licenses from existing and previous innovators and producersoptions. This problem raises the cost of product commercialization It can either sue anyone it finds that may be potentially infringing its patent or attempt to commercialise its patent and may create substantial entry barriers for new firmsrisk being sued in return.}, tags={#Private Mechanisms, Pools, Open Source, NPEs, #IPR Reform, AntitrustBalance with Anti-trust}, filename={Ganslandt DSilva (2009) - Intellectual Property Rights Pools Thickets And Competition PolicyOpen Source Nanotechnology.pdf}
}
number = {1},
pages = {pp. 2561-50106}, language = {English}, year = {20112009}, abstract publisher = {Commentators have poured forth a loud and sustained outcry over the past few years that sees property rule treatment of intellectual property (IP) as a cause of excessive transaction costs, thickets, anticommons, hold-ups, hold-outs, and trolls, which unduly tax and retard innovation, competitionYale Law & Policy Review, and economic growthInc. The popular response has been to seek a legislative shift towards some limited use of weaker}, liability rule treatment copyright = {Copyright © 2009 Yale Law & Policy Review, usually portrayed as “just enough” to facilitate transactions in those special cases where the bargaining problems are at their worst and where escape hatches are most neededInc. This essay is designed to make two contributions. First}, it shows how a set of changes in case law over just the past few years have hugely re-shaped the patent system from having several major, and helpful, liability-rule pressure-release valves, into a system that is fast becoming almost devoid of significant property rule characteristics, at least for those small entities that would most need property rule protection. The essay then explores some harmful effects of this shift, focusing on the ways liability rule treatment can seriously impede the beneficial deal-making mechanisms that facilitate innovation and competition. The basic intuition behind this bad effect of liability rules is that they seriously frustrate the ability for a market-challenging patentee to attract and hold the constructive attention of a potential contracting party (especially one that is a larger more established party) while preserving the option to terminate the negotiations in favor of striking a deal with a different party. At the same time, liability rules can have an additional bad effect of helping existing competitors to coordinate with each other over ways to keep out new entrants. The essay is designed to contribute to the literature on IP in particular, as well as the broader literatures on property and coordination, by first showing how a seemingly disconnected set of changes to the legal rules impacting a particular legal regime like the patent system can have unintended and sweeping harmful consequences, and then by exploring why within the more middle range of the spectrum between the two poles of property rules and liability rules, a general shift towards the property side may be preferred by those seeking an increase in access and competition. abstract={}, discipline={EconLaw}, research_type={DiscussionTheory},
industry={General},
thicket_stance={Assumed Pro}, thicket_stance_extract={In More fundamentally still, the vast majority innumerable overlapping patents in certain high tech fields create an impenetrable "thicket" that frustrates quixotic conceptions of the intellectual property (IP) literatureCoasian bargaining and acts only as an anticommons that paradoxically fore closes innovation.}, property rule treatment of IP is said to cause excessive transaction costs thicket_def={#A-S, thickets#B-S, anticommonsOverlapping Patents, holdHold-upsup}, thicket_def_extract={...Property rights advocates further note that such fears such as irrational hold- outsout?most often voiced in the con text of patent thickets and experimental use?are not supported by empirical evidence.3... 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. One's exclusion of another from his land is isolated; a single patentee's ability to enjoin production of a semiconductor chip that implicates thousands of patents creates powerful negative externalities. Given such distinctions, many view the worlds of patent law and trollstraditional property as sufficiently distinct to be unworthy of direct analogy... Most paradigmatically, unduly taxing inadvertent trespass onto another's land?coupled with sunk investment and retarding innovationnebulous boundaries?may lead to the imposition of a liability rule and the loss of a right to injunctive relief for the property owner. Sound reasoning underlies this element of the law, and it would seem no less applicable to the world of IP. Where an infringer has conducted a meaningful search, competitionwhere the omitted patent, which is neither licensed nor marketed, is lost amongst thousands in an impenetrable thicket, and economic growthwhere the patent's indeter minate claims?even had they been discovered?would have lead a potential infringer to conclude as a matter of probability that its planned activity is non infringing, analogy to the law of real property would similarly suggest the im plementation of a liability rule.}Allowing a non-practicing patentee to enjoin the activity of an innocent infringer following massive investment by the latter creates perverse incentives, thicket_def={}inefficiencies, thicket_def_extract={and wealth transfers of questionable desirability.}, tags={Recent Trends in Case Law about #IPR Reform, Probabilistic Patents and Liability, Prevent Hold-up/Royalty Stacking, #Private Mechanisms, Pools, Changes to Nature of IPR, Low Patent Quality}, filename={Kieff Devlin (20112009) - Removing Property From Intellectual Indeterminism And The Property And IntendedPatent Equation.pdf}
}
@article{kwon2012patentdhar20071, title={Patent Thicket, Secrecy, The Impact of Intellectual Property Rights in the Plant and LicensingSeed Industry}, author={KwonDhar, IT. and Foltz, J.}, journal={The Korean Economic ReviewAgricultural Biotechnolgy and Intellectual Property Protection: Seeds of Change}, volumepages={28161}, numberyear={12007}, pagespublisher={27--49}, year={2012CABI}, abstract={This paper considers a patent portfolio race where firms compete work uses changes in intellectual property rights regimes for complementary patents, called plants as a patent thicket. When firms have an option way to identify the value and cost to keep their innovation secretindustries and society of the different components of property rights: exclusivity, research exemptions, this paper shows that there exists an equilibrium where firms’ patent propensity is strictly between zero and onerevelation of research outcomes. In such an equilibrium, stronger patent protection reduces the firms’ investment A simple model is described that can account for these differences in innovationcompany choice of intellectual property versus keeping trade secrets. Moreover, this result does not change even when The data used include observations on multiple crop types over a licensing contract is feasiblespan of 20+ years across 3 different intellectual property rights regimes. Differences in the replicability of crop types are shown to cause intellectual property rights to have diverse sets of incentives for research and property rights claims.},
discipline={Econ},
research_type={Theory, Empirical}, industry={ICTGenetics},
thicket_stance={Weak Pro},
thicket_stance_extract={ThusA number of observers of patenting, on particularly in the one handbiological sciences, firms would try to build up their patent portfolio, or have suggested that patenting rules and overlapping claims have generated a "patent thicket, to defend their product. On the other hand, such potential patent lawsuits would eventually reduce " that has impeded innovation and made the R&D investmentprocess more costly (Rai, called 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 hold-up problembiopharmaceutical industry.}, thicket_def={def1#B1, Broad Patents, Overlapping Patents, Single Firm, Cummulative Invention}, thicket_def_extract={A growing number of studies have emphasized the negative effect observers of patenting, particularly in the hold-up problem when firms compete for biological sciences, have suggested that patenting rules and overlapping claims have generated a portfolio of complementary patents, called apatent "patent thicket " that has impeded innovation and made the R&D process more costly (e.g.Rai, Bessen 2004, Hall and Ziedonis 2001; Rai, Shapiro 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.}, tags={Economic model trying to solve the holdup problem by licensingFirm Strategy, Cumulative Innovation, Industry Commentary, #Private Mechanisms, Regime Selection}, filename={Kwon Dhar Foltz (20122007) - Patent Thicket Secrecy The Impact Of Intellectual Property Rights In The Plant And LicensingSeed Industry.pdf}
}
@article{lanjouw2004protectingeisenmann2008managing, title = {Protecting Intellectual Property Rights: Are Small Firms Handicapped?Managing Proprietary and Shared Platforms}, author = {Jean OEisenmann, Thomas R. Lanjouw and Mark Schankerman}, journal = {Journal of Law and EconomicsCalifornia Management Review}, volume = {4750}, number = {14}, pages = {pp. 4531-7453}, abstract = {Abstract This paper studies the determinants of patent suits In a platform-mediated network, users rely on a common platform (provided by one or more intermediaries) that encompasses infrastructure and settlements during 1978–99 rules required by linking information from the Uusers to transact with each other.S. patent office, the federal courts, and industry sources. We find A fundamental design decision for firms that litigation risk aspire to develop platform-mediated networks is much higher for patents that are owned by individuals and firms whether to preserve proprietary control or share their platform with small patent portfoliosrivals. Patentees with A proprietary platform has a large portfolio of patents to tradesingle provider that solely controls its technology (for example, or other characteristics that facilitate “cooperative” resolution of disputesFederal Express, are much less likely to prosecute infringement suits. HoweverApple Macintosh, postsuit outcomes do not depend on these characteristicsor Google). These findings show that small patentees are at With a significant disadvantage shared platform such as Visa, DVD, or Linux, multiple firms collaborate in protecting their patent rights because their greater litigation risk is not offset by more rapid resolution of their suits. Our empirical estimates of developing the heterogeneity platform's technology and then compete in litigation risk can help in developing private patent litigation insurance to mitigate offering users different but compatible versions of the adverse affects of high enforcement costsplatform. 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.}, year = {20042008}, publisher = {The University of Chicago California Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School}, copyright = {Copyright © 2004 The 2008 University of Chicago}, discipline={Law, Econ}, research_type={Empirical}, industry={General}, thicket_stance={Assumed Pro}, thicket_stance_extract={Carl Shapiro emphasizes that firms rely heavily on cross-licensing arrangements and patent pools as a way of mitigating these problems of the anticommons (fragmented property rights).47 But small firms are effectively blocked from using these arrangements unless cash payments are accepted for participation, and typically they are not.}, thicket_def={References Shapiro}, thicket_def_extract={}, tags={Litigation issues for small firms}, filename={Lanjouw Schankerman (2004) - Protecting Intellectual Property Rights Are Small Firms Handicapped.pdf} } @article{lemley2006patent, title={Patent Holdup and Royalty Stacking}, author={Lemley, M. and Shapiro, C.}, year={2006}, abstract={We study several interconnected problems that arise under the current U.S. patent system when a patent covers one component or feature of a complex product. This situation is common in the information technology sector of the economy. Our analysis applies to cases involving reasonable royalties, but not lost profits. First, we show using bargaining theory that the threat to obtain a permanent injunction greatly enhances the patent holder’s negotiating power, leading to royalty rates that exceed a natural benchmark range based on the value of the patented technology and the strength of the patent. Such royalty overcharges are especially great for weak patents covering a minor feature of a product with a sizeable price/cost margin, including products sold by firms that themselves have made substantial R&D investments. These royalty overcharges do not disappear even if the allegedly infringing firm is fully aware of the patent when it initially designs its product. However, the hold-up problems caused by the threat of injunctions are reduced if courts regularly grant stays to permanent injunctions to give defendants time to redesign their products to avoid infringement when this is possible. Second, we show how hold-up problems are magnified in the presence of royalty stacking, i.e., when multiple patents read on a single product. Third, using third-generation cellular telephones and Wi-Fi as leading examples, we illustrate that royalty stacking can become a very serious problem, especially in the standard-setting context where hundreds or even thousands of patents can read on a single product standard. Fourth, we discuss the use of “reasonable royalties” to award damages in patent infringement cases. We report empirical results regarding the measurement of “reasonable royalties” by the courts and identify various practical problems that tend to lead courts to over-estimate “reasonable royalties” in the presence of royalty stacking. Finally, we make suggestions for patent reform based on our theoretical and empirical findings.California Press}, discipline={EconMgmt}, research_type={TheoryDiscussion},
industry={ICT},
thicket_stance={Pro},
thicket_stance_extract={The fact that a great many patents A second type of IP-based claim can read occur when shared platforms rely on many different patented technologies, each of which has no obvious substitute. Firms may find themselves in a single productpatent "thicket, and that this is common " in certain critical industrieswhich several parties are able to derail a shared platform by threatening to withhold necessary contributions.12 Each firm can issue an ultimatum, creates numerous practical problems for the operation demanding a large share of the patent systemplatform's added value.}, thicket_def={def1#A, cites Heller and Eisenberg(1998)References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={Royalty stackingA 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 thickets"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, and the related “anti-commons” problem have been demanding a source large share of concern in the semiconductor and biotechnology industries for some timeplatform's added value}, tags={Royalty-stacking#Private Mechanisms, Shared Platforms, Licensing, Joint Ventures, hold-upComplements}, filename={Lemley Shapiro Eisenmann (20062008) - Patent Holdup Managing Proprietary And Royalty StackingShared Platforms.pdf}
}
@article{lemley2005probabilisticeisenstein2010up, title={Probabilistic PatentsUp for Grabs}, author={LemleyEisenstein, M.A}, journal={Nature Biotechnology}, volume={28}, number={6}, pages={544--546}, year={2010}, 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 ShapiroUnited Kingdom (Table 1), Ceach 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.}, journaldiscipline={General Science}, research_type={Discussion}, industry={Genetics, Biotech}, thicket_stance={Assumed Pro}, thicket_stance_extract={The Journal As issued patents on induced pluripotent stem (iPS) cells stack up, the specter of Economic Perspectivesa patent thicket looms.}, volumethicket_def={19#C1a, Dubious Patents, Overlapping Patents, Single Firm}, numberthicket_def_extract={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.}, tags={2#Industry Commentary, #Firm Strategy, Collaboration}, pagesfilename={75Eisenstein (2010) --98Up For Grabs.pdf} } @article{federal2003promote, title={To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy}, author={Federal Trade Commission}, journal={Washington, DC}, year={20052003},
abstract={},
discipline={EconPolicy Report}, research_type={TheoryDiscussion}, industry={General, PharmaceuticalPharma, Biotech, ICT, Semiconductor},
thicket_stance={Pro},
thicket_stance_extract={SimilarlyQuestionable 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 thickets that claims a single routine in a software program may be asserted to hold up production of the entire software program. This process can have deleterious effects deter follow-on both competition innovation and unjustifiably raise costs to businesses and innovation, ultimately, to consumers.}, thicket_def={def1#B, #C1, References Shapiro, Quotes Shapiro, Dubious Patents, Overlapping Patents, Unspecified Blocking Mechanism, Strategic Patenting (Bad)}, thicket_def_extract={In This tends to create a patent thicket that is, a “dense web of overlapping intellectual property rights that a number company must hack its way through in order to actually commercialize new technology"... Questionable patents contribute to the patent thicket. Much of this thicket of overlapping patent rights results from the nature of key industriesthe technology;... Moreover, particularly semiconductors (Hall as more and Ziedonismore patents issue on incremental inventions, 2001) firms seek more and computer software (Bessen and Hunt, 2004), companies file numerous patent applications on related components that are integrated into a single functional productmore patents to have enough bargaining chips to obtain access to others’ overlapping patents.21...The result is In the context of a "patent thicket," in which hundreds 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 apply frustrate competition by current manufacturers as well as potential entrants. Because a manufacturer needs a license to a single all of the patents that cover its product (Shapiro, 2001; FTC, 2003)firms can use questionable patents to extract high royalties or to threaten litigation...}, tags={cross#IPR Reform, Balance with Anti-licensingtrust, Duration Limits, Review of Patent Validity, #Firm Strategy, Willful infringement, Blocking patents, uncertaintyDefensive/Offensive Patenting}, filename={Lemley Shapiro FTC (20052003) - Probabilistic PatentsTo Promote Innovation.pdf}
}
@article{lemley2005patentingfederal2011evolving, title={Patenting NanotechnologyThe Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition.”}, author={Lemley, M.A.Federal Trade Commission}, journal={Stanford Law Review}March, pages={601--630available at http://www.ftc.gov/os/2011/03/110307patentreport.pdf}, year={20052011}, abstract={Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so signficant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century - computer hardware, software, the Internet, even biotechnology- the basic building blocks of the field were either unpatented or teh patents were amde available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largerly actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well.This overlap may signficantly affect thier incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.}, discipline={LawPolicy Report},
research_type={Discussion},
industry={NanotechnologyGeneral},
thicket_stance={Pro},
thicket_stance_extract={The dispersion Overcompensation of overlapping patents across too many firms can also create an anticommons or thicket problemcertain patented technologies over-incentivizes invention in that area, making effective use to the detriment of more productive innovative activity. It also over-incentivizes the technology difficultpursuit of patents for their own sake, if not impossibleunnecessarily increasing the number of patents in a given field beyond what is necessary to encourage productive innovation.}, thicket_def={def1#B, #C1, refers potential of building-block patents to stifle downstream innovation and difficulty of acquiring licenses from patent holdersReferences Shapiro, Quotes Shapiro, Transaction Costs, Overlapping Patents, Unspecified Blocking Mechanism}, thicket_def_extract={Some fear One commentator explains that ownership this strategy usually involves acquiring a large quantity of nanotechnology often low quality patents is too fragmented, risking the development meaning those that are vague, likely invalid, or that provide narrow coverage of a feature having little commercial value.2 Indeed, IT products are often surrounded by “patent thickets” densely overlapping patent "thicketrights held by multiple patent owners.".. Large numbers of patents can create “patent thickets”35 and increase transaction costs for manufacturers that seek to clear the rights needed to produce a product.36}, tags={Thoughts on the potential effect of patent thickets on the nanotech industry#IPR Reform, Balance with Anti-trust, Duration Limits, Industry Specific Policy, Prevent Hold-up/Royalty Stacking}, filename={Lemley FTC (20052011) - Patenting NanotechnologyThe Evolving IP Marketplace.pdf}
}
@techreportarticle{llanes2009anticommonsfeldman2004open, title={Anticommons and Optimal The Open Source Biotechnology Movement: Is It Patent Policy in a Model of Sequential InnovationMisuse?}, author={LlanesFeldman, GR. and Trento}, S. journal={Minnesota Journal of Law, Science \& Technology}, yearvolume={20096}, abstractyear={When innovation is sequential, the development of new products depends on the access to previous discoveries. As a consequence the patent system affects both the revenues and the cost of the innovator. We construct a model of sequential innovation in which an innovator uses n patented inputs in R&D to invent a new product. We ask three questions: (i) what is the net effect of patents on innovation as technologies become more complex (n increases)? (ii) are patent pools welfare enhancing? (iii) what is the optimal response of patent policy as technological complexity increases? We find that the answers to these questions depend on the degree of complementarity and substitutability between the inputs used in research.2004}, discipline={EconLaw}, research_type={Theory, Discussion}, industry={Biomedical, Biotechnology, ICTBiotech},
thicket_stance={Neutral},
thicket_stance_extract={When Scholars have used the inputs are complements, term “patent thicket” to describe the profitability 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 is decreasing , particularly in the technological complexitybiotech field. In the limit (when n -> infinity)21 One scholar, when the degree of substitutability is below a threshold level, which is higher than 1however, has challenged the innovation is never profitablenotion. This paper therefore gives a formal treatment 22 John Walsh argues that firms simply work around the problem of multiple rights for example, by moving offshore beyond the tragedy reach of the anticommons. On the other handpatent rights, when inventing around the inputs are substitutesrights, the profitability of the innovation is increasing in technological complexityand using public research tools. Even in this case23 In particular, when n -> infinity, the cost of gathering all the inputs for the innovation is always too high from a social point of view Walsh argues that academic researchers routinely ignore rights structures and thus the probability of innovation is suboptimalthat patent holders passively acquiesce.}, thicket_def={def5#B-T, References Shapiro, Overlapping Patents, Unspecified Blocking Mechanism, Diversely-Held, Transaction Costs, Cummulative Invention}, thicket_def_extract={As Finally, any anticompetitive effects of the open source behavior would be outweighed by the number procompetitive effects of inputs needed in research increases, the innovator faces a reducing patent thicket thickets and is threatened by promoting the possibility creation and dissemination of holdideas without a short-up, namely term restriction of supply.... Scholars have used the term “patent thicket” to describe the risk problem of multiple overlapping rights that a useful can hamper innovation is not developed because by creating transaction barriers. Most scholars and those reporting from the field agree that large numbers of lack of agreement with rights hamper research and innovation, particularly in the biotech field.21 One scholar, however, has challenged the patent holdersnotion. This 22 John Walsh argues that firms simply work around the problem has been dubbed of multiple rights for example, by moving offshore beyond the tragedy reach of the anticommons (Heller 1998patent rights, inventing around the rights, and using public research tools.23 In particular, Heller Walsh argues that academic researchers routinely ignore rights structures and Eisenberg 1998)that patent holders passively acquiesce...In areas not plagued by patent thickets, basic research tools may be controlled by one entity or a small group of entities}, tags={patent pool#Private Mechanisms, Licensing, Open Source, licensing#Effects on Academic Research}, filename={Llanes Trento Feldman (20092004) - Anticommons And Optimal The Open Source Biotechnology Movement Is It Patent Policy In A Model Of Sequential InnovationMisuse.pdf}
}
year={2008},
abstract={The value One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patented innovations has attracted substantial patent thickets and the extent to which any such bottlenecks may be interfering with research attention. For decades, especially in scholars warned that problems related to the context over proliferation of patent renewalrights would interfere with innovation. HoweverIn contrast, research often assumes a growing body of commentary argues that patent thickets are not a firm’s patented innovations are independent from each otherproblem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.We draw upon evolutionary economics and suggest that some The rhetoric is particularly heated these days because of a firm’s patents share important genealogical relationshipsdramatic changes underway in patent law. Research bottlenecks, or lack thereof, which we refer are invoked either in support of or in opposition to as internal sequential innovations.We propose internal sequential innovations are more valuable such changes, and therefore more likely it is difficult to have a rational discussion when so much seems to be renewed than stand-alone innovationsat stake. We examine our hypotheses Stepping back from the rhetoric a dataset bit, this Article suggests that one can sometimes indirectly observe effects, even if one cannot directly measure the extent of US pharmaceutical and biotechnology patentsa phenomenon. The results confirm our hypotheses With this in mind, the Article describes three approaches appearing in modern patent markets that are directed at both mitigating the effects of patent thickets. These approaches can be described as Open Source, Open Access, and Open Transfer. From our vantage point, we may not be able to see or to measure the firm levelsdepth of the thicket. We can, however, observe the altered growth patterns that give us some indication of where the problems lie.}, discipline={EconLaw}, research_type={EmpiricalTheory}, industry={Pharmaceutical, BiotechnologyAcademia}, thicket_stance={Assumed AntiWeak Pro}, thicket_stance_extract={With If patent thickets exist, the power of concern is that they will substantially impair research and development because the intellectual regime, internal sequential innovations offer a larger thicket tools of protection that can define invention cannot flow freely through the underlying technologies in a set of overlapping patentsresearch and development community.}, thicket_def={def6#A-T, #B-T, Overlapping Patents, Unspecified Blocking Mechanism, Diversely-Held, Transaction Costs, Always Hinders Innovation, Cummulative Invention}, thicket_def_extract={With On the patent front, a key debate concerns the power existence, or non-existence, of bottlenecks such as patent thickets and the intellectual regimeextent to which any patent thickets may be interfering with research. For decades, internal sequential innovations offer a larger thicket of protection scholars warned that can define problems related to the underlying technologies in a set over proliferation of overlapping patentspatent rights would interfere with innovation. That is1 In theory, a sequence of patents revolving around the same technological trajectory multiple overlapping patent rights can define hamper innovation by creating high transactions costs as researchers try to navigate the intellectual property more precisely and protect it with an enlarged degree tangle of coverageexisting rights. The holder of such patented innovations These costs can thereafter exclude competitors from discourage investment in research or distort the paths that researchers take due to the collective scope difficulty of the claims laid out in identifying and negotiating all of the sequential patents (Wagner and Parchomovsky, 2005)underlying rights necessary to begin researching. In contrast, stand-alone innovations are more likely This leads to be invented around inefficiencies and the underlying underutilization of intellectual property has a higher hazard of being appropriated (Shapiro, 2000)resources.}, tags={Internal sequential innovationsPrivate Mchanisms, Open Source, Open Transfer, renewalsOpen Access}, filename={Liu Feldman Nelson (2008) - Internal Sequential InnovationsOpen Source Open Access Open Transfer.pdf}
}
@article{meniere2008patentgallini2011private, title={Private Agreements for Coordinating Patent Rights: The Case of Patent Law and Complementary InnovationsPools}, author={M{\'e}ni{\`e}reGallini, YN.}, journal={European Economic ReviewEconomia e Politica Industriale}, volume={52}, number={7}, pagesyear={1125--11392011}, yearpublisher={2008FrancoAngeli Editore}, abstract={The patent system was initially designed Inventors and users of technology often enter into cooperative agreements for sharing their intellectual property in order to provide incentives implement a standard or to develop stand-alone innovations in fi
elds such as mechanics, chemicals or pharmaceuticals. Its application is therefore problematical in more recent
elds such as biotechnology and ICT industries, where innovation patterns are different. A well-known problem concerns cumulative innovationsavoid costly litigation. Patent law must then trade off Over the rights granted to upstream patent owners with the incentives to develop subsequent innovations (Scotchmerpast two decades, 1991; Donoghue, Scotchmer and Thisse, 1998; Denicolò, 2000)U. Another issue concerns complementary innovations, which are the focus of the paperS. When
final products embody several antitrust authorities have viewed pooling arrangements that integrate complementary innovations, the scattering of valid and essential patents between various owners jeopardizes the commercial exploitation of the products because of negotiation and royalty stacking issues (Merges & Nelsonas having procompetitive benefits in reducing prices, 1990; Heller & Eisenbergtransactions costs, 1998; Shapiro, 2001). In biotechnology, this is and the case incidence of therapeutic proteins or genetic diagnostic tests that require the use of multiple patented gene fragments (Heller & Eisenberglegal suits. Since patent pools are cooperative agreements, 1998). It is they also very frequent in ICT industries such as electronics, computer hardware and software, where
firms have to navigate "patent thickets" (Shapiro, 2001). Shapiro (2001) reportsthe potential of suppressing competition if, for example, that in the semi-conductor industry
rms receive thousands of they harbor weak or invalid patents each year and manufacturers can potentially infringe , dampen incentives to conduct research on hundreds of patents innovations that compete with a single product". The situation is similar in the U.S. software industry, where there are potentially dozens or hundreds of pooled patents covering individual components of a product(FTC, 2003). I study the problem of the production of complementary innovations in a model of dynamic R&D foreclose competition between two
firmsfrom downstream product or upstream input markets, and argue or raise prices on goods that in some cases complementary innovations should not be patentable as such, but bundled compete with other innovations prior to patenting. To do so I consider two complementary innovations and examine whether they should be patented separately or as a bundle. This approach echoes several papers on cumulative innovations where patentability requirements are de
ned as the need to develop two or more successive innovations before obtaining a patent (Scotchmer and Green, 1990; Hunt, 1995; ODonoghue, Scotchmer and Thisse, 1998; Denicolò, 2000)pooled patents. As regards complementary innovations, In synthesizing the optimal patenting rule depends on a trade-off between ideas advanced in the pro
fit loss due economic literature, this paper explores whether these antitrust concerns apply to scattered pools with complementary patents, and the possible bene
fit of patent disclosure. The scattering of complementary patents between different owners creates a double marginalization issue. Since each patentee behaves as a monopolist, the Cournot (1838) theorem predicts that prices if they do not maximize the
rmspro
ts (Shapiro, 2001; Lerner & Tirole, 2005)1 . The requirement that complementary innovations be bundled prior to patenting can be a way to prevent this pro
t loss. However, small innovations are not disclosed when innovations have to be bundled prior to patenting (Scotchmer and Green, 1990). As a result,
firms lose the possibility to quit the race after a
first innovation has been patented, which leads implications for competition policy to R&D cost duplicationsconstrain them. I show that patent disclosure has a positive social effect, although it does not permit a fully effi cient coordination between
firms. In this context, bundling innovations prior Special attention is given to patenting can be more effi cient if innovations can be devel- oped quickly. As I argue in the Conclusion, this condition is consistent with the legal de
nition application of the "inventive step" patentability requirementU. The paper is structured in six sectionsS. First, the model is introduced in Section 2. Section 3 then considers the case in which innovations can be patented separately, while Section 4 focuses on the case in which they must be bundled prior to patenting. Section 5 compares the social outcomes Department of the two requireJustice- ments. Finally, Section 6 concludes and discusses Federal Trade Commission Guidelines for the policy implications Licensing of the modelIntellectual Property (1995) and its companion Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (2007) to recent patent pool cases.},
discipline={Econ},
research_type={Theory},
industry={ICT, BiotechnologyGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={The present paper upholds policy arguments that emphasize the importance To avoid legal suits, developers of these products entangled in a severe application of this patentability requirement as a means “patent thicket” 2 have had to limit the size of "negotiate with multiple patent thickets" and to promote innovation owners, stacking up royalty obligations 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 & Nelsonprocess, 1990; Heller or abandon R& Eisenberg, 1998; Shapiro, 2001)D on the innovation altogether.}, thicket_def={def1#A, #B, References Shapiro, Overlapping Patents, Royalty Stacking, Diversely-Held, Unspecified Blocking Mechanism}, thicket_def_extract={It is also very frequent To avoid legal suits, developers of these products entangled in ICT industries such as electronicsa “patent thicket” 2 have had to negotiate with multiple patent owners, computer hardware stacking up royalty obligations in the process, or abandon R&D on the innovation altogether... A patent thicket arises when there are overlapping patent rights that must be identified and software, where
rms have licensed in order for an innovator to bring a new product or technology to navigate "patent thickets" market (Shapiro, 2001).}, tags={Patent disclosure#Private Mechanisms, Pools, bundling and separate patentsComplements, }, filename={Meniere Gallini (20082011) - Private Agreements For Coordinating Patent Law And Complementary InnovationsRights.pdf}
}
@article{paredes2006writtenganslandt2009intellectual, title={Written Description Requirement in Nanotechnology: Clearing a Patent ThicketIntellectual Property Rights and Competition Policy}, author={ParedesGanslandt, J.PM.}, journal={J. Pat. \& Trademark Off. Soc'y}, volumeyear={882009}, pagespublisher={489}, year={2006Emerald Group Publishing Limited}, abstract={Nanotechnology is an emerging technology, Intellectual property rights and as an emerging technology, there competition policy are certain intellectual property issues surrounding the appropriate protection for nanotechnologyintimately related. Broadly speaking, nanotechnology is In this paper I survey the manufacture of structures and manipulation of matter within dimensions below 100 nanometers, where unique phenomena enable novel applications. At economic literature analyzing the nanoscale, the physical, chemical, interaction between intellectual property law and biological properties of materials differ in fundamental competition law and valuable ways from how the properties of individual atoms and molecules or bulk matter.' Researchers and companies are attempting at applying boundary between these novel properties to a wide-range of applications and industriestwo policies is drawn in practice.' One important Recognizing that intellectual property issue rights and competition law can interact in addressing nanotechnology is many different ways, the patenting of innovative techniques and compositions of matter which are necessary for downstream innovationpresentation focuses on several key issues. The notion of a patent thicket is where an overlapping set of patent rights requires that those seeking to commercialize new technology obtain licenses from multiple patentees. If you get monopoly rights down at economic literature on the bottom, "you may stifle interaction between competition that uses those patents later on law and so the breadth and utilization of patent intellectual property rights can be used not only to stifle competition, but also have adverse effects in the long run on innovation." The patent thicket problem in nanotechnology has been suggested by a recent report by LuxResearch (hereinafter "LuxReport"), indicating shows that many patents have been filed relating to nanomaterials with their claims overlapping.While many companies will want to use these nanomaterials, the LuxReport states these companies will be forced to license patents from many different sourcesregulatory systems are consistent in terms of basic principles. PotentiallySignificant tensions exist, there will be significant transactional costs for further nanotechnology developments due to these overlapping claims. Moreoverhowever, the quality of these nanotechnology patents has been repeatedly called into question," so the navigation of a patent thicket will have and it is difficult to be around these questionable patents. The legal principles in the written description requirement could clear some of this patent thicket by narrowing overlapping claims in nanotechnology during examination, litigation, balance IPR and especially competition law in postgrant procedurespractice. This paper generally discusses 1) the background of the nanomaterials The significant differences in approach between the LuxReport United States and the patent thicket; 2) European Union simply reflect the legal principles within the written description requirement; 3) why the written description requirement should be used; 4) the application of the legal principles within the written description requirement underlying reality that efforts to nanomaterials discussed achieve a sensible balance do not result in the LuxReport; and 5) proposals for the written description requirement for the USPTO, the Federal Circuit, and postgrant procedurespolicy harmonization.}, discipline={LawEcon},
research_type={Discussion},
industry={Nanotechnology}ICT, 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.}, thicket_def={def1}, thicket_def_extract={The notion of a patent thicket is where an overlapping set of patent rights requires that those seeking to commercialize new technology obtain licenses from multiple patentees}, tags={Written Description Requirement for Patent Grant Procedures}, filename={Paredes (2006) - Written Description Requirement In Nanotechnology.pdf} } @article{reitzig2007sharks, title={On Sharks, Trolls, and Their Patent Prey—Unrealistic Damage Awards and Firms’ Strategies of “Being Infringed”}, author={Reitzig, M. and Henkel, J. and Heath, C.}, journal={Research Policy}, volume={36}, number={1}, pages={134--154}, year={2007}, abstract={Patent trolls (or sharks) are patent holding individuals or (often small) firms who trap R&D intensive manufacturers in patent infringement situations in order to receive damage awards for the illegitimate use of their technology. While of great concern to management, their existence and impact for both corporate decision makers and policy makers remains to be fully analyzed from an academic standpoint. In this paper we show why patent sharks can operate profitably, why they are of growing concern, how manufacturers can forearm themselves against them, and which issues policy makers need to address. To do so, we map international indemnification rules with strategic rationales of small patent-holding firms and large manufacturers within a theoretical model. Our central finding is that the courts’ unrealistic consideration of the trade-offs faced by inadvertent infringers is a central condition for sharks to operate profitably.}, discipline={Econ}, research_type={Theory}, industry={GeneralBiotech},
thicket_stance={Weak Pro},
thicket_stance_extract={We further argued that Patent thickets may, therefore, impede the increasing technology monitoring efforts for victims ability of trolls, namely large manufacturing R&D intensive firms, due to ballooning numbers conduct research effectively (Eisenberg 1989)... Shapiro (2001) argues that problems with patent thickets become especially thorny in conjunction with the risk of patent applicationshold-up, probably led to which is the increase danger that new products will inadvertently infringe on patents issued after these products were designed. In terms of sharks’ relevance for innovators. It facilitates 'trapping’ manufacturers by ‘hiding’ patented technologies empirical evidence, the problem may be insignificant in confusing patent thickets—a second necessary condition for sharks to operate. oreoverpractice, at least at the strengthening of patent holder’s rights in certain jurisdictions (egeneral level.gWalsh et al. (2003) find that drug discovery has not been substantially impeded by the US) most likely enabled sharks to operate more profitably, toomultiplicity of patented prior inventions and they find little evidence that university research has been impeded by concerns about patents on research tools.}, thicket_def={def7#A-T, References Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Transaction Costs, Barrier To Entry}, thicket_def_extract={As both articles showIn addition, the “strategic use” significant increase in the multiplicity of patents , referred to as “patent thickets” and “patent floods”, are considered by many to impede the ability of firms to conduct R&D activity effectively (the two most important types being blocking Eisenberg 1989; Shapiro 2001)... A second issue relevant for sequential innovations is so-called “patent thickets”. In some industries, particularly biotechnology and cross-licensing with patent ‘thickets’ playing information technologies, it is common that a major role for the latter)new entrant, has classically been discussed from the perspective of those patent holders who either 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 production cost of their own technological goods or consider themselves professional intellectual property suppliers who repeatedly interact with manufacturersproduct commercialization and may create substantial entry barriers for new firms.}, tags={Patent Trolls and Sharks and their operations#IPR Reform, Balance with Anti-trust, International Harmonization, Cross-licensing, #Private Mechanisms, Pools, Litigation}, filename={Reitzig Henkel Heath Ganslandt (20072009) - On Sharks Trolls Intellectual Property Rights And Their Patent PreyCompetition Policy.pdf}
}
@inproceedingsarticle{rubinfeld2004strategicgaule2006towards, title={Towards Patent Pools in Biotechnology?}, author={Gaul{\'e}, P.}, journal={Innovation Strategy Today}, volume={2}, number={2}, pages={123--143}, year={2006}, abstract={}, discipline={Mgmt}, research_type={Discussion}, industry={Biotech}, thicket_stance={Weak Pro}, thicket_stance_extract={The Strategic Use strength of Patentsthe anti-commons thesis rests on two assumptions that are very difficult to test: Implications for Antitrust(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.}, authorthicket_def={Rubinfeld#A-T, #B-T, Single Firm, Diversely-Held, DUnspecified Blocking Mechanism}, thicket_def_extract={Medimmune has recently acquired exclusive licenses from the portfolios of Wisconsin, St.LJude, and Mount Sinai School of Medicine (“Technology for Faster, Safer Development of Pandemic Flu Vaccine Licensed by Mount School of Medicine” 2005; “MedImmune Expands Patent Estate for Reverse Genetics with New Rights from Mount Sinai School of Medicine” 2005). The IP rights situation described above was arguably a classical case of a patent thicket with fragmented IP rights and Manessuncertainty 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}, tags={#Private Mechanisms, Patent Pools, Cross-Licensing, Standards, }, filename={Gaule (2006) - Towards Patent Pools In Biotechnology.pdf} } @article{gilbert2010ties, title={Ties That Bind: Policies to Promote (Good) Patent Pools}, author={Gilbert, R.J.}, booktitlejournal={Antitrust, Patent and Copyright ConferenceLaw Journal}, year={20042010},
abstract={},
discipline={Law},
research_type={Discussion},
industry={RetailGeneral}, thicket_stance={Pro}, thicket_stance_extract={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.}, thicket_def={#A-ST, References Shapiro, Diversely-Held, Complementary Inputs, Transaction Costs, Overlapping Patents}, thicket_def_extract={A “patent thicket,” in which many independent patent holders have rights that cover a technology, is one example of the anticommons...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)}, tags={#Private Mechanisms, Pools, #IPR Reform, Balance with Anti-trust, #Firm Strategy, Collboration, FRAND, Compulsory Licensing}, filename={Gilbert (2010) - Ties That Bind Policies To Promote Good Patent Pools.pdf} } @article{glover2002patent, title={Patent thickets and innovation markets reviewed}, author={Glover, Gregory J}, journal={National Law Journal}, volume={24}, number={56}, pages={C10}, year={2002}, abstract={The u.s federal Trade Commission (FTC), in conjunction with the Antitrust Division of the Department of Justice (DOJ), conducted public hearings in February for the purpose of re-evaluating its enforcement policies regarding the use and licensing of intellectual property. In particular, one of the issues FTC and the DOJ chose to examine was whether "patent thickets" and "innovation markets" raise significant anti-competitive concerns in the pharmaceutical and biotechnology industries.}, discipline={Law}, research_type={Discussion}, industry={Pharma, Biotech},
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 No consensus was reached at the hearings as well. The result may be a “race” to grow one’s IP portfolio. Unfortunately, however, it is not clear whether the widespread existence of patent thickets or controlling patents that race will be “to grant market power within the top” (i.e.biopharmaceutical industry, in partly because the social interest), problem has not yet created significant antitrust concerns that warrant censure or “to the bottom” (i.e., harmful from a social point of view)investigations.}, thicket_def={def1#B1, References Shapiro, Broad Patents, Cummulative Invention, Unspecified Blocking Mechanism}, thicket_def_extract={Shapiro (2001) characterizes a patent thicket Patent thickets have been described as "a “dense dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology," requiring innovators to obtain multiple licenses from multiple patentees...”Furthermore, the practice of seeking patent protection for commonly used gene-based research tools, such as expressed sequence tags, DNA-chip and microarray technology and single nucleotide polymorphism (SNP) based technology, have led to concerns that the process of cumulative innovation in the biopharmaceutical industry may be stymied by protective patent thickets that could result in barriers to entry by firms that would be prevented from using the technologies protected by such patent thickets... However, many of the concerns over excessively broad patent protection for gene-based research tools have been mitigated by the requirements for patentability as required by patent law. In particular, the utility requirement (35 U.S.C. 101) as recently interpreted by the PTO serves as a check to runaway patent protection on partially sequenced genes for which the expressed product is unknown.}, tags={Patent Thickets strategic use in negotiation and business strategy}, filename={Rubinfeld Maness Glover (20042002) - The Strategic Use Of Patents Implications For AntitrustPatent Thickets And Innovation Markets Reviewed.pdf}
}
@article{rey2012abusegoozner2006innovation, title={Abuse of Dominance and Licensing of Intellectual PropertyInnovation in Biomedicine: Can Stem Cell Research Lead the Way to Affordability?}, author={ReyGoozner, P. and Salant, DM.}, journal={International Journal of Industrial OrganizationPLoS medicine}, yearvolume={20123}, abstractnumber={This paper examines the impact of the licensing policies of one or more upstream owners of essential intellectual property (IP hereafter) on the downstream firms that require access to that IP5}, as well as on consumers and social welfare. The paper considers a model in which there is product differentiation downstream. License fees and fixed entry costs determine the number of downstream competitors and thus variety. We first consider the case where there is a single upstream owner of essential IP. Increasing the number of licenses enhances product variety pages={e126}, which creates added value year={2006}, but it also intensifies downstream competition, which dissipates profits. We derive conditions under which the upstream IP monopoly will then want to provide an excessive or insufficient number publisher={Public Library of licensesScience}, relative to the number that maximizes consumer surplus or social welfare.When there are multiple owners of essential IP, royalty stacking can reduce the number of the downstream licensees, but also the downstream equilibrium prices the consumers face.The paper derives conditions determining whether this reduction in downstream price and variety is beneficial to consumers or society. Finally, the paper explores the impact of alternative licensing policies. With fixed license fees or royalties expressed as a percentage of the price, an upstream IP owner cannot control the intensity of downstream competition. In contrast, volumebased license fees (i.e., per-unit access fees), do permit an upstream owner to control downstream competition and to replicate the outcome of complete integration. The paper also shows that vertical integration can have little impact on downstream competition and licensing terms when IP owners charge fixed or volume-based access fees. abstract={}, discipline={EconGeneral Science}, research_type={TheoryDiscussion}, industry={GeneralBiotech, Genetics}, thicket_stance={Assumed Pro}, thicket_stance_extract={Patent thickets have long been a concern due to This proliferation of basic science patents has raised the potential bar— what economists call transaction costs— for delaying deployment 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 products and adversely affecting consumersinquiry.}, thicket_def={def9#A-T, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={Patent thicketsWhile many researchers, especially in academia, layers of licenses a firm needs to be able to offer products that embody technologies owned by multiple firmsfind ways around patent restrictions, and licensing policies many companies have no trouble executing license agreements, there are cases where “patent thickets” have drawn increasing scrutiny discouraged other researchers from policy makerspursuing similar or subsequent lines of inquiry... Patent thickets involve complementary products, which gives rise CIRM and other stem cell funders can become catalysts for cutting through this patent thicket. They can require that all grant recipients agree to double marginalization - donate the so-called royalty stacking problem - exclusive license to any insights, materials, and has the potential technologies that they patent to retard diffusion of a common patent pool supervised by a new technologies and reduce consumer welfare, nonprofi t organization...}, tags={Optimal licensing policies regarding downstream competition#Private Mechanisms, fixed access feesIndustry Commentary, Licensing, Patent Pool, Open Source}, filename={Rey Salant Goozner (20122006) - Abuse Of Dominance And Licensing Of Intellectual PropertyInnovation In Biomedicine.pdf}
}
thicket_stance={Assumed Pro},
thicket_stance_extract={As described The first of the problems Barr describes is clearly a case of mutually assured destruction that leaves the firms in Shapiro question no better (2001and no worse)off than if they were not accumulating massive numbers of patents for defensive purposes, more and more companies are facing yet at the same time is a patent thicket requiring them very costly strategy. Increasing the administrative costs of patents to firms or reforms within the industry itself to obtain multiple licenses discourage this behavior would seem to bring their products safely be the obvious solution, since it would be in the interest of all firms involved to marketreduce spending on this activity.}, thicket_def={def1#A-S, References Shapiro}, thicket_def_extract={As described During the U.S. Federal Trade Commission/Department of Justice hearings on the patent system and antitrust policy in Shapiro (2001)2002, more a number of industry representatives expressed concerns about the difficulty of negotiating the patent thicket in their area and more companies are facing the risk of being “held-up” ex post by a patent thicket requiring them on a technology that was only a small component of their product. “My observation is that patents have not been a positive force in stimulating innovation at Cisco. …….. Everything we have done to create new products would have been done even if we could not obtain multiple licenses patents on the innovations and inventions contained in these products. …..The only practical response to this problem of unintentional and sometimes unavoidable patent infringement is to file hundreds of patents each year ourselves, so that we can have something to bring their products safely to marketthe table in cross-licensing negotiations. ….}, tags={Mergers#IPR Reform, Patent PoolsStricter Patenting Requirements, Negotiated Entry Dates#Firm Strategy, Settlement effectsDefensive/Offensive Patenting}, filename={Shapiro Hall (20032007) - Antitrust Limits To Patents And Patent SettlementsPolicy.pdf}
}
@article{sabety2004nanotechnologyhemphill2003preemptive, title={Nanotechnology innovation 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}, 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.}, discipline={Econ}, research_type={Discussion}, industry={Biotech, Genetics}, thicket_stance={Pro}, thicket_stance_extract={To forestall imitative activity and strengthen patent rights, firms often attempt to create a ‘patent thicket: Which IP policies promote growth,’ 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.}, thicket_def={#D, Unspecified Blocking Mechanism, Barrier To Entry, Single Firm}, thicket_def_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... The creation of a patent thicket of sleeping patents by an incumbent firm with monopoly power is a strategy referred to as ‘preemptive patenting.’ And, as noted by Shapiro [25], given cumulative innovation and multiple blocking patents, stronger patent rights can have the perverse effect of stifling, not encouraging, innovation. According to Gilbert and Newbery [26], such a firm has an incentive to maintain its monopoly power by patenting new technologies before potential competitors. The monopoly firm will preempt if the cost is less than the profits gained by preventing entry}, tags={#Firm Strategy, Value from Position/Portfolio, Defensive/Offensive Patenting, Pre-emptive Patenting}, filename={Hemphill (2003) - Preemptive Patenting Human Genomics And The Us Biotechnology Sector.pdf} } @article{holman2005biotechnology, title={Biotechnology's Prescription for Patent Reform}, author={SabetyHolman, TC.M.}, journal={AlbJ. Marshall Rev. Intell. LJ SciProp. \& TechL.}, volume={155}, pages={477i}, year={20042005}, 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.},
discipline={Law},
research_type={Discussion},
industry={Nanotechnology, RadioBiotech}, thicket_stance={NeutralAnti}, thicket_stance_extract={On the one hand, the fear of the If in fact a patent thicket has been raised: "[i]f you get monopoly rights down at the bottomis significantly impeding biotechnology research and development, you may stifle competition one might expect that uses those patents later on and so . . . organizations representing the breadth interests of biotechnology, such as BIO, WARF, and utilization of patent rights can Genentech, would be used not only to stifle competition, but also have adverse effects in advocating for reforms that would address the long run on innovationproblem."9On Indeed, the other hand, encouraging private investment in commercialization biotechnology industry has also never been raised: "[b]y enabling corporations shy about advocating for legislative action to negotiate exclusive licenses of promising technologies [that were publicly funded]address its concerns.112 But instead,... [this] encourage[s] them these groups tend to invest in be among the most adamant defenders of the additional research, development, status quo and manufacturing capabilities needed to bring new products to marketstrong patent rights." The information technology industry did One might infer from this that a patent thicket is not suffer severe patent deadlock in its early years while the radio industry didfact substantially impeding biotechnology.}, thicket_def={def1#B1, #D, References Heller/Eisenberg, Diversely-Held}, thicket_def_extract={Carl Shapiro defines "Various commentators have proposed that a proliferation of patents poses a serious threat to biotechnology research by creating a patent thicket" , sometimes referred to as "an overlapping set 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... These commentators predict that the patenting of upstream technology will result in a difficult-to-penetrate thicket of patent rights requiring that those seeking to commercialize new technology obtain licenses from multiple patenteeswill severely impede biomedical research and development.110 The idea has found resonance with many, and its influence is evident in a variety of critiques of the current patent system."111 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}, tags={licensing#IPR Reform, Renewal, government fundingStricter Patenting Requirements}, filename={Sabety Holman (20042005) - Nanotechnology Innovation And The Biotechnologys Prescription For Patent ThicketReform.pdf}
}
}
@article{schneider2008fencesholman2008trends, title={Fences and competition Trends in patent racesHuman Gene Patent Litigation}, author={SchneiderHolman, C.M.}, journal={International Journal of Industrial OrganizationScience}, volume={26322}, number={65899}, pages={1348198--1364199},
year={2008},
}
@article{santore2010patenthorn2003alternative, title = {Patent Pools as a Solution Alternative Approaches to Efficient IP management: One-stop Technology Platform Licensing of Complementary Patents? Some Experimental Evidence}, author = {Rudy Santore and Michael McKeeHorn, and David BjornstadL.}, journal = {Journal of Law and Economicscommercial biotechnology}, volume = {539}, number = {12}, pages = {pp. 167119--183127}, year = {20102003}, publisher = {The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law SchoolPalgrave Macmillan}, abstract = {Abstract Production requiring As a pioneering, one-stop technology platform licensing groups of complementary patents implements enterprise, MPEG LA is presented as a coordination game among template for patent holderspooling. By providing the marketplace with fair, reasonable, who can price patents by choosing among combinations non- discriminatory access to a portfolio of fixed and royalty fees. Summed across worldwide essential patentsunder a single licence, these fees become the total producer cost this example of the package a one-stop technology platform licensing programme enables widespread implementation, interoperability and use of fundamental broad-based technologies covered by many patentsowned by many patent owners. Royalties, because they function as excise taxes, add to marginal costs, resulting in higher prices This paper will: (1) present observations from MPEG LA’s unique experience and reduced quantities perspective including a description of the downstream product necessary elements and lower payoffs to the patent holders. Using fixed fees eliminates this inefficiency but yields a more complex coordination game in principles on which there such efforts are multiple equilibriabased, which are very fragile in that small mistakes can lead the downstream firm what works and why; and (2) describe efforts to apply this innovative licensing model to not license the technology, resulting in inefficient outcomes. We report on a laboratory market investigation of biotechnology and pharmaceutical industries within the efficiency effects larger context of coordinated pricing of patents in historical patent pooling as a patent pool. We find that pool-like pricing agreements can yield fewer coordination failures in the pricing of complementary patentssolution to biotechnology bottlenecks.}, discipline={Law, Econ}, research_type={Theory, EmpiricalDiscussion}, industry={GeneralICT, Biotech, Pharma}, thicket_stance={Assumed Pro}, thicket_stance_extract={More recentlyIn 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 National Academy patent pool, the transaction costs required to identify the blocking patents and conclude negotiations for a licence under each of Sciences them (2006assuming the patent owners are even willing to enter into licence negotiations) committee studied , to say nothing of paying multiple royalties, are too costly for the average user - with the issueresult that technological advancement, concluding that even though evidence adoption and use are impeded; freedom of blocking or market failures has yet to emerge, technological movement is restricted; the anticommons or patent thickets may well emerge as profit opportunities in biomedical markets growpotential for conflict is increased; and traditional one-on-one licensing arrangements fall short.}, thicket_def={def1#B, References Shapiro, Unspecified Blocking Mechanism, Transaction Costs}, thicket_def_extract={Shapiro (2001) broadens the concept as a “patent thicket” in which possible outcomes include excessively high fees for Therefore, if the ‘thicket’2 of essential IP rights underlying their use of the patent set, uncertainty regarding potential patent infringement, cannot be accessed under reasonable terms andconditions (eg cost) applied evenly to all similarly situated competitors, in the limit, holdup problemsbest of standards often go unused.}, tags={patent pools#Private Mechanisms, Pools, Platforms, Licensing, Standards, Patent Intermediaries}, filename={Santore McKee Bjornstad Horn (20102003) - Patent Pools As A Solution Alternative Approaches To Efficient Licensing Of Complementary PatentsIP Management.pdf}
}
@article{tullis2005applicationhussinger2006silence, title={Application 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}, 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 Government License Defense importance of patenting versus secrecy as an effective alternative to Federally Funded Nanotechnology Researchprotect 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}, research_type={Empirical}, industry={General, Manufacturing}, thicket_stance={Neutral}, thicket_stance_extract={A further development is that patents gained in value by their ability to be linked with other patents, which encourages patenting of marginal inven- tions. The resulting complex network of single patents that bears many legal pitfalls for patent applicants was given the name ‘patent thicket’ (Shapiro, 2001). These developments put into question an increased number of patents motivated by an increased need for IP protection and hint at the strategic value of patents to have driven the patent surge. To summarize: The Case on the one hand, recent changes in patenting schemes have caused an elevated need for a Limited Patent Compulsory Licensing Regimepatents as an IP protection tool. On the other hand, they gained in importance as strategic instruments.}, thicket_def={#D, References Shapiro, Unspecified Blocking Mechanism, Strategic Patenting (Bad)}, authorthicket_def_extract={TullisA further development is that patents gained in value by their ability to be linked with other patents, Twhich encourages patenting of marginal inventions.KThe resulting complex network of single patents that bears many legal pitfalls for patent applicants was given the name ‘patent thicket’ (Shapiro, 2001). These developments put into question an increased number of patents motivated by an increased need for IP protection and hint at the strategic value of patents to have driven the patent surge.}, tags={#Firm Strategy, Secrecy}, journalfilename={UCLA LHussinger (2006) - Is Silence Golden Patents Versus Secrecy At The Firm Level. Revpdf} } @article{iyama2005uspto, title={The USPTO's Proposal of a Biological Research Tool Patent Pool Doesn't Hold Water}, author={Iyama, S.}, volumejournal={53Stanford Law Review}, pages={2791223--1241},
year={2005},
abstract={Nanotechnology's potential impact on worldwide industries has nations around the world investing billions of dollars for research in order to capture a part of the projected trillion dollar market for nanotechnology products in 2010. The current rush to patent nanotechnologies may lead to an overcrowded nanotechnology patent thicket that could deter critical innovation and continued product development in the United States. At this early stage of nanotechnology's life cycle, increasing numbers of broad and potentially overlapping patents are being issued--while few nonexclusive licenses are being offered. Furthermore, the lack of significant case law provides little guidance on proper nanotechnology patent scope and validity, while the decline of legal defenses such as experimental use leaves innovators exposed to potential infringement liability for even the most fundamental of scientific research studies. In this Comment, the author proposes that the U.S. government exercises the full extent of its rights under the twenty-five year old Bayh-Dole Act and develop the government license defense to create a limited patent compulsory licensing regime for the fruits of federally funded research. The author argues that recipients of the billions of dollars in federal nanotechnology research funds should provide broad, nonexclusive licenses to the privatized patent rights they obtain as a result of public funding. Ultimately, a well-formulated government license defense, which assesses the extent to which an "infringing" act against a federally funded patent falls along a spectrum of fair use, would provide a means for overcoming the innovation-impeding effects of absolute exclusion rights.},
discipline={Law},
research_type={Discussion},
industry={NanotechnologyBiotech, Academia}, thicket_stance={Assumed Pro}, thicket_stance_extract={The development of such But how likely is it that a patent thicket could deter further innovationfor biological research will develop? According to the NIH working group on research tools, 6 and the active enforcement by nanotechnology patent holders a thicket of their exclusivity rights ultimately could research tool patents has already begun to form...The cumulative result in of these actions is the creation initial formation of a nanotechnology anticommons-a situation in which a scarce resource becomes prone to underuse because there are too many owners holding patent thicket for research tools. The negative consequence of an extensive research tool patent thicket and its accompanying licensing scheme is the right to exclude others from that resource, and no one has an effective privilege of usepotential chilling effect on innovation.}, thicket_def={def1References Shapiro, Overlapping Patents, Unspecified Blocking Mechanism, Cummulative Invention}, thicket_def_extract={Unfortunately#B, Under this metaphor, the rush to secure worldwide intellectual property rights in nanotechnology could lead to the development of a "patent thicketarises when each block is granted separate yet concurrent exclusivity rights." This term, coined by intellectual property scholars, refers to an The so-called thicket is the resulting nexus of concurrent and overlapping set of patent IP rights that requires researchers, inventors, and entrepreneurs seeking one must navigate in order to commercialize new technologies to obtain licenses from multiple patenteespractice any evolutionary form of science.}, tags={government license defense#Private Mechanisms, IPR Reform, Pools, Balance with Anti-trust}, filename={Tullis Iyama (2005) - Application The Usptos Proposal Of The Government License Defense To Federally Funded Nanotechnology A Biological ResearchTool Patent Pool Doesnt Hold Water.pdf}
}
@article{taylor2003americanjacob2009patents, title={American Patent Policy, Biotechnology, Patents and African Agriculture: The Case for Policy ChangePharmaceuticals}, author={TaylorJacob, M.R. and Cayford, J.Robin}, journalyear={Harv. JL \& Tech.2009}, volume={17}, pages={321}, yearjournal={2003A paper given on 29th November at the Presentation of the Directorate-General of Competition’s Preliminary Report of the Pharma-sector inquiry},
abstract={},
discipline={LawPolicy Report}, research_type={TheoryDiscussion}, industry={BiotechnologyPharma}, thicket_stance={ProNeutral}, thicket_stance_extract={The 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 a problem because useful innovation in biotechnology requires multiple inventive steps the nature of the patent system itself that this should happen and technologiesit has always happened. The field of biotechnology There is particularly dependent on nothing new about “evergreening”, only the name and the implication which flows from the cumulative work of many researchersword, that there is something sinister going on and therefore is vulnerable to the “anticommons” problem mentioned earlierthat it has only recently been discovered.}, thicket_def={def1Single Firm, Evergreening}, thicket_def_extract={This pattern — the increasing number of patents#C1, increasing patent breadth#D, Every patentee of a major invention is likely to come up with improvements and alleged improvements to his invention. By the issuance of patents on more basic discoveries — time his main patent has created what some call expired there will be a patent thicket in biotechnology: “an overlapping set of patent rights requiring that those seeking patents intended to commercialize new technology obtain licenses from multiple patenteesextend his monopoly.}, tags={patent policies negative effects on African agriculture#Firm Strategy, Evergreening, Industry Commentary}, filename={Taylor Cayford Jacob (20032009) - American Patent Policy Biotechnology Patents And African AgriculturePharmaceuticals.pdf}
}
}
@article{verbeure2006patentkato2004patent, title={Patent Pools and Diagnostic TestingPool Enhances Market Competition}, author={Verbeure, B. and van ZimmerenKato, E. and Matthijs, G. and Van Overwalle, GA.}, journal={TRENDS in BiotechnologyInternational Review of Law and Economics},
volume={24},
number={32}, pages={115255--120268}, year={20062004}, abstract={There This article investigates a pool of substitute patents that enable firms to reduce marginal costs of production. Contrary to the general belief, it is increasing concern shown that overlapping 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}, research_type={Theory}, industry={General}, thicket_stance={Assumed Pro}, thicket_stance_extract={In the field of genetics will create a costly and legally complex situation known as a economics, patent pools are analyzed by Shapiro (2000). He considers the role of patent pools in “patent thicket, ” whichmeans that there are so many patents issued that a single new patent will likely infringe on some other patents. This situation discourages and retards research, along with development and commercialization.}, thicket_def={References Shapiro, Overlapping Patents, Cummulative Invention}, thicket_def_extract={#A, #C1, In the field of economics, patent pools are analyzed by Shapiro (2000). He considers the associated issues role of accumulating royalty paymentspatent pools in “patent thicket, can act as ” which means that there are so many patents issued that a disincentive for innovationsingle new patent will likely infringe on some other patents. This situation discourages and retards research, development and commercialization.}, tags={#Private Mechanisms, Pools, Substitutes, Licensing}, filename={Kato (2004) - Patent Pool Enhances Market Competition.pdf} } @article{kesselheim2005university, title={University-based Science and Biotechnology Products}, author={Kesselheim, A.S. and Avorn, J. One potential means }, journal={JAMA: the journal of preventing this is for the patent holders to enter into a soAmerican Medical Association}, volume={293}, number={7}, pages={850--called patent pool854}, year={2005}, publisher={Am Med Assoc}, such abstract={The pharmaceutical and biotechnology industries have long relied on pat- enting as those established in the electronics primary means of allocating ownership and telecommunications industriescontrol over new discoveries. Precedents Yet, patent protection is a double-edged sword that has major implications for these also exist the future of innovation in biomedical science in the field United States. Excessive “upstream” patenting of geneticsgenes and molecular targets could hinder further research by creating a need for expensive and inefficient cross-licensing. However, notably with limiting such basic science patenting could allow pri- vate entities to use the patents pertaining results of years of costly publicly funded research to the SARS genomeproduce and market lucrative products without compensating university- or public sector–based innovators. In this reviewAcademic and other nonprofit research cen- ters would, therefore, we initially address be deprived of revenue for pursuing novel therapeu- tics or other seminal research work that may not be patentable. Recent court cases illustrate the patent pool concept inherent conflicts in general 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 its application in geneticsencouraging further innovation. Following this, we will explore These include establishing ba- sic science patent pools in the diagnostic field in more detail, and examine some existing mandating arbitration arrangements that would assign credit and novel examples of patent pools royalties for biotechnology innovations that depend on prior research that was performed, financed, or both in geneticsthe public sector.}, discipline={Policy ReportGeneral Science},
research_type={Discussion},
industry={BiotechnologyBiotech, Pharma}, thicket_stance={Weakly Weak Pro}, thicket_stance_extract={There is increasing concern that overlapping patents in the field of genetics will create a costly Basic investigations conducted at universities and legally complex situation known as a patent thicketacademic medical centers, whichusually publicly funded, along with often pro- duce key insights about the associated issues 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 accumulating royalty paymentsdevelopment, can act as allowing patenting of each incremental innovation could risk generating a disincentive for innovationdense thicket of overlap- ping intellectual rights and thus hinder research efforts.}, thicket_def={def24#B1, References Shapiro, Overlapping Patents, Cummulative Invention}, thicket_def_extract={Patent thicketBasic 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. The intellectual property portfolios In this chain of development, allowing patenting of several companies that form each incremental innovation could risk generating a dense web thicket of overlapping overlap- ping intellectual property rightrights and thus hinder research efforts.}, tags={patent pools#Industry Commentary, #Effects on Academic Research, #IPR Reform, #Private Mechanisms, Pools,}, filename={Verbeure Kesselheim Avorn (20062005) - Patent Pools University Based Science And Diagnostic TestingBiotechnology Products.pdf}
}
@article{wang2010risekim2004vertical, title={Rise of the Vertical Structure and Patent IntermediariesPools}, author={WangKim, AS.WH.}, journal={Berkeley Tech. LJReview of Industrial Organization},
volume={25},
number={3}, pages={159231--250}, year={20102004}, publisher={Springer}, abstract={Patents are evolving from purely exclusionary instruments into intellectual property assets It is well known that play a part in business strategy and have value as transactional goodspatent pools can enhance efficiency by eliminating the com- plements problem. Businesses operating in This paper investigates how the intellectual property marketplace have experienced an unprecedented explosion presence of activity involving these intangible but valuable assets. The new market for intellectual property has inspired entrepreneurial legal professionals and business professionals alike to create new companies and expand existing ones to act as middlemen, encouraging vertically integrated firms affects the continued proliferation economic impact of a patent transactionspool. These entities operate and thrive in Without a patent pool, the intermediary market between buyers and sellers presence of intellectual property integrated firms may either increase or decrease the final product price as well as auxiliary markets related to 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 protection of intellectual propertyeconomic efficiency arguments for patent pools are enhanced when some firms are vertically integrated.}, discipline={LawEcon}, research_type={DiscussionTheory}, industry={ICTGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={In this age When distinct firms are selling inputs – all of which are required for pro- duction of the final product – they fail to internalize the effect that their royalty rates have on the demand for other inputs. This results in each patent thickets, an organization must tread carefully lest it infringe countless patents just by doing business (cites Heller Eisenberg's Anticommons)holder setting too high a royalty rate. A "patent pool" has begun to attract widespread attention as a solution to both the transaction cost and complements problems.}, thicket_def={#A-T, References Shapiro, References Heller/Eisenberg, Overlapping Patents, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={Carl Shapiro defines a patent thicket as a “dense web The proliferation of fragmented and overlapping intellectual property patent rights that is increasingly being recognized as a company must hack its way through in order serious problem; referred to actually commercialize new technologyas a "patent thicket" (or "anticommons" by Heller and Eisenberg, 1998).” Carl Shapiro, Navigating Besides the Patent Thicket: Cross Licenses, Patent Pools, and Standard-Setting, additional transaction costs incurred in 1 INNOVATION POLICY AND THE ECONOMY 119navigating a patent thicket, 120 Shapiro (Adam B2001) has called attention to another source of inefficiency: the complements problem. Jaffe et alWhen distinct firms are selling inputs - all of which are required for production of the final product - they fail to internalize the effect that their royalty rates have on the demand for other inputs. edsThis results in each patent holder setting too high a royalty rate., 2001)}, tags={#Private Mechanisms, Pools, Raising rivals' costs, #Firm Strategy, Value from Position/Portfolio, Defensive/Offensive Patenting}, filename={Wang Kim (20102004) - Rise Of The Vertical Structure And Patent IntermediariesPools.pdf}
}
discipline={Law},
research_type={Theory, Discussion}, industry={ICTGeneral}, thicket_stance={AntiAssumed Pro}, thicket_stance_extract={Control-talk All three developments have led to what is of "the second enclosure movementperceived as a marked increase in junk patents,as well as what Carl Shapiro has termed a " the lurking patent thicket"tragedy -overlapping sets of the anticommons," or the dangers of "patent thickets" -not rights leading to mention the phenomenon a maze of litigation efforts (or perhaps social movements?) sporting their own slogans (and logos)cross-licensing agreements, such as "Free well as the Mouse," "Create Like It's 1790," or "When Copyright Attacksrise of hold-up litigation."}, thicket_def={def25#B, #C1, References Shapiro, Overlapping Patents, Hold-up}, thicket_def_extract={All three developments have led to what is perceived as a marked increase in junk patents, as well as what Carl Shapiro has termed a "Patent thicketspatent thicket" refer - overlapping sets of patent rights leading to the fact that in many areas a maze of technologycross-licensing agreements, great numbers as well as the rise of related patents exist at any particular time, and many might have applicability to any commercial producthold-up litigation.}, tags={information#IPR Reform, drmPost-grant Review, control#Firm Strategy, Willful Infringement}, filename={Wagner King (20032007) - Information Wants to be FreeClearing The Patent Thicket.pdf}
}
@article{allison2003businesskwon2012patent, title={The Business Method Patent MythThicket, Secrecy, and Licensing}, author={AllisonKwon, J.R. and Tiller, E.HI.}, journal={Berkeley Tech. LJThe Korean Economic Review}, volume={1828}, number={1}, pages={98727--49}, year={20032012}, abstract={Internet business method patents have been roundly criticized by most observers as being singularly inferior to most other patents. Many have even argued that business methods should not be patentable subject matter. As This paper considers a result, Congress and the Patent and Trademark Office (“PTO”) singled them out patent portfolio race where firms compete for special treatment. All of these criticisms werecomplementary patents, however, voiced without empirical support. We gathered data on most Internet business method patents issued through the end of 1999 and compared them with called a large contemporaneous data set of patents in general. We also compared them with patents in fourteen individual technology areas within the general patent data setthicket. Our comparison focused on several metrics that we believe serve as good proxies for patent quality and value. We found that Internet business method patents appear to When firms have been no worse than the average patent, and possibly even better than most. They also appear an option to have been no worsekeep their innovation secret, and possibly even better, than patents in most individual technology areas. These findings lead us to question the conventional wisdom this paper shows that Internet business method patents were uniquely deficient. We briefly explore some possible explanations for the chasm there exists an equilibrium where firms’ patent propensity is strictly between the accepted view zero and what we believe to have been the realityone. In such an equilibrium, including stronger patent protection reduces the possibility that negative opinions about these patents may have been the result of an information cascadefirms’ investment in innovation. More importantlyMoreover, we believe that efforts to single out these patents for special treatment this result does not only lacked sound justification in the particular case but also reveal more fundamental problems associated with ex ante definitions to carve out any particular technology area for different treatmentchange even when a licensing contract is feasible.}, discipline={LawEcon}, research_type={empiricalTheory}, industry={InternetICT}, thicket_stance={Assumed Weak Pro}, thicket_stance_extract={A Thus, on the one hand, firms would try to build up their patent portfolio, or 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 to defend their product. Re- gardless of On the particular manifestation of portfolio valueother hand, previous research has not cap- tured this aspect of such potential patent valuelawsuits would eventually reduce the R&D investment, and we have not ascertained a way to estimate called the effect of a patent’s contribution to a portfolio apart from whatever standhold-alone value it may or may not haveup problem.}, thicket_def={refs shapiroReferences Shapiro, quotes shapiroHold-up, Complementary Inputs}, thicket_def_extract={Carl Shapiro has #A, A growing number of studies have emphasized the negative effect of the hold-up problem when firms compete for a portfolio of complementary patents, called “a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technologypatent thicket (e.” Carl Sg. Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent PoolsBessen 2004, Hall and Standard SettingZiedonis 2001,Shapiro 2001).}, tags={patent quality#Private Mechanisms, Licensing, #Firm Strategy, Secrecy, Complements, internet business methods are patentableOffensive/Defensive Patenting, inter-industry comparison of patents and prior art referencesValue from Position/Portfolio}, filename={Allison Tiller Kwon (20032012) - The Business Method Patent MythThicket Secrecy And Licensing.pdf}
}
@inproceedingstechreport{arundel2003strategiclampe2009patent, title={Strategic PatentingDo Patent Pools Encourage Innovation? Evidence from the 19th-century Sewing Machine Industry}, author={ArundelLampe, AR.L. and PatelMoser, P.}, booktitleyear={Background report 2009}, institution={National Bureau of Economic Research}, abstract={Members of a patent pool agree to use a set of patents as if they were jointly owned by all members and license them as a package to other firms. Regulators favor pools as a means to encourage innovation: Pools are expected to reduce litigation risks for their members and lower license fees and transactions costs for other firms. This paper uses the example of the first patent pool in U.S. history, the Sewing Machine Combination (1856-1877) to perform the first empirical test of the effects of a patent pool on innovation. Contrary to theoretical predictions, the sewing machine pool appears to have discouraged patenting and innovation, in particular for the members of the pool. Data on stitches per minute, as an objectively quantifiable measure of innovation, confirm these findings. Innovation for both members and outside firms slowed as soon as the pool had been established and resumed only after it had dissolved.}, discipline={Econ}, research_type={Empirical}, industry={Sewing}, thicket_stance={Pro}, thicket_stance_extract={Almost one hundred years later, patent pools have re-emerged as a remedy for industries that are plagued by litigation and patent blocking, which occurs when owners of competing patents prevent the commercialization of new technologies.}, thicket_def={#B, References Shapiro, Unspecified Blocking Mechanism}, thicket_def_extract={Almost one hundred years later, patent pools have re-emerged as a remedy for industries that are plagued by litigation and patent blocking, which occurs when owners of competing patents prevent the commercialization of new technologies... Specifically, the prospect of a patent pool increases firms’ incentives to invest in R&D because lower risks of litigation and improved licensing schemes increase expected profits for participating firms...}, tags={#Private Mechanisms, Pools}, filename={Lampe Moser (2009) - Do Patent Pools Encourage Innovation.pdf} } @techreport{lampe2012patent, title={Do Patent Pools Encourage Innovation? Evidence from 20 US Industries under the Trend Chart Policy Benchmarking Workshop" New Trends in IPR PolicyDeal}, author={Lampe, R.L. and Moser, P.}, year={20032012}, institution={National Bureau of Economic Research},
abstract={},
discipline={PolicyEcon}, research_type={Theory, Statistics from other papersEmpirical}, industry={General, Public Research}, thicket_stance={NeutralWeak Pro}, thicket_stance_extract={Although there has been extensive discussion in For example, the creation of a pool may reduce the literature on need for member firms to create patent thickets and licensing hold-upsby reducing the threat of litigation (e.g., we know very little about how serious this problem is today or if it has slowed technological progressShapiro 2001; Gilbert 2004).}, thicket_def={Pro#C1, #D, quotes and refs shapiroReferences Shapiro, heller eisenbergDubious Patents}, thicket_def_extract={This has been called We also investigate whether part of the observed decline may be driven by a patent thicketreduction in lower-quality or “strategic” patents. For example, or a “dense web the creation of overlapping intellectual property rights that a company must hack its way through in order pool may reduce the need for member firms to actually commercialize new technology” create patent thickets by reducing the threat of litigation (e.g., Shapiro, in press2001; Gilbert 2004).}, tags={offensive and defensive use of patents#Private Mechanisms, Pools, #Firm Strategy, discussion of balancing incentives and strategic patentingValue from Position/Portfolio}, filename={Arundel Patel Lampe Moser (20032012) - Strategic PatentingDo Patent Pools Encourage Innovation.pdf}
}
@article{baluch2005relanjouw2004protecting, title={In re KumarProtecting Intellectual Property Rights: the First Nanotech Patent Case in the Federal CircuitAre Small Firms Handicapped?}, author={Baluch, A.SJean O. Lanjouw and Radomsky, L. and Maebius, S.B.Mark Schankerman}, journal={Nanotech. L. \& Bus.Journal of Law and Economics}, volume={247}, pagesnumber ={3441}, yearpages ={2005pp. 45-74}, abstract={On August 15, 2005, Abstract This paper studies the Court determinants of Appeals for patent suits and settlements during 1978–99 by linking information from the U.S. patent office, the Federal Circuit decided what federal courts, and industry sources. We find that litigation risk is arguably its first nanotech much higher for patents that are owned by individuals and firms with small patent case, In re Kumarportfolios. Although the court adjudicated the case on procedural groundsPatentees with a large portfolio of patents to trade, practitioners in the field or other characteristics that facilitate “cooperative” resolution of nanotechnology will appreciate several substantive themes in this decision. Firstdisputes, the court appears are much less likely to treat a nanotechnology patent appeal no differently than patent appeals in cases involving other technologiesprosecute infringement suits. In this regardHowever, the court did postsuit outcomes do not establish any special rules for nanotechnology patentsdepend on these characteristics. Second, the U.SThese findings show that small patentees are at a significant disadvantage in protecting their patent rights because their greater litigation risk is not offset by more rapid resolution of their suits. Patent and Trademark Qffice ("PTO') is apparently taking the quality Our empirical estimates of nanotechnology patents seriously, with the Solicitor himself as lead counsel on heterogeneity in litigation risk can help in developing private patent litigation insurance to mitigate the brief for the Commissioner adverse affects of Patents and Trademarkshigh enforcement costs. Third}, year = {2004}, the court's dicta provides nanotech inventors with guidance publisher = {The University of Chicago Press for overcoming § 103 obviousness rejections based on overlapping sizes The Booth School of nanoparticles. Such an argument, as nanotech commentators had predicted, may be used to rebut a prima facie case Business of obviousness where, as in this case, the claimed nanotech product is made by a different process than that University of Chicago and The University of the prior artChicago Law School}, copyright = {Copyright © 2004 The University of Chicago}, discipline={LawEcon}, research_type={DiscussionEmpirical}, industry={NanotechGeneral}, thicket_stance={NeutralAssumed Pro}, thicket_stance_extract={While there is nothing in Carl Shapiro emphasizes that firms rely heavily on cross-licensing arrangements and patent pools as a way of mitigating these problems of the patent law to prohibit new and nonobvious claims from overlapping anticommons (i.efragmented property rights).47 But small firms are effectively blocked from using these arrangements unless cash payments are accepted for participation, claims in different patents which cover the same product and which typically they are new and not obvious over the prior art), the commentators expressed concern that the allowed claims in some patents may be obvious over the prior art.}, thicket_def={Def28References Shapiro, Barrier To Entry, Unspecified Blocking Mechanism}, thicket_def_extract={#A large number , Our findings that patent portfolio size and technology concentration significantly affect litigation risk have important implications for R&D incentives. The threat of patents containing overlapping claims which cover the same product costly enforcement can affect R&D investment and patenting strategies.45 This is especially so for small, high-technology firms that are often referred more likely to face capital market constraints.46 Carl Shapiro emphasizes that firms rely heavily on cross-licensing arrangements and patent pools as a "patent thicket"way of mitigating these problems of the anticommons (fragmented property rights).47 But small firms are effectively blocked from using these arrangements unless cash payments are accepted for participation, and typically they are not.}, tags={Kumar caseValue from Position/Portfolio, prior art#Firm Strategy, patentabilityLitigation Insurance}, filename={Baluch Radomsky Maebius Lanjouw Schankerman (20052004) - In Re Kumar The First Nanotech Patent Case In The Federal CircuitProtecting Intellectual Property Rights Are Small Firms Handicapped.pdf}
}
@article{baron2010strategiclayne2011join, title={Strategic inputs into patent poolsTo Join or Not to Join: Examining Patent Pool Participation and Rent Sharing Rules}, author={BaronLayne-Farrar, J. Anne and DelcampLerner, H.Josh}, journal={Cerna working paperInternational Journal of Industrial Organization}, volume={29}, number={2}, pages={294--303}, year={20102011}, publisher={Elsevier}, abstract={This article explores what In recognition that participation in modern patent pools is voluntary, we present empirical evidence on participation rates and the factors determine that drive the decision of to join a patent pool , including the profit sharing rules adopted by the pool's founders. In most participation contexts, the at-risk group is extremely difficult, if not impossible, to accept new inputsidentify. We propose a dynamic analysis of 1337 U.S. patent inputs into 7 important For pools. This analysis highlights centered on technologies that result from a tradestandard-off between firm and patent characteristics as the determinants setting process, in contrast, we are able to identify a relatively unambiguous population of patents eligible for inclusion of patents into poolsbut that have not been included in the pool. For instance we prove We find that vertically integrated firms already member of the pool or holding large patent portfolios are able to include lower quality , with patents. These findings can be explained both by bargaining power and information asymmetry. In particulardownstream operations, as measured by are more likely to join a new indicator, insiders patent pool and among those firms practicing the technology file patents that are better aligned do join, those with the criteria relatively symmetric patent contributions (in terms of essentialityvalue) to a standard appear more likely to accept numeric patent share rules for dividing royalty earnings.},
discipline={Econ},
research_type={Empirical, Econometric Model}, industry={ICTGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={One aspect Until recently, the economic literature on patents pools–voluntary organizations created for the purpose of pooling a group of this patent patents into a single licensing package–has been quite sparse. Following on the heels of the intense interest in the theories of “patent thickets” and “royalty stacking” (e.g., Shapiro, 2001, 2006), and the increased proliferation is the « of organizations that promulgate technical standards for products and services, patent thicket » problem5pools are emerging as an important topic for economic analysis. The newfound interest is understandable, given that patent thicket describes a situation in which holders pools are one of different patents that are all necessary the more readily available tools proposed for complying with a standard mutually block each other in overcoming the implementation potentially harmful effects of the standardoverlapping or blocking patent rights (Merges, 1999; Shapiro, 2001).}, thicket_def={#A, #B, References shapiroShapiro, Overlapping Patents, quotes shapiroUnspecified Blocking Mechanism}, thicket_def_extract={The creator Until recently, the economic literature on patents pools - voluntary organizations created for the purpose of pooling a group of patents into a single licensing package - has been quite sparse. Following on the heels of the intense interest in the theories of this term defines "patent thickets" and "royalty stacking" (e.g., Shapiro, 2001, 2006), and the increased proliferation of organizations that promulgate technical standards for products and services, patent thicket pools are emerging as « a dense web an important topic for economic analysis. The newfound interest is understandable, given that patent pools are one of the more readily available tools proposed for overcoming the potentially harmful effects of overlapping intellectual property or blocking patent rights that a company must hack its way through in order to actually commercialize new technology. » (Merges, 1999; Shapiro, 2001)..}, tags={patent pools#Private Mechanisms, Pools, #Firm Strategy, inputsValue from Position/Portfolio, theory on pool patent inputsStandards}, filename={Baron Delcamp LayneFarrar Lerner (20102011) - Strategic Inputs Into Patent PoolsTo Join Or Not To Join.pdf}
}
@inproceedingsarticle{baron2011patentlayne2007pricing, title={Patent Pools and Patent InflationPricing Patents for Licensing in Standard-Setting Organizations: Making Sense of FRAND Commitments}, author={BaronLayne-Farrar, A. and Padilla, A.J. and PohlmannSchmalensee, TR.}, booktitlejournal={Antitrust LJ}, volume={Conference Proceedings: 4th ZEW Conference on the Economics of Innovation and Patenting74}, pages={671}, year={20112007}, abstract={This article provides empirical evidence that patent pools contribute to the patent inflation around technological standards. Building upon theoretical propositions drawn from Dequiedt We explore potential methods for assessing whether licensing terms for intellectual property declared essential within a standard setting organization can be considered fair, reasonable, and Versaevel non-discriminatory (2007FRAND) . We first consider extending Georgia-Pacific to a standard setting context. We then evaluate numeric proportionality, which is modelled after certain patent pool arrangements and which has been proposed in a database of 64pending FRAND antitrust suit.619 declarations of essential patents We then turn to major international Standard Developing Organizations two economic models with potential. The first—the efficient component-pricing rule (SDOECPR), we investigate how patent pools influence —is based on the number economic concept of patents market competition. The second—-the Shapley value method—is based on cooperative game theory models and social concepts for a standard over timefair division of rents. While the high number of patents in ICT technologies is increasingly recognized as hampering the implementation of standardsInterestingly, this is the first thorough empirical analysis of the driving factors of this patent inflation. We control these two distinct methods suggest a similar benchmark for a wide array of factors relating evaluating FRAND licenses, but ones which might appeal differently to standardization the courts and competition authorities in the technological field US as compared to isolate the incremental effect of patent poolsEurope. We find that patent pools increase under any approach, patents covering “essential” technologies with a greater contribution to the number value of essential patents especially through patent races in view the standard and without close substitutes before the standard gets adopted should receive higher royalty payments after the adoption of patent pool creation. To a lower extent, we also find evidence for opportunistic patent introductions into existing patent poolsthe standard.},
discipline={Econ},
research_type={Theoretical, Empirical, EconometricTheory}, industry={ICTGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={In view short, a poorly implemented numeric proportionality rule would not only fail to satisfy FRAND principles,23 it would also encourage a proliferation of patenting of these benefitsminor innovations...It would thus exacerbate any worries over patent proliferation and patent thickets, patent pools are seen as indispensable instruments already a hotly debated in cutting through the academic literature and popular press. For influential papers on patent thickets in ICT., see Shapiro (2001) and Heller and Eisenberg (1998)}, thicket_def={Refs Shpiro#C1, #D, References Shapiro, References Heller/Eisenberg, Dubious Patents}, thicket_def_extract={Patent pools are seen as In short, a potential solution poorly implemented numeric proportionality rule would not only fail to inefficiencies resulting from dense “thickets” satisfy FRAND principles,23 it would also encourage a proliferation of patenting of overlapping patents minor innovations...It would thus exacerbate any worries over patent proliferation and patent thickets, already a hotly debated in the academic literature and popular press. For influential papers on patent thickets, see Shapiro (Shapiro, 2001).and Heller and Eisenberg (1998)}, tags={patents losing quality as more are being added to pools#Private Mechanisms, Standards, SSOs, FRAND, uncertainty about pools ability to nurture R&DLicensing}, filename={Baron Pohlmann LayneFarrar (20112007) - Patent Pools And Patent InflationPricing Patents for Licensing in Standard-Setting Organizations.pdf} }
@article{barpujari2010patentleaffer2009patent, title={The patent regime Patent Misuse and nanotechnology: issues and challengesInnovation}, author={BarpujariLeaffer, IM.}, journal={Journal of Intellectual Property RightsJ. High Tech. L.}, volume={15}, number={310}, pages={206--213142}, year={20102009}, 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 teh fac 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.}, discipline={Policy ReportLaw}, research_type={DiscussionTheory}, industry={NanotechnologyGeneral},
thicket_stance={Weak Pro},
thicket_stance_extract={The Single company acquisition of a dense web of overlapping patents-patent thicket like situation thickets15-may create a seemingly impenetrable web which a company must hack its way through in nanotechnology created as a result order to commercialize new technology.1 6 As the number of many broad, building block issued patentsskyrocket, could seriously impede developing country researchers companies more frequently enter into arrangements with competitors "not only to recover their investment from engaging in research in nanotechnologycreating patented products but also to avoid the patent landmines that line the path of innovation."}, thicket_def={def27#B, #C1, Quotes Shapiro, Single Firm, Overlapping Patents, Unspecified Blocking Mechanism, Dubious Patents}, thicket_def_extract={When holders Single company acquisition of such broad a dense web of overlapping patents refuse -patent thickets 15-may create a seemingly impenetrable web which a company must hack its way through in order to license their commercialize new technology... As the number of issued patents or license these on exclusive basis or at prohibitive prices or skyrocket, companies more frequently enter into arrangements with restrictive conditions, it leads competitors "not only to recover their investment from creating patented products but also to avoid the patent landmines that line the growth path of innovation."17 Companies strategically use patent thickets impeding downstream research in nanotechnologylitigation as a means to protect their competitive position. The existence of 18 Even though a high number of such patents with broad and sometimescompany might believe that it is not infringing, overlapping claims adds it is often better to the problem settle than fight... Proctor & Gamble, Co. v. Paragon Trade Brands, Inc., 15 F. Supp. 2d 406, 414 (D. Del. 1998). The term "patent thicket" first appeared in this case. Id at 414, n.6.... As stated above, patent thickets may encompass patents of thickets and leads dubious merit.143 Unfortunately, it is costly to the fragmentation innovate around assertions of the patent landscapeinfringement.1}, tags={problems of patentability#Firm Strategy, Value from Position/Portfolio, Defensive/Offensive Patenting, Blocking patents, #Private Mechanisms, SSOs, special categories for nanotechGrant-backs, problems with too many restrictions on patent quality.Package Licenses}, filename={Barpujari Leaffer (20102009) - The Patent Regime And Nanotechnology Issues Misuse And ChallengesInnovation.pdf}
}
@article{bawa2007nanotechnologylee2006examining, title={Nanotechnology Examining the Viability of Patent Proliferation and Pools for the Crisis at the US Growing Nanotechnology Patent OfficeThicket}, author={BawaLee, RA.}, journal={AlbNanotech. LJ SciL. \& TechBus.}, volume={173}, pages={699317}, year={20072006}, abstract={There A patent pool is enormous excitement a cooperative arrangement between several patent holders, all of them necessary and expectation regarding nanotechnology's potential impact. Howeverfundamental to the creation of a product or process, securing valid and defensible patent protection will where all of the patents can be critical herelicensed at a single price. Although early forecasts They are an attractive option for nanotechnology commercialization are encouragingfragmented patent landscapes, there where they are bottlenecks as well. One created in hopes of avoiding the major hurdles is an emerging thicket of patent claimshigh cost associated with acquiring numerous licensing agreements, resulting primarily from avoid widespread patent proliferationdisputes, but also because of issuance of surprisingly broad patents by the U.S. Patent and Trademark Office (PTO)help create a standard, amongst other reasons. Adding This issue is especially relevant to this confusion is the fact taht the U.S. National Nanotechnology Initiative's widely-cited definition emerging scientific field of nanotechnology , where there is inaccurate and irrelevantwidespread concern about the fragmentation of the intellectual property landscape. This has also resulted paper aimed to develop a general list of criteria to aid in the PTO's flawed nanotechnology determining whether patent classification system. All of this is creating pools are a viable option for a chaotic, tangled patent landscape in vairous sectors of nanotechnology (e.g., nanoelectronics market by examining relevant literature and nanomedicine) in which competing players are unsure as conducting interviews; it was then applied to the validity dendritic nanotechnology’s drug delivery and enforceability of numerous issued patentspharmaceutical applications. If this trend continues, it could stifle competitionThe completed list had nine criteria and, limit access when applied 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 capabilitiesdendritic nanotechnology market, rising attrition, poor employee morale, and concludes that a skyrocketing patent pool will not be necessary for the continued advancement of this application backlog. Only The primary reason is that a robust patent system will stimulate huge amount of patents are in control of one company alone, Dendritic Nanotechnologies, and seem to be the primary source for the development of commercially viable nanotechnology productsmost highly sought after dendritic patents.}, discipline={Policy ReportLaw}, research_type={Theory, Basic Facts about the industry Discussion}, industry={NanotechnologyNanotech}, thicket_stance={Assumed Pro}, thicket_stance_extract={Therefore, if They are often viewed as the current dense "simplest solution" to intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets of IP (a.k.a patent landscape becomes more entangled and the thickets) or are uncertain if there is possible infringement of patent thicket problem worsens, it may prove to be the major bottleneck to viable commercialization, negatively impacting the entire nanotechnology revolutionissues (a.k.a. For investors, competing in this highPatent Hold-stakes patent game may prove too costlyUp).}, thicket_def={refs#B, quotes shapiroOverlapping Patents, Diversely-Held}, thicket_def_extract={Patent thickets are broadly defined in acadmeic discourse as "a 'dense web of overlapping ...to intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets of IP (a company must hack its way through in order to actually commercialize new technology.'"k... Such a patent thickets, a result of multiple blocking patents, naturally discourage and stifle innovation...)}, tags={too many rightsholders#Private Mechanisms, cross-licensing, enforceability of patents, issues with patents in nanotechnologyPools}, filename={Bawa Lee (20072006) - Nanotechnology Examining The Viability Of Patent Proliferation And Pools For The Crisis At The Us Growing Nanotechnology Patent OfficeThicket.pdf}
}
@article{bessen2003patentlei2009patents, title={Patent thicketsPatents versus Patenting: Strategic patenting Implications of complex technologiesIntellectual Property Protection for Biological Research}, author={BessenLei, Z. and Juneja, JR.}and Wright, journal={Available at SSRN 327760B.D.}, year={20032009}, abstract={Patent race models assume that an innovator wins A new survey shows scientists consider the only patent covering a product. But when technologies are complex, this proliferation of intellectual property right is defective: ownership of protection to have a product’s technology is shared, not exclusive. In that case I show that if patent standards are low, firms build “thickets” of patents, especially incumbent firms in mature industries. When they assert these patents, innovators are forced to share rents under cross-licenses, making R&D incentives sub-optimal. On the other hand, when lead time advantages are significant and patent standards are high, firms pursue strategies of “mutual non-aggression.” Then R&D incentives are stronger, even optimalstrongly negative effect on research.}, discipline={EconGeneral Science}, research_type={Theory, MathematicalSurvey}, industry={GeneralBiotech, ICTAcademia}, thicket_stance={ProAnti}, thicket_stance_extract={This paper argues Our respondents do not encounter an anticommons or a patent thicket. Rather, they believe that patent thickets can reduce R&D incentives even when there are institutionally mandated MTAs put sand in the wheels of a lively system of intradisciplinary exchanges of research tools. Seeing no transaction costscountervailing effect on the supply of these tools, holdup or vertical monopoly problemsthey conclude that patenting impedes the progress of research.}, thicket_def={def29References Shapiro, References Heller/Eisenberg, Unspecified Blocking Mechanism}, thicket_def_extract={The problem Baker describes is often called a “patent thicket#A, #B, This question has been of particular concern for the biological sciences, where production and exchange of biological ‘research tools’ are important for ongoing scientific progress.” These occur when each product may involve many patents, Recent studies addressing this issue in contrast with the one-to-one correspondence between products United States1,2, Germany3, Australia4 and patents Japan5 find that is assumed in “patent thickets”6 or an “anticommons”7 rarely affect the research of academic scientists... Our respondents do not encounter an anticommons or a patent race literaturethicket. Recent commentators suggest Rather, they believe that lower patenting standards encourage patent thickets, creating difficulties for innovators (see Gallini, 2002, for institutionally mandated MTAs put sand in the wheels of a review)lively system of intradisciplinary exchanges of research tools.When innovators must negotiate with large numbers Seeing no countervailing effect on the supply of patentholdersthese tools, they may face excessive transaction costs (Heller and Eisenberg, 1998), “holdup,” and problems conclude that patenting impedes the progress of vertical monopoly (Shapiro, 2001)research.}, tags={low innovation incentives#IPR Reform, lack of lead time advantagesResearch Exemption, Open Source, subsidize losers of innovation races#Effects on Academic Research}, filename={Bessen Lei Juneja Wright (20032009) - Patent Thickets Strategic Patents Versus Patenting Of Complex Technologies.pdf}
}
@article{calderini2006standardisationlemley2006patent, title={Standardisation in the ICT sector: The (complex) interface between antitrust Patent Holdup and intellectual propertyRoyalty Stacking}, author={CalderiniLemley, M. and GiannaccariShapiro, AC.}, journal={Econ. Innov. New Techn.}, volume={15}, number={6}, pages={543--567},
year={2006},
industry={ICT},
thicket_stance={Pro},
thicket_stance_extract={ObviouslyThe fact that a great many patents can read on a single product, and that this frequently results in high monetary and transaction costs. The entity of such costs is often so great as to discourage innovative activity common in the downstream phases of the innovation process... Contrarilycertain critical industries, in creates numerous practical problems for the presence operation 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 industrypatent system.}, thicket_def={refs shapiro#A, References Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held}, thicket_def_extract={This network is defined The fact that a great many patents can read on a patent thicket (Shapirosingle product, 2001). A patent thicket consists of a number of adjacent and overlapping property rightsthat this is common in certain critical industries, which impose on whoever wishes to use certain intermediate goods to ask creates numerous practical problems for licenses from several the operation of the patent holderssystem.}, tags={SSO#Private Mechanisms, SSOs, IP RightsStandards, Definition of SSOs#IPR Reform, Prevent Hold-up/Royalty-stacking, Reasonable Royalty}, filename={Calderini Giannaccari Lemley Shapiro (2006) - Standardisation In The Ict SectorPatent Holdup And Royalty Stacking.pdf}
}
@article{calderini2004intellectuallemley2005probabilistic, title={Intellectual Property Rights as Strategic Assets: The Case of European Patent Opposition in the Telecommunications IndustryProbabilistic Patents}, author={CalderiniLemley, M.A. and ScellatoShapiro, GC.}, journal={CESPRI, Centre for Research on Innovation and Internationalisation, Universita'Bocconi, Working Paper}, volume={158}, year={2004}, abstract={The paper empirically investigates the phenomenon of patent litigation through the analysis of the all population of European patents’ opposition cases in the telecommunication industry. We recover the complete legal history of each dispute and the patent portfolios of the firms involved. 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 counter- suits represents a credible threat that can eventually favour the instauration of collusive behaviours. Our results confirm this hypothesis, since the occurrence Journal of patent oppositions among large incumbents is significantly lower than industry average.Economic Perspectives}, disciplinevolume={Econ19}, research_typenumber={Theory, summary statistics2}, industry={Telecommunications, ICT}, thicket_stance={n/a}, thicket_stance_extractpages={n/a}, thicket_def={n/a}, thicket_def_extract={n/a}, tags={patent portfolios, strategic use of patents, retaliation risk}, filename={Calderini Scellato (2004) - Intellectual Property Rights As Strategic Assets.pdf} } @article{carrier2002antitrust, title={Why Antitrust Should Defer to the Intellectual Property Rules of Standard75-Setting Organizations: A Commentary on Teece \& (and) Sherry}, author={Carrier, M.A.}, journal={Minn. L. Rev.}, volume={87}, pages={2017-203498}, year={20022005},
abstract={},
discipline={LawEcon}, research_type={DiscussionTheory}, industry={General, Pharma},
thicket_stance={Pro},
thicket_stance_extract={The clearing of Similarly, patent thickets and fostering of cumulative innovation and new markets through SSOs offers perhaps the most powerful benefits for can have deleterious effects on both competition and innovation.}, thicket_def={#A, References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={In a number of key industries, particularly semiconductors (Hall and Ziedonis, 2001) and computer software (Bessen and Hunt, 2004), companies file numerous patent applications on related components that are integrated into a single functional product.The result is a "patent thicket," in which hundreds of patents can apply to a single product (Shapiro, 2001; FTC, 2003).}, tags={SSOs#Private Mechanisms, Cross-Licensing, Role #IPR Reform, Creation of AntitrustNew Classification, Stricter Patenting Requirements, Litigation}, filename={Carrier Lemley Shapiro (20022005) - Why Antitrust Should Defer To The Intellectual Property Rules Of SSOsProbabilistic Patents.pdf}
}
discipline={Law},
research_type={Discussion},
industry={ICTNanotech}, thicket_stance={NeutralPro}, thicket_stance_extract={The smartphone industry today is characterized by a dispersion of overlapping patents across too many firms can also create an anticommons or thicket problem, making effective use of patents and wars based on those patents.the technology difficult, if not impossible}, thicket_def={#A, #B, References Shapiro, Complementary Inputs, Diversely-Held, Overlapping Patents, Cummulative Invention}, thicket_def_extract={While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk... In a surprising range of fields of invention over the past century in what we might think of as "enabling" technologies24 - computer hardware, software, the Internet, even biotechnology - the basic building blocks of the field were either unpatented, through mistake or because they were created by government or university scientists with no interest in patents, or the patents presented no obstacle because the government compelled licensing of the patents, or they were ultimately invalidated. In still other fields, including the laser, the integrated circuit, and polymer chemistry, basic building-block patents did issue, but they were delayed so long in interference proceedings that the industry developed in the absence of enforceable patents... These facts in combination mean that patents will cast a larger shadow over nanotech than they have over any other modern science at a comparable stage of development. Indeed, not since the birth of the airplane a hundred years ago have we seen similar efforts by a range of different inventors to patent basic concepts in advance of a developed market for end products.76 Some fear that ownership of nanotechnology patents is too fragmented, risking the development of a patent "thicket."77 Miller offers several examples of nanoscale technologies that have overlapping patents covering the same basic invention, including the carbon nanotube and semiconducting nanocrystals.}, tags={SSOs#Effects on Academic Research, #Private Mechanisms, Licensing, FRANDCompulsory Licensing, Smartphone#IPR Reform, AntitrustNPEs}, filename={Carrier Lemley (20122005) - A Roadmap To The Smartphone Patent Wars And Frand LicensingPatenting Nanotechnology.pdf}
}
@article{choi2005livelerner2005theeconomics, title={Live The Economics of Technology Sharing: Open Source and let live: A tale of weak patentsBeyond}, author={ChoiLerner, Josh and Tirole, J.P.Jean}, journal={The Journal of the European Economic AssociationPerspectives}, volume={319}, number={2-3}, pages={724-pp. 99-733}, year={2005120}, abstract={Patent protection has gradually expanded over time, and This paper reviews our understanding of the growing open source movement. We highlight how many patents aspects of suspect value are routinely granted owing open source software appear initially puzzling to an economist. As we have acknowledge, our ability to the lack answer confidently many of rigorous scrutiny in the examination process. This has resulted in issues raised here questions is likely to increase as the recent explosion of patents granted open source movement itself grows and potentially creates a "patent thicket" that hinders future innovationevolves. I investigate At the question same time, it is heartening to us how much of whether the litigation process open source activities can be relied on understood within existing economic frameworks, despite the presence of claims to restore competition when an imperfect market outcome is sustained through patents of suspect valuethe contrary. The analysis undertaken in the paper points out labor and industrial organization literatures provide lenses through which the serious lack structure of private incentives to eliminate patents of suspect value through litigation. I also discuss potential measures to restore open source projects, the soundness role of contributors, and the patent systemmovement's ongoing evolution can be viewed.}, year = {2005}, publisher = {American Economic Association}, copyright = {Copyright © 2005 American Economic Association},
discipline={Econ},
research_type={Theory},
industry={General},
thicket_stance={Assumed Pro}, thicket_stance_extract={The lack of rigorous scrutiny Firms can also address these problems in the examination processnon- in conjunction with the recent explosion of patents grantedopen- has led to a serious concern that the current source ways, such as patent system may impedepools, rather than promotestandard-setting organizations, innovation by creating and self-imposed commitments. In a "patent pool, firms blend their patents with those of other firms. These pools allow users to access a number of firms’ patents simultaneously, thereby avoiding the “patent thicket"(Shapiro 2001; Gallini 2002; Bessen 2003).”}, thicket_def={refs shapiro#A, Overlapping Patents, Diversely-Held, galliniUnspecified Blocking Mechanism, bessenDeliberate Royalty Stacking}, thicket_def_extract={The lack of rigorous scrutiny in the examination process- in conjunction with Second, open source avoids the recent explosion problem of patents granted- has led to a serious concern that the current patent system may impede“patent thicket” when multiple firms have overlapping intellectual property rights, rather than promote, innovation by creating and at least one party attempts to extract a "patent thicket"(Shapiro 2001; Gallini 2002; Bessen 2003)high fee for its particular contribution.}, tags={patents of suspect value, litigation issues, substitute patents#Private Mechanisms, exclusive rights to first invalidatorOpen Source}, filename={Choi Lerner Tirole (2005) - Live The Economics Of Technology Sharing Open Source And Let Live A Tale Of Weak PatentsBeyond.pdf}
}
@techreportarticle{cohen2000protectinglerner2003structure, title={Protecting their Intellectual Assets: Appropriability Conditions The Structure and Why US Manufacturing Firms Performance of Patent (or Not)Pools: Empirical Evidence}, author={CohenLerner, W.MJ. and NelsonStrojwas, R.RM. and WalshTirole, J.P.}, yearjournal={2000Working paper}, institutionyear={National Bureau of Economic Research2003}, abstract={Based on a survey questionnaire administered to 1478 R&D labs in the U.S. manufacturing sector in 1994, we find that firms typically protect the profits due to invention with a range of mechanisms, including patents, secrecy, lead time advantages and the use of marketing complementary marketing and manufacturing capabilities Of these mechanisms, however, patents tend to be the least emphasized by firms in the majority of manufacturing industries, and secrecy and lead time tend to be emphasized most heavily.A comparison of our results with the earlier survey findings of Levin et al.[1987]sugest that patents may be relied upon somewhat more heavily by larger firms now than in the early 1980s.For the protection of product innovations, secrecy now appears to be much more heavily employed across most industries than previously Our results on the motives to patent indicate that firms patent for reasons that often extend beyond directly profiting from a patented innovation through either its comercialization or licensing.In addition to the prevention of copying,the most prominent motives for patenting include the prevention of rivals from patenting related inventions (i.e.,"patent blocking"),the use of patents in negotiations and the prevention of suits. We find that firms commonly patent for different reasons in "discrete" product industries, such as chemicals, versus "complex" product industries, such as telecommunications equipment or semiconductors. In the former, firms appear to use their patents commonly to block the development of substitutes by rivals, and in the later, firms are much more likely to use patents to force rivals into negotiations.},
discipline={Econ},
research_type={Empirical},
industry={General, Manufacturing}, thicket_stance={NeutralAssumed Pro}, thicket_stance_extract={Our data do not show the degree to which patent portfolio races distort Numerous commentators have suggested that the nature proliferation of R&D incentives or lead these awards has had socially detrimental consequences: overlapping intellectual property rights may make it difficult for inventors to socially wasteful outcomes, or whether such portfolio races or patent thickets actually block entrycommercialize new innovations. 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(Gallini [2002] reviews this literature.)}, thicket_def={def30#A, #B, Diversely-Held, Overlapping Patents}, thicket_def_extract={For exampleSecond, open source avoids the building problem of a 30 “patent thicket” when multiple firms have overlapping intellectual property rights, and at least one party attempts to extract a high fee for its particular contribution... A more benign alternative is that firms enter into patent fences can be carried pools to solve the extreme noted by Scherer [1980] and others to “patent thicket” problem: the point presence of creating "patent thickets" overlapping intellectual property holdings that foster broader monopolies than anticipated by make it difficult for third parties to license patent policy which in turn impede entry holdings and the innovation that may accompany itdevelop new technologies.}, tags={patenting strategy#Private Mechanisms, patent portfolio racesPools}, filename={Cohen Nelson Walsh Lerner Strojwas Tirole (20002003) - Protecting Their Intellectual AssetsThe Structure And Performance Of Patent Pools Empirical Evidence.pdf}
}
@incollectiontechreport{cohen2008reallerner2002efficient, title={Real Impediments to Academic Biomedical ResearchEfficient Patent Pools}, author={CohenLerner, W.MJ. and WalshTirole, J.P.}, booktitle={Innovation Policy and the Economy, Volume 8}, pages={1--30}, year={20082002}, publisherinstitution={University National Bureau of Chicago PressEconomic Research}, abstract={Numerous scholars have expressed concern over the growing "privatization The paper builds a tractable model of the scientific commons" represented by the growth in academic patenting. Even before the Bayh-Dole Act and the pervasive patenting of academic science, how evera patent pool, there was an earlier concern over the extent to which the drive for recognition agreement among scientists and competition for priority and associated rewards also limited contributions patent owners to the scientific commons. This suggests the utility of license a more open-ended consideration set of the different factors-not just patenting-that might affect knowledge flows across scientiststheir patents to one another or to third parties. In this paper, we use It Þrst provides a simple economic perspective that emphasizes the benefits necessary and costs of excluding others from research results and analyze the empirical evidence on exclusion in biomedical researchsufficient condition for a patent pool to enhance welfare. We suggest, first, It shows that one might distinguish between legal requiring pool members to be able to independently license patents matters if and practical (i.e.only if the pool is otherwise welfare reducing, lower cost) excludability- and a property that practical excludability, at least in allows the world of academic research, may have little antitrust authorities to use this requirement to do with patentsscreen out unattractive pools. At the same time, however, we suggest that excludability may indeed be The paper then undertakes a real concern for academic and, particularly, biom?dical researchnumber of extensions: cases where patents differ in importance, but to understand where and how it occursasymmetric blocking patterns exist, we need to look beyond patents to consider additional ways in which flows of knowledge and other inputs into research may be restricted (including secrecy and control over materials)where licensors are also licencees. We do find restrictions imposed on also undertake some initial explorations of the flow impact of information and materials across biom?dical researcherspools on innovation. While patents play some roleWe conclude by showing that the analysis has broader applicability than pools, they are not determinative. What appears as it is also relevant to matter are both academic and commercial incentives and effective excludability. Exclusion is rarely associated with the existence a number of a patent in academic settings, but is more readily achieved through secrecy or not sharing research materialsco-marketing arrangements.},
discipline={Econ},
research_type={EmpiricalTheory}, industry={BiomedicalGeneral},
thicket_stance={Weak Pro},
thicket_stance_extract={Even if patents do not stop ongoing researchInnovations in computer hardware, software, the very prospect and biotechnology often build on a number of other innovations owned by a diverse set of owners and as a result ?patent thicket or restricted access may dissuade researchers from choosing particular projects and limit lines " problems - overlapping patent claims that preclude the adoption of attack in that waynew technologies - can be severe.}, thicket_def={Refs Shapiro#A, #B, Diversely-Held, Heller and EisenbergOverlapping Patents}, thicket_def_extract={Although their focus is largely on commercial projectsInnovations in computer hardware, software, Heller and Eisenberg (1998) and Shapiro (2000) suggest that the patenting biotechnology often build on a number of other innovations owned by a broad range diverse set of research tools that researchers need to do their work has spawned owners and as a result ?patent thicket"problems - overlapping patent thickets" claims that may make preclude the acquisition adoption of licenses and other rights too burdensome to permit the pursuit of what should otherwise new technologies - can be scientifically and socially worth while research, (engendering a tragedy of the "anticommons" [Heller and Eisenberg 1998])severe.15}, tags={incenties#Private Mechanisms, sharing of information and knowledgePools, exclusionary behaviorLicensing}, filename={Cohen Walsh Lerner Tirole (20082002) - Real Impediments To Academic Biomedical ResearchEfficient Patent Pools.pdf}
}
year={2008},
publisher={University of Chicago Press}, abstract={The past two decades have seen an explosion of patent awards and litigation across a wide variety of technologies, which numerous commentators have suggested has socially detrimental conseuqences. Patent pools, in which owners of intellectual property share patent rights with each other and third parties, have been proposed as a way in which firms can address this patent-thicket problem. The paper discusses the current regulatory treatment of patent pools and highlights why a more nuanced view than focusing on the extreme cases of perfect complements and perfect substitutes is needed. It also highlights the importance of regulators' stance towward independent licensing, grantback policies, and royalty control. We also present case-study and large-sample empirical evidence.}, discipline={Policy ReportEcon}, research_type={Empirical, Data Study of Large Originator CompaniesTheory}, industry={PharmaceuticalGeneral},
thicket_stance={Pro},
thicket_stance_extract={One commonly applied strategy is filing numerous Many observers have suggested that patent-thicket problems where key patents for the same medicine (forming so called "patent clusters" or "patent are widely held affect many emerging industries. Patent thickets"). Documents gathered in the course of the inquiry confirm that an important objective of this strategy is may lead to delay or block the market entry of generic medicinesthree problems. In this respect the inquiry finds that First, royalty stacking may result: each individual blockbuster medicines are protected by up to 1,300 patents and/or pending patent applications EU-wide and holder may charge a royalty thatseems reasonable when viewed in isolation, as mentioned abovebut together they represent an unreasonable burden. Second, certain patent filings occur very late in the life cycle of even if other firms agree to license their patents at a medicine...In their submissionsmodest rate, both generic and originator companies support the creation of a hold-out problem may result if a single Community patent to amend firm then sets a high license fee for its technology Finally, the current costly and burdensome system consisting very process of arranging the needed licenses may prove to be time consuming. Patent pools thus offer a bundle of national patentsone-stop shop through which these problems can be avoided.}, thicket_def={#Aa-T, Diversely-Held, Royalty Stacking, Transaction Costs}, thicket_def_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. B}, tags={Pharmaceutical Generics and Originators#Private Mechanisms, Patent FilingsPools, Industry AnalysisLicensing, EuropeanGrant-back}, filename={Competition Lerner Tirole (2008) - Pharmaceutical Sector Inquiry Preliminary ReportPublic Policy Toward Patent Pools.pdf}
}
year={2007},
publisher={Wiley Online Library},
abstract={},
discipline={PolicyEcon}, research_type={Theory, Empirical, Industry Data},
industry={General},
thicket_stance={Assumed Pro}, thicket_stance_extract={To meet the challenges Numerous commentators have suggested that the governance proliferation of the European patent system is facing because of the emergence of patent thickets the increasing number of patent applications and patenting awards has had socially detrimental consequences: overlapping intellectual property rights may make it difficult for defensive and strategic reasonsinventors to commercialize new innovations (Gallini, three options were recommended2002 reviews this literature). These were: Patent pools have been proposed by Merges (1999), Priest (1977), Shapiro (i2000) enhancing , and the U.S. Patent and Trademark Office (Clark, Piccolo, Stanton, and Tyson, 2001) as away in which firms can address "patent awareness within the European Parliament; thicket" problems. Indeed, patent pools have become economically significant. Clarkson (ii2003) establishing a European Parliament Standing Committee estimates that sales in 2001 of devices based inwhole or in part on Patentspooled patents were at least $100 billion. Were suggestions to facilitate the formation of patent pools to be adopted, which should be linked with an External Advisory Body composed by expertstheir role might approach that seen in the early days of the twentieth century, practitioners and stakeholders; and when many (iiiif not most) enhancing important manufacturing industries had a patent awareness within the Commission-pooling arrangement.}, thicket_def={def31#A, #B, References Shapiro, Overlapping Patents}, thicket_def_extract={The sectors which are most affected 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 this phenomenonMerges (1999), Priest (1977), at least in the USShapiro (2000), 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 componentsU.S. Patent and Trademark Office (Clark, Piccolo, all susceptible to patent protection. HereStanton, the recent boom in patenting observed by many researchers is largely explained not by a firms’ drive to innovate more than beforeand Tyson, but by a need to accumulate large enough “patent thickets”. These patent thickets work 2001) as a sort of insurance against possible legal actions from other companies. They are way in effect therefore, a kind of defensive manoeuvrewhich firms can address "patent thicket" problems.}, tags={reforming patent thickets in europe#Private Mechanisms, Pools, Licensing, defensive use of thicketsGrantbacks}, filename={Cowin Lerner Tirole Strojwas (2007) - Policy Options For The Improvement Design Of Patent Pools The European Patent SystemDeterminants Of Licensing Rules.pdf}
}
@articletechreport{dhar20071llanes2009anticommons, title={The Impact Anticommons and Optimal Patent Policy in a Model of Intellectual Property Rights in the Plant and Seed IndustrySequential Innovation}, author={DharLlanes, TG. and FoltzTrento, JS.}, journal={Agricultural Biotechnolgy and Intellectual Property Protection: Seeds of Change}, pages={161}, year={20072009}, publisherabstract={CABI}When innovation is sequential, abstract={This work uses changes in intellectual property rights regimes for plants as the development of new products depends on the access to previous discoveries. As a way to identify consequence the patent system affects both the value revenues and the cost to industries and society of the different components of property rights: exclusivity, research exemptions, and revelation of research outcomesinnovator. A simple We construct a model is described that can account for these differences of sequential innovation in which an innovator uses n patented inputs in company choice of intellectual property versus keeping trade secrets. The data used include observations on multiple crop types over R&D to invent a span of 20+ years across 3 different intellectual property rights regimesnew product. Differences in We ask three questions: (i) what is the replicability net effect of crop types patents on innovation as technologies become more complex (n increases)? (ii) are shown patent pools welfare enhancing? (iii) what is the optimal response of patent policy as technological complexity increases? We find that the answers to cause intellectual property rights to have diverse sets these questions depend on the degree of incentives for complementarity and substitutability between the inputs used in research and property rights claims.},
discipline={Econ},
research_type={Theory, Empirical}, industry={AgricultureGeneral}, thicket_stance={Weak ProNeutral}, thicket_stance_extract={A 2002 court ruling When the inputs are complements, the profitability of the innovation is decreasing in Madey vthe 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. Duke University greatly contracts This paper therefore gives a formal treatment of the research exemption rules on US patents especially for universities making 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 patent thicket potentially more case, when n -> infinity, the cost of gathering all the inputs for the innovation is always too high from a problemsocial point of view and thus the probability of innovation is suboptimal.}, thicket_def={#A, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Hold-up}, thicket_def_extract={A As the number of observers of patentinginputs needed in research increases, particularly in the biological sciences, have suggested that patenting rules and overlapping claims have generated innovator faces a "patent thicket" that has impeded innovation and made is threatened by the R&D process more costly (Raipossibility of hold-up, 2001; Rai, 1999). Rai (2001) for example, argues namely the risk that broad patents especially on upstream platform technologies represent a threat to competition and useful innovation is not developed because of lack of agreement with the patent holders. This problem has been dubbed the cumulative process tragedy of innovation in the biopharmaceutical industryanticommons (Heller 1998, Heller and Eisenberg 1998).}, tags={firm strategy#Private Mechanisms, utility patentsPools, revelation lossLicensing, IPR, trade secretsSequential Innovation}, filename={Dhar Foltz Llanes Trento (20072009) - The Impact Anticommons And Optimal Patent Policy In A Model Of Intellectual Property Rights In The Plant And Seed IndustrySequential Innovation.pdf}
}
@article{d2009poolslin2001research, title={PoolsResearch Versus Development: Patent Pooling, Thickets Innovation and Open Source NanotechnologyStandardization in the Software Industry}, author={Lin, D'Silva, J.}, journal={European Intellectual Property ReviewJ. Marshall Rev. Intell. Prop. L.}, volume={31}, number={61}, pages={300274--306309}, year={20092001}, abstract={Discusses how Despite the impressive pace of modern invention, a certain “patent thicket” effect that may be impeding what has become an increasingly difficult road to promote the development 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 nanotechnology by overcoming acquiring licenses (e.g. hold-out problems with ) for all such patents has the potential to stifle the patent systemdevelopment and commercialization of these new technologies. Considers how As such, patent thickets and patent trolls may discourage innovative workpooling, 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. Describes Patent pooling has the advantages potential to reduce the level of licensing patents by means research and invention in new technologies that can compete with an incumbent standard. Recent patent jurisprudence and lenient federal antitrust agency of a recent patent pool. Examines pooling proposals seem to what extent inventors can benefit from create an environment that encourages the experience resurgence of the open-source software movementpatent pooling.},
discipline={Law},
research_type={DiscussionTheory}, industry={NanotechnologySoftware}, thicket_stance={Weak Assumed Pro}, thicket_stance_extract={In most cases this will deter many smaller startups and research centres from attempting to traverse 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. Also broad1 Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, overlapping and conflicting thickets as a result, are likely often subject to lead 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 lengthy stifle the development and costly patent battlescommercialization of these new technologies.}, thicket_def={def30#A-T, References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={When multiple organisations each own individual patents that are collectively necessary for a particular technologyDespite the impressive pace of modern invention, their competing intellectual property rights form 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. (cites: Gavin Clarkson 1 Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and David DeKorteas 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 Problem difficulties of Patent Thickets in Convergent Technologies" [2006] Ann. Nacquiring licenses (e.Yg. Acad. Sci. 1093, 181hold-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologies.)}, tags={patent pools#Private Mechanisms, Standards, SSOs, Pools, open sourcingSequential Innovation}, filename={DSilva Lin (20092001) - Pools Thickets And Open Source NanotechnologyResearch Versus Development.pdf}
}
}
@article{eisenstein2010upliu2008internal, title={Up for GrabsInternal Sequential Innovations: How does Interrelatedness Affect Patent Renewal?}, author={EisensteinLiu, MK. and Arthurs, J. and Cullen, J. and Alexander, R.}, journal={Nature BiotechnologyResearch Policy}, volume={2837}, number={65}, pages={544946--546953}, year={2010}, publisher={Nature Publishing Group2008}, abstract={As recently as three months ago, it still all seemed so simple. Shinya Yamanaka, whose team at the University The value of Kyoto in Japan is generally acknowledged by the patented innovations has attracted substantial research community as the first to successfully reprogram differentiated cells into iPS cells1attention, was also especially in the sole context of patent holder for the technologyrenewal. But as with any other patent land grabHowever, iPS cell intellectual property (IP) is beginning to look less and less like research often assumes that a one-horse racefirm’s patented innovations are independent from each other. Two other recently issued patents in the United States We draw upon evolutionary economics and United Kingdom (Table 1), each awarded to suggest that some of a different inventor with a potentially strong claim to priority, now stand alongside Yamanaka’s patentfirm’s patents share important genealogical relationships, which was exclusively issued in Japanwe refer to as internal sequential innovations. With this newly tangled IP landscape, questions We propose internal sequential innovations are arising about the possible emergence of a patent thicket. On the other hand, early signs suggest that the iPS cell marketplace may evolve more valuable and therefore more likely to provide ample room for many different contendersbe renewed than stand-alone innovations. Whereas for now companies are focused primarily on iPS cell cultivation as We examine our hypotheses from a means for deriving clinically relevant mature cells, companies may take advantage dataset of recent data on transdifferentiation that suggest that this pluripotent midpoint may even be dispensable in US pharmaceutical and biotechnology patents. The results confirm our hypotheses at both the patent and the future2firm levels.}, discipline={BiologyEcon}, research_type={DiscussionEmpirical}, industry={Stem CellsPharma, BiologyBiotech}, thicket_stance={Weak ProAssumed Anti}, thicket_stance_extract={As recently as three months agoWith 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}, thicket_def={#B1, References Shapiro, Overlapping Patents, it still all seemed so simple. Shinya YamanakaCummulative Invention}, whose team at thicket_def_extract={With the University power of Kyoto the intellectual regime, internal sequential innovations offer a larger thicket of protection that can define the underlying technologies in Japan a set of overlapping patents. That is generally acknowledged by the research community as the first to successfully reprogram differentiated cells into iPS cells1, was also a sequence of patents revolving around the sole patent holder for same technological trajectory can define the technology. But as with any other patent land grab, iPS cell intellectual property (IP) is beginning to look less more precisely and less like a one-horse raceprotect it with an enlarged degree of coverage. Two other recently issued patents The holder of such patented innovations can thereafter exclude competitors from the collective scope of the claims laid out in all of the United States sequential patents (Wagner and United Kingdom (Table 1Parchomovsky, 2005). In contrast, 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 -alone innovations are arising about more likely to be invented around and the possible emergence underlying intellectual property has a higher hazard of a patent thicketbeing appropriated (Shapiro, 2000).}, thicket_deftags={}#Firm Strategy, Value from Position/Portfolio, Defensive/Offensive Patenting, #Private Mechanisms, thicket_def_extract={}Regime Selection, tags={iPS industrySequential Innovation, intercountry patents#IPR Reform, international applicationsRenewals}, filename={Eisenstein Liu (20102008) - Up For GrabsInternal Sequential Innovations.pdf}
}
@article{feldman2004openmacdonald2004means, title={The Open Source Biotechnology MovementWhen Means Become Ends: Is It Considering the Impact of Patent Misuse?Strategy on Innovation}, author={FeldmanMacdonald, RS.}, journal={Minnesota Journal of LawInformation Economics and Policy}, volume={16}, Science \& Technology number={1}, volumepages={6135--158},
year={2004},
industry={General},
thicket_stance={Weak Pro}, thicket_stance_extract={The second pharmaceutical industry has been instrumental in creating a patent characteristic patent trolls should favor is a high cost of substituting system for the underlying invention in products. This substitution cost increases with pharmaceutical industry, appropriate to the difficulty orderly innovation of inventing around the patent, which in turn is high if the patent density and complexity that industry. Acceptance of the relevant technology field innovation myth has meant that this logic is highrarely challenged. This means that Thus, for instance, development may relate to many patents exist that have a high degree , not just one (Heller and Eisenberg, 1998). The costs of navigating through mazes of overlap between them and with the overlapping patent rights – through patent under considerationthickets – are likely to be considerable (Shapiro, 2001), so that finding a gap for a non-patented substitutive technology is difficultand are likely to be an obstacle to innovation.}, thicket_def={Refs #A-T, #B-T, References Shapiro, Overlapping Patents}, thicket_def_extract={This means that many patents exist that have a high degree The costs of navigating through mazes 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 overlapping patent is part of a rights – through patent thicket thickets – are likely to be considerable (Shapiro, 2001)...}, tags={patent trolls#Firm Strategy, patent qualityValue from Position/Portfolio, licensingDefensive/Offensive Patenting, business model#IPR Reform}, filename={Fischer Henkel Macdonald (20112004) - Patent Trolls On Markets For TechnologyWhen Means Become Ends.pdf}
}
@article{galasso2007broadmallo2008patent, title={Broad crossPatent-license agreements and persuasive patent litigationrelated Barriers to Market Entry for Generic Medicines in the European Union: theory A Review of Weaknesses in the Current European Patent System and evidence from the semiconductor industryTheir Impact on Market Access of Generic Medicines}, author={GalassoMallo, L. and Roox, K. and Pike, J. and Brown, A. and Becker, S. and Thaler, G.}, journal={LSE STICERD Research Paper No. EI45Journal of Generic Medicines: The Business Journal for the Generic Medicines Sector}, volume={5}, number={4}, pages={255--280}, year={20072008}, publisher={SAGE Publications}, abstract={In many industries broad cross-license agreements Patents are considered a useful method effective tools for promoting innovation in the pharmaceutical sector. Originator companies should be able to obtain freedom 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 operate a diminishing number of newly registered products and contracting product pipelines, originator companies may be tempted to avoid unjustly prolong the patent litigationmonopoly of existing products. In this paper I study The result is known as the ‘ evergreening ’ of a basic patent with the previously neglected dynamic tradehelp of follow-on patents to keep generic competitors off between litigating the market. These follow-on patents are often weak or trivial and cross-licensing , upon careful examination, it is clear that firms face to protect their intellectual propertythey 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. I present a model An important way of reducing the incidence of bargaining with learning in which firms’ decisions poor quality follow-on patents is to litigate or crosslicense depend on their investments remedy certain structural defi ciencies and weaknesses in technology specific assetsthe current examination procedure. In particular Priority must be given to ensuring that the European Patent Offi ce (EPO) has the resources it needs to continue to improve the model predicts that where firms’ sunk costs are higherquality of patent examiners, along with their incentive to litigate training and delay a cross-license agreement is lower. In additionremuneration, and to increase the bargaining game shows how firms with intermediate values number of asset specificity tend more experienced senior examiners in order to engage in inefficient "persuasive litigation"give every patent application the deliberate, expert review it deserves. Using This would lead to a novel dataset on more stringent application of the patentability requirements and fewer trivial patents. Applicants should be more rigorously required to provide patent applications of the US semiconductor industry I obtain empirical results consistent with those suggested highest quality accompanied by all relevant information at the start of the modelexamination process. Combining model intuition with some empirical figuresSimilarly, I evaluate possible effects they should be under obligation to disclose all information known to them that is material to the patentability of the currently debated patent litigation reformtheir invention.}Furthermore, discipline={Econ}better third-party participation would also help to avoid inappropriate follow-on patents from being granted. When such patents are granted, research_type={Theory, Empirical, Econometric Model}, industry={General, Semiconductors}, thicket_stance={Assumed Pro}, thicket_stance_extract={In particular, Shapiro (2001) has argued that a "patent thicket" has appeared that renders it difficult an immediate review should be possible to commercialize a new technology. In some industries avoid the number assertion of intellectual property rights a firm requires ultimately invalid patents to produce 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 new product is so large, common and single European patent application and their ownership granting system by the EPO. A European patent is so dispersednot a unitary patent, that it is quite easy to unintentionally infringe on but essentially a patentbundle of national patents. In this environment As a there isresult, therefore, a hold-up problem: when questions of patent infringement and validity are governed by various national laws and are handled by the manufacturer starts selling its product national courts operating under different procedural rules. This purely national litigation system results in a patentee might show up threatening to shut production down unless it is paid complex arena of multiple patent litigation involving high royalties.}costs, forum shopping and diverging, thicket_def={refs shapiro}even contradictory, thicket_def_extract={During court decisions. The lack of a central judiciary composed of experienced patent judges is regarded as one of the past few years various scholars1 and industry representatives have drawn attention to specific inefficiencies generated by major defects in the current patent system in several industries. In particular, Shapiro (2001) has argued that An effective solution would be the creation of a "central European patent thicket" has appeared court that renders it difficult to commercialize would deal with questions of invalidity and infringement at a new technology}, tags={Crosspan-licensing}European level. Until this has been achieved, filename={Galasso (2007) - Broad Cross License Agreements And Persuasive Patent Litigationspecialised national patent courts should be created with technically skilled judges with powers to reach a decision within an acceptable timeframe.pdf} } @article{gaule2006towardsFurthermore, title={Towards Patent Pools in Biotechnology?}, author={Gaul{\'e}, Pthe 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, journal={Innovation Strategy Today}measures should be taken to ensure that originator companies do not use other means to unjustly prolong their monopoly by, volume={2}for example, number={2}introducing a system of patent linkage, pages={123--143}obtaining improperly granted SPCs, year={2006}deploying inaccurate marketing campaigns for promoting ‘ new ’ products with no substantial added therapeutic value as innovative products, abstract={etc.}, discipline={Management, LawGeneral Science},
research_type={Discussion},
industry={BiotechnologyPharma},
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 Certain structural deficiencies and (2) that negotiating access with different patent owners is prohibitively difficult and costly. On weaknesses in the first pointcurrent examination procedure, however, result in the number grant of biotechnology patents has certainly increased dramatically over the last decadeof variable quality, 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 giving a patent owner / originator company facing expiry of patents relevant to a candidate basic 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 patent the number was zero.” Enough anecdotal evidence exists, however, opportunity to suggest that the fragmentation of rights in biotechnology create what is sometimes known as a serious concern‘patent thicket’ (see below). The most obvious structural issues are discussed below.}, thicket_def={Def32#C1, Single Firm, Evergreening, Dubious Patents, Unspecified Blocking Mechanism}, thicket_def_extract={Originators file numerous follow-on patent applications covering a drug in the hope that at least one of them will be granted and survive a litigation challenge. The IP rights situation described above was arguably consequence of this is often an extensive thicket or cloud of patents around a classical case drug, the various parts of that cloud each typically... A good example of both an improperly granted follow-on patent and a patent thicket is found in relation to the product perindopril erbumine, discussed in Annex A... To prevent the creation of patent thickets and reduce the incidence of poor followon patents: (a) improve the quality of patents as outlined above and apply a rigorous assessment of patentability requirements; (b) prevent the fi ling of divisional patents that are essentially identical to the parent application; (c) require that patent claims with fragmented IP rights respect to the pharmacokinetic effect of administering a particular drug be directly linked to the formulation used to achieve that effect; (d) limit the scope of second and further medical use patents; and uncertainty about technology ownership(e) grant patents only to genuine incremental innovation and not to simple changes in chemistry or formulation.}, tags={patent pools#Firm Strategy, Evergreening, #IPR Reform, Review of Patent Validity, cross-licensingStricter Patenting Requirements}, filename={Gaule Mallo (20062008) - Towards Patent Pools Related Barriers To Market Entry For Generic Medicines In BiotechnologyThe European Union.pdf}
}
@article{gilbert2004antitrustmeniere2008patent, title={Antitrust for Patent Pools: A Century of Policy EvolutionLaw and Complementary Innovations}, author={GilbertM{\'e}ni{\`e}re, R.JY.}, journal={Stanford Technology Law European Economic Review}, volume={200452}, number={7}, pages={1125--1139}, year={20042008}, abstract={The patent system was initially designed to provide incentives to develop stand-alone innovations in fi?elds such as mechanics, chemicals or pharmaceuticals. Its application is therefore problematical in more recent ?elds such as biotechnology and ICT industries, where innovation patterns are different. A well-known problem concerns cumulative innovations. Patent law must then trade off the rights granted to upstream patent owners with the incentives to develop subsequent innovations (Scotchmer, 1991; Donoghue, Scotchmer and Thisse, 1998; Denicolò, 2000). Another issue concerns complementary innovations, which are the focus of the paper. 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). In biotechnology, this is the case of therapeutic proteins or genetic diagnostic tests that require the use of multiple patented gene fragments (Heller & Eisenberg, 1998). It is also very frequent in ICT industries such as electronics, computer hardware and software, where ?firms have to navigate "patent thickets" (Shapiro, 2001). Shapiro (2001) reports, for example, that in the semi-conductor industry ?rms receive ?thousands of patents each year and manufacturers can potentially infringe on hundreds of patents with a single product". The situation is similar in the U.S. software industry, where there are ?potentially dozens or hundreds of patents covering individual components of a product?(FTC, 2003). I study the problem of the production of complementary innovations in a model of dynamic R&D competition between two ?firms, and argue that in some cases complementary innovations should not be patentable as such, but bundled with other innovations prior to patenting. To do so I consider two complementary innovations and examine whether they should be patented separately or as a bundle. This approach echoes several papers on cumulative innovations where patentability requirements are de?ned as the need to develop two or more successive innovations before obtaining a patent (Scotchmer and Green, 1990; Hunt, 1995; O?Donoghue, Scotchmer and Thisse, 1998; Denicolò, 2000). As regards complementary innovations, the optimal patenting rule depends on a trade-off between the pro?fit loss due to scattered complementary patents, and the possible bene?fit of patent disclosure. The scattering of complementary patents between different owners creates a double marginalization issue. Since each patentee behaves as a monopolist, the Cournot (1838) theorem predicts that prices do not maximize the ?rms?pro?ts (Shapiro, 2001; Lerner & Tirole, 2005)1 . The requirement that complementary innovations be bundled prior to patenting can be a way to prevent this pro?t loss. However, small innovations are not disclosed when innovations have to be bundled prior to patenting (Scotchmer and Green, 1990). As a result, ?firms lose the possibility to quit the race after a ?first innovation has been patented, which leads to R&D cost duplications. I show that patent disclosure has a positive social effect, although it does not permit a fully effi cient coordination between ?firms. In this context, bundling innovations prior to patenting can be more effi cient if innovations can be devel- oped quickly. As I argue in the Conclusion, this condition is consistent with the legal de?nition of the "inventive step" patentability requirement. The paper is structured in six sections. First, the model is introduced in Section 2. Section 3 then considers the case in which innovations can be patented separately, while Section 4 focuses on the case in which they must be bundled prior to patenting. Section 5 compares the social outcomes of the two require- ments. Finally, Section 6 concludes and discusses the policy implications of the model.}, discipline={LawEcon}, research_type={Discussion, EquationsTheory}, industry={GeneralICT, Biotech}, 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)}, thicket_def={#A-T, References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={It is also very frequent in ICT industries such as electronics, computer hardware and software, where firms have to navigate "patent thickets" (Shapiro, 2001)...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... 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... The scattering of complementary patents between different owners creates a double marginalization issue.}, tags={AntitrustComplements, patent pools#IPR Reform, competitionStricter Patenting Requirements}, filename={Gilbert Meniere (20042008) - Antitrust For Patent Pools A Century Of Policy EvolutionLaw And Complementary Innovations.pdf}
}
abstract={},
discipline={LawEcon},
research_type={Discussion},
industry={General},
thicket_stance={Weak Pro}, thicket_stance_extract={Patent thickets are common In addition to many high-technology industries in which the manufacturecosts of individual patents, useresearchers have to contend with “patent thickets.” That is, complex technologies, or sale such as biomedical research tools,embody a number of a device or process may require rights to hundreds technological inputs, many of patentswhich are patented.7 Overlapping A different company, in turn, could own each patent . Negotiating these thickets raises the cost of securing rights raise numerous potential economic problems. Transaction costs Weaker patent standards encourage patent proliferation and an enlargement of licensing can be high because licensees must identifythe thickets for research in areas such as biotechnology, search outagricultural chemicals, and negotiate with numerous separate licensorspharmaceuticals... Litigation risks can be high because an incomplete portfolio That suggests patent thickets and transactions costs may slow down the diffusion of patent licenses can expose a firm to potentially large infringement damagesscientific research.}, thicket_def={Refs Shapiro#A, Complementary Inputs, Diversely-Held}, thicket_def_extract={A In addition to the costs of individual patents, researchers have to contend with “patent thicketthickets.” That is, complex technologies, such as biomedical research tools,” in which many independent patent holders have rights that cover embody a technologynumber of technological inputs, is one example many of the anticommonswhich are patented.}, tags={#IPR Reform, Issues of Patent PoolsValidity, Compulsory Licensing}, filename={Gilbert Maskus (20102006) - Ties That Bind Policies To Promote Good Reforming Us Patent PoolsPolicy Getting The Incentives Right.pdf}
}
@article{goozner2006innovationmasur2010costly, title={Innovation in Biomedicine: Can Stem Cell Research Lead the Way to Affordability?Costly Screens and Patent Examination}, author={GooznerMasur, MJ.S.}, journal={PLoS medicineJournal of Legal Analysis}, volume={32}, number={52}, pages={e126687--734}, year={20062010}, publisher={Public Library of ScienceOxford 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.}, discipline={BiologyLaw}, research_type={Policy, Discussion, Industry Statistics}, industry={Biology, Stem CellGeneral},
thicket_stance={Assumed Pro},
thicket_stance_extract={While many researchersThird, especially in academiathere are patents of low private value and low (or negative) social value; this class of patents includes both discarded, fi nd ways around unenforced patents that increase the search costs and risk imposed on commercial firms—the "patent restrictionsthicket", and many companies have no trouble executing license agreementsin popular parlance (Shapiro 2001)—and worthless, there are cases where “patent thickets” have discouraged other researchers from pursuing similar or subsequent lines of inquirylargely unenforceable patents usable only for extracting nuisance settlements (see Section 2.2.).}, thicket_def={refs heller eisenberg#C1, #D-S, References Shapiro, refs eisenbergDubious Patents}, thicket_def_extract={While many researchers, especially in academia, fi nd ways around patent restrictions, and many companies have no trouble executing license agreementsThird, there are cases where “patent thickets” have discouraged other researchers from pursuing similar patents of low private value and low (or subsequent lines negative) social value; this class of inquirypatents includes both discarded, unenforced patents that increase the search costs and risk imposed on commercial firms—the ‘‘patent thicket,’’ in popular parlance (Shapiro 2001)...}, tags={Incentives#IPR Reform, Patent Proliferation, License Agreements, Patent Pool, Open SourceReview of Patnet Quality, Infrastructure Changes}, filename={Goozner Masur (20062010) - Innovation In BiomedicineCostly Screens And Patent Examination.pdf}
}
@article{hemphill2003preemptivemerges2006introductory, title={Preemptive Patenting, Human Genomics, and the US Biotechnology Sector: Balancing Intellectual Property Rights with Societal WelfareIntroductory Note to Brief of Amicus Curiae in eBay v. MercExchange}, author={HemphillMerges, TR.AP.}, journal={Technology in SocietyBerkeley Tech. LJ}, volume={25}, number={321}, pages={337997--3491016}, year={2003}, publisher={Elsevier2006}, 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.}, discipline={PolicyLaw},
research_type={Discussion},
industry={BiotechnologyGeneral},
thicket_stance={Pro},
thicket_stance_extract={To forestall imitative activity As noted above, the existence of the patent thicket and strengthen patent rights, firms often attempt the problem of low quality patents make it especially easy for trolls to create a ‘patent thicket,’ i.e. obtaining acquire patents not just on that arguably cover one central product of the hundreds or process, but on a host thousands of related products or processes [11]incorporated in a single high technology product. Firms that try to compete The troll waits until a company with deep pockets makes irreversible investments in the inventing firm will find their attempts to duplicate arguably infringing technology. The troll may even revise the terms of the central product patent (through a patent "reissuance" or process blocked by "continuation") in light of the inventing firm’s grip on alternative technologiestarget's investment in order to strengthen the infringement claim. Many The troll then uses the threat of an injunction shutting down production to demand a significant share of the firm’s patents on related products or processes may never be used or licensed; such ‘sleeping patents’ are held only to raise total profit associated with the costs product. This gamesmanship results in no social benefit and a great deal of entry or imitation by potential rivalsharm.}, thicket_def={def33#A, #C1, References Shapiro, Complementary Inputs, Diversely-Held, Dubious Patents}, thicket_def_extract={To forestall imitative activity As the Federal Trade Commission recently explained, innovation in the computer and Internet industry is often incremental and strengthen patent rightscumulative, firms and the pace of change is rapid.4 The net result is that each marketable product in this industry may incorporate--often attempt to create in an incidental, tangential, and sometimes unintentional way-hundreds or even thousands of patented processes. This is commonly described as a ‘patent "patent thicket": "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology." Carl Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard-Setting,’ iin INNOVATION POLICY AND THE ECONOMY 119, 120-21 (Adam Jaffee et al.eeds. obtaining patents not just on one central product or process, but on a host of related products or processes [11].2001); see also To Promote Innovation 2:27-31, 3:2, 34-35, 52-53}, tags={preemptive patenting, consumer welfare, international affairs#Private Mechanisms, strategic valueNPEs}, filename={Hemphill Merges (20032006) - Preemptive Patenting Human Genomics And The Us Biotechnology SectorIntroductory Note To Brief Of Amicus Curiae In Ebay V MercExchange.pdf}
}
}
@article{holman2006clearingmeurer2002business, title={Clearing a path through the patent thicketBusiness Method Patents and Patent Floods}, author={HolmanMeurer, CM.J.}, journal={CellWash. UJL \& Pol'y}, volume={125}, number={48}, pages={629309--633342}, year={2006}, publisher={Elsevier2002}, 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},
research_type={Discussion, Commentary}, industry={General, Research}, thicket_stance={Weakly AntiWeak Pro}, thicket_stance_extract={Although upstream patents have been widely criticizedFurthermore, and there are a number thicket 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 may stultify development of technology because of the cost of securing patent licenses from the academic sectorlarge numbers of patent owners.}, thicket_def={Refs heller/eisenberg#A, References Shapiro, Complementary Inputs, Diversely-Held, rai/eisenbergTransaction Costs}, thicket_def_extract={Upstream Of particular concern, reduced patent quality increases uncertainty about the scope and validity of patents have been criticized on a number and increases the frequency of patent litigation. The fragility of the many start-ups in new markets makes them vulnerable to strategic patent litigation. The threat of countspatent litigation may deter entry or induce exit from the market. For exampleFurthermore, it has been proposed that a thicket of patents may stultify development of technology because of the proliferation cost of patents covering research tools has resulted in securing patent licenses from the large numbers of patent owners... The other anticompetitive threat is a pool or cross-licensing agreement justified as a “patent thicket,” rendering it virtually impossible way to conduct biomedical research without inadvertently infringing upon cut through a host of conflicting patent claims (Heller thicket and Eisenberg, 1998; Rai and Eisenberg, 2002)economize on transaction costs might actually serve merely to orchestrate collusion on prices... }, tags={patents of dubious quality#Private Mechanisms, Pools, #Firm Strategy, research usePatent Floods, public domainDefensive/Offensive Patenting}, filename={Holman Meurer (20062002) - Clearing A Path Through The Business Method Patents And Patent ThicketFloods.pdf}
}
@articlebook{holman2008trendsmuris2001competition, title={Trends in Human Gene Patent LitigationCompetition and Intellectual Property Policy: The Way Ahead}, author={HolmanMuris, CT.MJ.}, journal={Science}, volume={322}, number={5899}, pages={198--199}, year={20082001}, publisher={American Association for the Advancement of ScienceUS FTC},
abstract={},
discipline={PolicyReport}, research_type={Commentary, Discussion, Industry Statistics}, industry={Biotechnology, GeneticsGeneral}, thicket_stance={Weak 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 patentMoreover, the antithesis of even if there were a "patent thicket scenario (14). Some " problem, others state that firms 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 range of microarray technologymeans to overcome these obstacles, although microarray companies have experienced substantial including cross-licenses and patent litigation involving nongene patents since the mid-1990spooling.}, thicket_def={refs heller eiseneberg#A-S, Quotes Shapiro, bartonReferences Shapiro}, thicket_def_extract={Some have postulated According to Professor Carl Shapiro, a "patent thicket" has formed, which he describes as "a dense web of overlapping intellectual property rights that a “thicket” of patents will impede basic biomedical research company must hack its way through in order to actually commercialize new technology." Firms in certain industries are said to fear that it is "all too easy" to infringe another patent accidentally and will stifle development and utilization of technologies thereby risk liability. A On the other hand, some observers believe that innovation currently is not hindered.'"' Moreover, even if there were a "patent thicket" problem, others state that involve the use firms have found a range of multiple genetic sequences; DNA microarrays are a prime example (5means to overcome these obstacles, 6)including cross-licenses and patent pooling.-}, tags={Gene patent litigation#IPR Reform, Balance with Anti-trust, Balance with Anti-trust, Duration Limits, #Private Mechanisms, frequency of litigationSSOs}, filename={Holman Muris (20082001) - Trends In Human Gene Patent LitigationCompetition And Intellectual Property Policy The Way Ahead.pdf}
}
@article{holman2012debunkingnapoleon2009impact, title={Debunking the Myth that Whole-Genome Sequencing Infringes Thousands Impact of Gene PatentsGlobal Patent and Regulatory Reform on Patent Strategies for Biotechnology}, author={HolmanNapoleon, CV.MJ.}, journal={Nature biotechnologyPitt. J. Tech. L. \& Pol'y}, volume={30}, number={39}, pages={2401--24431}, year={2012}, publisher={Nature Publishing Group2009},
abstract={},
discipline={Law},
research_type={Commentary, Discussion}, industry={Biology, GeneticsBiotech}, thicket_stance={AntiWeak Pro}, thicket_stance_extract={There is also good reason to think that even the claims most likely to be infringed, reciting short fragments Pharmaceutical companies typically grow a patent thicket seeking a wide range of genomic DNAchemical variants and analogs, or broadly defined methods of testing for genetic variationsynthesizing the drug, chemical intermediates in this synthesis, different crystal forms, would not necessarily be infringed by all different finished dosage forms and various methods of WGS, particularly next-generation technologies that do not amplify genesuse. A company that provides WGS services, but that leaves the job 62 Obtaining permission from various patent holders for use of analyzing the sequence data for clinically important variations patents can prove to others, would be difficult particularly unlikely if the patent holder’s objective in creating the thicket is to be found liable for infringing any of these gene 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 patentswhich ultimately serves as a drag on innovation and commercialization.}, thicket_def={#A, #B1, #D, Quotes Shapiro, References Shapiro, Complementary Inputs, Diversely-Held, Single Firm, Unspecified Blocking Mechanism}, thicket_def_extract={This pattern, however, has created what some would characterize as a “Patent Thicket”59 in biotechnology. That is, emerging from the overabundance of patent filings and associated activity is “a dense web of overlapping intellectual property rights”60 that requires those seeking to commercialize new technology to obtain licenses from multiple patentees.61 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.}, tags={Whole Genome Sequencing#IPR Reform, InfringementInternational Harmonization, Renewal }, filename={Holman Napoleon (20122009) - Debunking The Myth That Whole Genome Sequencing Infringes Thousands Impact Of Gene PatentsGlobal Patent And Regulatory Reform On Patent Strategies For Biotechnology.pdf}
}
@article{horn2003alternativenielsen2006compulsory, title={Alternative approaches to IP managementCompulsory Patent Licensing: One-stop technology platform licensingIs It a Viable Solution in the United States}, author={HornNielsen, C.M. and Samardzija, LM.R.}, journal={Journal of commercial biotechnologyMich. Telecomm. \& Tech. L. Rev.}, volume={9}, number={213}, pages={119--127509}, year={2003}, publisher={Palgrave Macmillan2006}, abstract={As technology continues to advance at a pioneeringrapid pace, so do the number of patents that cover every aspect of making, using, and selling these innovations. In 1996, one-stop to compound the rapid change of technology platform licensing enterprise, MPEG LA is presented as a template for patent poolingthe U.S. Supreme Court affirmed that business methods are also patentable. By providing Hence in the marketplace with fair current environment, scores of patents, reasonableassigned to many different parties, non- discriminatory access may cover a single electronic device or software—making it increasingly impossible to manufacture an electronic device without receiving a portfolio of worldwide essential patents under cease and desist letter or other notice from a patentee demanding a single licencelarge royalty or threatening an injunction. Companies, this example of a one-stop particularly those in the high technology platform licensing programme enables widespread implementationsector, interoperability and use have been asserting for some time now that they are under constant threat of fundamental broad-based technologies covered by many patents owned by many patent ownerslawsuits that threaten to shut them down. This paper will: (1) present observations from MPEG LA’s unique experience and perspective including As a description of the necessary elements and principles on which such efforts are basedresult, what works and why; and (2) describe efforts to apply this innovative licensing model numerous radical changes to the biotechnology U.S. Patent Act and pharmaceutical industries within patent practice before the larger context U.S. Patent & Trademark Office have been proposed. Certain proposed changes, however, are meeting with resistance because of a reliance on long term patent protection and exclusivity of historical patent pooling as rights by different industries. Notwithstanding, certain foreign governments have already enacted provisions making it possible to obtain a compulsory patent license in the event that a solution patentee is not practicing his invention or is simply refusing to license the rights to biotechnology bottleneckshis invention for a reasonable royalty fee.},
discipline={Law},
research_type={Discussion},
industry={Technology, Biotechnology, PharmaceuticalGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={In addition, there has been enormous growth in Many of the patents overlap and block the number use of issued other patents containing progressively narrower claims. Therefore, licences under multiple patents owned by multiple patent owners are required. In the absence thereby creating a “patent thicket”—a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.”3 It is hypothesized that patent pool, the transaction thickets increase transactional costs required to identify the blocking patents and conclude negotiations for a licence under each of them (assuming the patent owners are even willing stifle innovation by making it more expensive and difficult to enter into licence negotiations), bring new developments 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 shortmarket.}, thicket_def={refs shapiro#A-T, Quotes Shapiro, References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={ThereforeIn some industries, if particularly the ‘thicket’2 semiconductor industry, access to hundreds of essential IP patents may be necessary in order to produce a single commercial product. Many of the patents overlap and block the use of other patents, thereby creating a “patent thicket”—a “dense web of overlapping intellectual property rights underlying their use cannot that a company must hack its way through in order to actually commercialize new technology.”3 It is hypothesized that patent thickets increase transactional costs and stifle innovation by making it more expensive and difficult to bring new developments to the market... the ability to bring a product to market in the presence of a patent thicket and the stacking royalties must separately be accessed under reasonable terms and conditions addressed... Closely related is the concept of patent thickets. A single product may include many different, individually patented components.... The patent thicket is best understood in the semiconductor industry where any given microchip may infringe a number of patents, including the process manufacturing patents used to produce the chip. Here, patents are complementary because different inventors independently have patented different components of the larger invention. This is unlike blocking patents (eg costotherwise referred to as improvement patents) applied evenly to all similarly situated competitors, resulting from the best incremental process of standards often go unusedinnovation.}, tags={technology platform licensing#Private Mechanisms, #IPR Reform, Compulsory Licensing, Pools, Clearinghouses, standards poolsLicensing}, filename={Horn Nielsen Samardzija (20032006) - Alternative Approaches To IP ManagementCompulsory Patent Licensing.pdf}
}
@article{hussinger2006silencepalangkaraya2011misclassification, titleTitle ={Is silence golden? Patents versus secrecy at the firm levelMisclassification Between Patent Offices: Evidence From A Matched Sample Of Patent Applications}, author={HussingerPalangkaraya, Alfons and Webster, Elizabeth and Jensen, KPaul H.}, journal={The Review of Economics of Innovation and New TechnologyStatistics}, volume={1593}, number={83}, pages={735pp. 1063--752}, year={2006}, publisher={Taylor \& Francis1075}, abstract={In this paper, we estimate the 1990s, patenting schemes changed extent of misclassification in many respects: up- coming new technologies accelerated patent examination decisions between the European Patent Office (EPO) and the shift from price competition towards competition based on technical inventionsJapanese Patent Office (JPO), that is, applications that are incorrectly refused a worldwide surge in patenting took place, and the ‘patent thicket’ arose as patent or incorrectly granted a conse- quence of strategic patentingpatent. This study analyzes Using a proxy for inventive step as the importance predictor of patenting versus secrecy as an effective alternative to protect intellec- tual property in the inventions’ market phasecorrect decision, we find that the probability that a "true grant" application is refused is 6. The sales figure with new products 1%, while the probability that a "true refusal" application is granted is introduced as a new measure for the importance of IP protection tools among product innovating firms9.8%. Focusing on the German manufacturing in 2000However, it turns out that we find no evidence of an increasing trend of granting "bad" patents are impor- tant to protect intellectual property in at the marketEPO and JPO.}, year = {2011}, whereas secrecy seems to be rather important for early-stage inventions. publisher = {The MIT Press}, copyright = {Copyright © 2011 The MIT Press},
discipline={Econ},
research_type={empirical, econometric modelEmpirical}, industry={General, Manufacturing}, thicket_stance={neutralAssumed Pro}, thicket_stance_extract={A further development is that patents gained in value by their ability to be linked with other patentsSecond, which encourages patenting our notion of marginal inven- tions. The resulting complex network a correct decision rests on the legal meaning of single patents validity (that bears many legal pitfalls for patent applicants was given the name ‘patent thicket’ (Shapirois, novelty, nonobviousness, 2001and usefulness). These developments put into question From an increased number of patents motivated by economic perspective, however, whether an increased need for IP protection invention should be patentable depends on the relative net change to the incentive to invent and hint at innovate and the size of the deadweight monopoly losses. The latter includes strategic value of patents ways to have driven the construct undesirable patent surge. To summarize: on the one handthickets, recent changes build patent portfolios to extract additional bar- gaining power in patenting schemes have caused an elevated need for patents as an IP protection tool. On the cross-licensing arrangements, or other hand, they gained in importance as strategic instrumentsrent-seeking activities.}, thicket_def={refs shapiro#C1, Unspecified Blocking Mechanism, Strategic Patenting (Bad)}, thicket_def_extract={The resulting complex network Second, our notion of single patents that bears many a correct decision rests on the legal pitfalls for patent applicants was given the name ‘patent thicket’ meaning of validity (Shapirothat is, novelty, nonobviousness, 2001and usefulness). These developments put into question From an increased number of patents motivated by economic perspective, however, whether an increased need for IP protection invention should be patentable depends on the relative net change to the incentive to invent and hint at innovate and the size of the deadweight monopoly losses. The latter includes strategic value of patents ways to have driven the construct undesirable patent thickets, build patent surgeportfolios to extract additional bargaining power in cross-licensing arrangements, or other rent-seeking activities.}, tags={patenting secrecy, firm strategy#IPR Reform}, filename={Hussinger Palangkaraya Webster Jensen (20062011) - Is Silence Golden Patents Versus Secrecy At The Firm LevelMisclassification Between Patent Offices.pdf}
}
@article{huys2009legalparedes2006written, title={Legal uncertainty Written Description Requirement in the area of genetic diagnostic testingNanotechnology: Clearing a Patent Thicket}, author={Huys, I. and BerthelsParedes, NJ. and Matthijs, G. and Van Overwalle, GP.}, journal={Nature biotechnologyJ. Pat. \& Trademark Off. Soc'y}, volume={27}, number={1088}, pages={903--909489}, year={20092006}, publisherabstract={Nature Publishing Group}Nanotechnology is an emerging technology, abstract={A patent landscape analysis of 22 common genetic diagnostic tests shows substantially fewer claims on genes per se than initially suggested but raises questions of legal uncertainty and as to an emerging technology, there are certain intellectual property issues surrounding the claims’ scopeappropriate protection for nanotechnology.}Broadly speaking, discipline={Biologynanotechnology is the manufacture of structures and manipulation of matter within dimensions below 100 nanometers, Law}where unique phenomena enable novel applications. At the nanoscale, research_type={Empirical studythe physical, Industry Statistics}chemical, industry={Biology, Genetics}, thicket_stance={Anti}, thicket_stance_extract={With respect to genes, 25% and biological properties of materials differ in fundamental and valuable ways from the identified patents, filed by different applicants, claim properties of individual atoms and molecules or bulk matter.' Researchers and companies are attempting at applying these novel properties to a human gene, suggesting wide-range of applications and industries.' One important intellectual property issue in addressing nanotechnology is the possibility patenting of innovative techniques and compositions of the existence matter which are necessary for downstream innovation. The notion of a patent thicketis where an overlapping set of patent rights requires that those seeking to commercialize new technology obtain licenses from multiple patentees. In contrast to this relatively high number of gene claimsIf you get monopoly rights down at the bottom, only 3% "you may stifle competition that uses those patents later on and so the breadth and utilization of these gene claims patent rights can be classified as occupying used not only to stifle competition, but also have adverse effects in the long run on innovation." The patent thicket problem in nanotechnology has been suggested by a blocking positionrecent report by LuxResearch (hereinafter "LuxReport"), indicating that many patents have been filed relating to nanomaterials with their claims overlapping. ThereforeWhile many companies will want to use these nanomaterials, a hindering patent thicket cannot the LuxReport states these companies will be demonstratedforced to license patents from many different sources.}Potentially, thicket_def={def33}there will be significant transactional costs for further nanotechnology developments due to these overlapping claims. Moreover, thicket_def_extract={Firstthe quality of these nanotechnology patents has been repeatedly called into question, is " so the navigation of a patent thicket, defined as many blocking will have to be around these questionable patents from many different owners, emerging . The legal principles in the genetic diagnostic sector?}, tags={genetic diagnostic testing, written description requirement could clear some of this patent proliferationthicket by narrowing overlapping claims in nanotechnology during examination, research sector}litigation, filename={Huys (2009and especially in postgrant procedures. This paper generally discusses 1) - Legal Uncertainty In The Area Of Genetic Diagnostic Testing.pdf} } @article{iyama2005uspto, title={The USPTO's proposal the background of a biological research tool the nanomaterials in the LuxReport and the patent pool doesn't hold water}thicket; 2) the legal principles within the written description requirement; 3) why the written description requirement should be used; 4) the application of the legal principles within the written description requirement to nanomaterials discussed in the LuxReport; and 5) proposals for the written description requirement for the USPTO, author={Iyamathe Federal Circuit, Sand postgrant procedures.}, journal={Stanford Law Review}, pages={1223--1241}, year={2005}, abstract={},
discipline={Law},
research_type={Written TheoryDiscussion}, industry={BiologyNanotech}, thicket_stance={Assumed Pro}, thicket_stance_extract={But how likely is it that a patent thicket for biological research While many companies will develop? According want to use these nanomaterials, the NIH working group on research toolsLuxReport states these companies will be forced to license patents from many different sources. Potentially, a thicket of research tool patents has already begun there will be significant transactional costs for further nanotechnology developments due to formthese overlapping claims...The cumulative result Moreover, the quality of these actions is nanotechnology patents has been repeatedly called into question," so the initial formation navigation 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 innovationwill have to be around these questionable patents.}, thicket_def={refs shapiro#B1, References Shapiro, Overlapping Patents, Broad Patents, Dubious Patents, Unspecified Blocking Mechanism (Not DHCI), Diversely-Held, Cummulative Invention}, thicket_def_extract={Under this metaphor, The notion of a patent thicket arises when each block is granted separate yet concurrent exclusivity where an overlapping set of patent rightsrequires that those seeking to commercialize new technology obtain licenses from multiple patentees... The If you get monopoly rights down at the bottom, "you may stifle competition that uses those patents later on and so-called thicket is the resulting nexus breadth and utilization of concurrent and overlapping IP patent rights can be used not only to stifle competition, but also have adverse effects in the long run on innovation."... indicating that one must navigate in order many patents have been filed relating to practice any evolutionary form nanomaterials with their claims overlapping... Moreover, the quality of sciencethese nanotechnology patents has been repeatedly called into question," so the navigation of a patent thicket will have to be around these questionable patents.}, tags={Patent pool, antitrust#IPR Reform}, filename={Iyama Paredes (20052006) - The Usptos Proposal Of A Biological Research Tool Patent Pool Doesnt Hold WaterWritten Description Requirement In Nanotechnology.pdf}
}
@article{jacob2009patentsrai2003engaging, title={Patents Engaging Facts and PharmaceuticalsPolicy: A Multi-Institutional Approach to Patent System Reform}, author={JacobRai, Arti K.}, journal = {Columbia Law Review}, volume = {103}, Robin number = {5}, yearpages ={2009pp. 1035-1135}, journalabstract ={A paper given The Court of Appeals for the Federal Circuit, charged with adjudicating appeals in patent cases, has adopted an unusual approach that arrogates power over fact finding while it simultaneously invokes rule-formalism. Although the Federal Circuit's approach may be justified by the fact-finding and policy application deficiencies of the trial courts and the Patent and Trademark Office (PTO), it has had a negative impact on 29th November at innovation policy and has resulted in a patent system that is sorely in need of reform. This Article argues that because of the Presentation interdependence of the Directoratevarious institutions within the patent system, reform of the system must be both multi-General institutional and closely attentive to the institutional competence of the system's actors. Although Congress should clearly bolster the PTO's fact-finding abilities, giving plenary responsibility over factual questions to the PTO would not be cost effective. Accordingly, Congress should endow the system with improved fact-finding expertise through the institution of Competition’s Preliminary Report specialized trial courts. As for actual policy formulation, each of the Pharmaavailable institutional options--the legislature, the PTO, and the courts-sector inquiry-has substantial associated liabilities. On balance, however, the Federal Circuit is probably best positioned to formulate patent policy, so long as the fact-finding expertise of inferior institutions is bolstered and additional appellate mechanisms are instituted. By paying attention to institutional design and revising our institutions accordingly, we can achieve the patent system we should have had all along.}, abstractyear = {2003}, publisher = {Columbia Law Review Association, Inc.}, copyright ={Copyright © 2003 Columbia Law Review Association, Inc.}, discipline={Public, PolicyLaw}, research_type={CommentaryDiscussion, Theory}, industry={PharmaceuticalGeneral},
thicket_stance={Neutral},
thicket_stance_extract={Every patentee of a major invention Defensive patenting has become particularly prominent in certain industries like the semiconductor industry, where innovation is likely to come up with improvements cumulative, and alleged improvements to his invention. By the time his main patent has expired there will be a thicket of relevant patents intended often exists. See Bronwyn H. Hall & Rosemarie Ham Ziedonis, The Patent Paradox Revisited: An Empirical Study of Patenting in the U.S. Semiconductor Industry, 1979-1995, 32 RAND J. Econ. 101, 104 (2001). In such industries, firms gain freedom to extend his monopolyoperate through defensive patenting. Some will be goodIndeed, within the semiconductor industry, others bad. It is it appears that much of the increase in patenting per R&D dollar over the nature last two decades has been the consequence of the defensive patenting. See id. (noting that firms "appear to be engaged in 'patent portfolio races' aimed at reducing concerns about being held up by external patent system itself that this should happen owners and it has always happenedat negotiating access to external technologies on more favorable terms"). There According to Hall and Ziedonis, this increase in defensive patenting "is nothing new about “evergreening”, only causally related to the name and pro-patent shift in the implication which flows from U.S. legal environment in the word, that there is something sinister going on and that it has only recently been discovered1980s." Id. I discuss this alleged "pro-patent" shift infra Part III.B.}, thicket_def={#A, #C1, References Heller/Eisenberg, Transaction Costs, Dubious Patents, Unspecified Blocking Mechanism}, thicket_def_extract={Defensive patenting has become particularly prominent in certain industries like the semiconductor industry, where innovation is cumulative, and a thicket of relevant patents often exists.... Moreover, the guidelines on utility incorporate, at least implicitly, economic concerns that setting the utility standard too low could impede scientific progress by creating a transaction-cost-heavy thicket of patents on basic research}, tags={competition#IPR Reform, Review of Patent Validity}, filename={Jacob Rai (20092003) - Patents Engaging Facts And PharmaceuticalsPolicy.pdf}
}
year={2004},
industry={General},
thicket_stance={ProNeutral}, thicket_stance_extract={The competitive offensive advantage associated with a patent owner thicket can be high. It follows, of course, that there is also a substantial defensive advantage as well. The result may do this by creating be a thicket of pantents“race” to grow one’s IP portfolio. Unfortunately, however, so other parties are swamped with so much complex technical documentation it is not clear whether that they cannot separate race will be “to the chaff from the wheattop” (i.e. Developing patent thickets is relatively easy to do , in this regime since the patent examination process is cursorysocial interest), or “to the bottom” (i.e., harmful from a social point of view).the average cost of dispute resolution will be high}, thicket_def={def35#C1, #C2, References Shapiro, Quotes Shapiro, Dubious Patents, Single Firm, Unspecified Blocking Mechanism (Not DHCI), Strategic Patenting (Bad)}, thicket_def_extract={The In this case, a firm with a large patent portfolio surrounding competitors’ key technologies (i.e., a “patent thicket”) has the opportunity to use its patent portfolio to lessen competition in the final goods market.17 Suppose, for example, that within a patent owner may do this by creating thicket are a number of patents of dubious merit (perhaps some were obtained through inequitable conduct) and it is costly to innovate around assertions of infringement.... Shapiro (2001) characterizes a patent thicket as a “dense web of pantentsoverlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.”... Previous research recognizes a few ways in which a patent thicket can be used to strategic advantage. First, so other parties are swamped with so much complex technical documentation a company can patent new technology before potential competitors, including features and technologies that they cannot separate the chaff from the wheatit never intends to commercialize (socalled “submarine patents). Developing 21 The patent thickets thicket creates considerable uncertainty for competitors about whether their technology infringes, especially with respect to a hidden or submarine patent. Even if a firm is relatively easy not practicing submarine patents, a patent thicket makes it hard to do in this regime since design and sell products without running the risk of infringing on a competitor’s patent examination process is cursory...the average cost . A patent thicket is an especially effective means of dispute resolution will be highextracting concessions from rivals.}, tags={Designing patent system#Firm Strategy, Value from Position/Portfolio, Defensive/Offensive Patenting, Package Licenses}, filename={Jensen Webster Rubinfeld Maness (2004) - Achieving The Optimal Power Strategic Use Of Patent RightsPatents Implications For Antitrust.pdf}
}
@article{kato2004patentrey2012abuse, title={Patent pool enhances market competitionAbuse of Dominance and Licensing of Intellectual Property}, author={KatoRey, AP. and Salant, D.}, journal={International Review Journal of Law and Economics}, volume={24}, number={2}, pages={255--268Industrial Organization}, year={2004}, publisher={Elsevier2012}, abstract={This article investigates a pool paper examines the impact of the licensing policies of one or more upstream owners of substitute patents essential intellectual property (IP hereafter) on the downstream firms that enable firms require access to reduce marginal that IP, as well as on consumers and social welfare. The paper considers a model in which there is product differentiation downstream. License fees and fixed entry costs determine the number of productiondownstream competitors and thus variety. Contrary to We first consider the general belief, it case where there is shown that a pool single upstream owner of substitute patents may promote essential IP. Increasing the number of licenses enhances product variety, which creates added value, but it also intensifies downstream competition , which dissipates profits. We derive conditions under certain conditionswhich the upstream IP monopoly will then want to provide an excessive or insufficient number of licenses, thereby enhancing relative to the number that maximizes consumer surplus or social welfare in .When there are multiple owners of essential IP, royalty stacking can reduce the number of the downstream licensees, but also the downstream equilibrium prices the product marketconsumers face. The intuition paper derives conditions determining whether this reduction in downstream price and variety is that when firms compete in beneficial to consumers or society. Finally, the paper explores the impact of alternative licensing policies. With fixed license feesor royalties expressed as a percentage of the price, resultant low licensing an upstream IP owner cannot control the intensity of downstream competition. In contrast, volumebased license fees (i.e., per-unit access fees discourage firms from licensing ), do permit an upstream owner to control downstream competition and to outside firmsreplicate the outcome of complete integration. This leads to fewer licensees than The paper also shows that vertical integration can have little impact on downstream competition and licensing terms when a patent pool is formedIP owners charge fixed or volume-based access fees.},
discipline={Econ},
research_type={Model, Theory},
industry={General},
thicket_stance={Assumed Pro}, thicket_stance_extract={In Patent thickets have long been a concern due to the field potential for delaying deployment of economics, patent pools are analyzed by Shapiro (2000). He considers the role of patent pools in “patent thicket,” which means that there are so many patents issued that a single new patent will likely infringe on some other patents. This situation discourages products and retards research, development and commercializationadversely affecting consumers.}, thicket_def={Refs Shapiro#A, Complementary Inputs, Diversely-Held, Deliberate Royalty Stacking}, thicket_def_extract={In the field Patent thickets, layers of economicslicenses a firm needs to be able to offer products that embody technologies owned by multiple firms, patent pools are analyzed by Shapiro (2000)and licensing policies have drawn increasing scrutiny from policy makers. He considers the role of patent pools in “patent thicketPatent thickets involve complementary products,” which means that there are gives rise to double marginalization - the so many patents issued that a single -called royalty stacking problem - and has the potential to retard diffusion of new patent will likely infringe on some other patents. This situation discourages technologies and retards research, development and commercializationreduce consumer welfare.}, tags={patent pools#Private Mechanisms, substitute patentsLicensing, welfareRoyalties}, filename={Kato Rey Salant (20042012) - Patent Pool Enhances Market CompetitionAbuse Of Dominance And Licensing Of Intellectual Property.pdf}
}
@articlebook{kesselheim2005universityschacht2006patent, title={University-based science Patent Reform: Issues in the Biomedical and biotechnology productsSoftware Industries}, author={KesselheimSchacht, AW.S. and Avorn, JH.}, journal={JAMA: the journal of the American Medical Association}, volumeyear={2932006}, numberpublisher={Congressional Research Service (7}April 2006), pages={850available at: http://sharp.sefora.org/wp--854}, year={2005}, publisher={Am Med Assoccontent/uploads/2007/12/rl33367.pdf}, 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 dis- coveries 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.}, discipline={BiologyPolicy Report},
research_type={Discussion},
industry={BiotechnologyBiotech, PharmaceuticalSoftware}, thicket_stance={Weak ProNeutral}, thicket_stance_extract={Basic investigations conducted at universities and Concerns have been expressed in the academic medical cen- ters, usually publicly funded, often pro- duce key insights about community that the mecha- nisms underlying physiological function propensity to patent and disease statesthe extensive use of cross licensing has resulted in a “patent thicket” where ownership of patent title is used to block others from innovating. Private corpora- tions can then commercialize these insights .. Others agree that innovation in the software industry is not hindered by designing and marketing new therapeutics or other medical tech- nologies based on thema patent thicket. In this chain of developmentone study where actual software companies and investors were surveyed, allowing patenting of each incremental innovation could risk generating the analyst found new companies were not concerned with existing patent portfolios as a dense thicket of overlap- ping intellectual rights and thus hinder research effortsbarrier to their work...}, thicket_def={quotes shapiro#A, #B, #D, References Heller/Eisenberg, Unspecified Blocking Mechanism, Single Firm}, thicket_def_extract={Basic investigations conducted at universities and Concerns have been expressed in the academic medical cen- ters, usually publicly funded, often pro- duce key insights about community that the mecha- nisms underlying physiological function propensity to patent and disease statesthe extensive use of cross licensing has resulted in a “patent thicket” where ownership of patent title is used to block others from innovating. Private corpora- tions can then commercialize these insights .. Others agree that innovation in the software industry is not hindered by designing and marketing new therapeutics or other medical tech- nologies based on thema patent thicket. In this chain of developmentone study where actual software companies and investors were surveyed, allowing patenting of each incremental innovation could risk generating the analyst found new companies were not concerned with existing patent portfolios as a dense thicket of overlap- ping intellectual rights and thus hinder research efforts.barrier to their work}, tags={University research, upstream patentsPatent Reform, defining lineage existence of productsthickets}, filename={Kesselheim Avorn [[Schacht (20052006) - University Based Science Patent Reform Issues In The Biomedical And Biotechnology ProductsSoftware Industries]].pdf}
}
@article{kim2004verticalshapiro2003antitrust, title={Vertical Structure and Antitrust Limits to Patent PoolsSettlements}, author={KimShapiro, S.HC.}, journal={Review RAND Journal of Industrial Organization}, volume={25}, number={3Economics}, pages={231391--250411}, year={20042003}, publisherabstract={Springer}Patents, patent litigation, abstract={It is well known that and patent pools can enhance efficiency by eliminating the com- plements problemsettlements increasingly influence competition. This paper investigates how the presence of vertically integrated firms affects the economic impact Settlements of a patent pool. Without a disputes come in many forms,including licensing and cross-licensing agreements, patent poolpools, mergers, 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’ costsjoint ventures. HoweverWhile frequently procompetitive, when there is 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 poollitigation. After establishing that profitable settlements satisfying this constraint generally exist, vertical integration always lowers the final product price. In conclusionI show how this antitrust rule can be used to evaluate three types of settlements: mergers, the economic efficiency arguments for patent pools are enhanced when some firms are vertically integrated, and negotiated entry dates.},
discipline={Econ},
research_type={Theory, Mathematical},
industry={General},
thicket_stance={Assumed Pro}, thicket_stance_extract={When distinct firms As described in Shapiro (2001), more and more companies are selling inputs – all of which are required for pro- duction of the final product – they fail facing a patent thicket requiring them to obtain multiple licenses to internalize the effect that bring their royalty rates have on the demand for other inputs. This results in each patent holder setting too high a royalty rate. A ‘‘patent pool’’ has begun to attract widespread attention as a solution products safely to both the transaction cost and com- plements problemsmarket. }, thicket_def={Refs shapiro and heller/eisenberg#A, #C1, #C2, References Shapiro, Diversely-Held, Unspecified Blocking Mechanism}, thicket_def_extract={The proliferation of fragmented and overlapping patent rights is increasingly being recognized as a serious problem; referred to as a ‘‘patent thicket’’ (or ‘‘anticommons’’ by Heller and EisenbergMaking matters even more complex, 1998)many products can potentially infringe multiple patents. Besides the additional transaction costs incurred As described in navigating a patent thicket, Shapiro (2001) has called attention , more and more companies are facing a patent thicket requiring them to obtain multiple licenses to bring their products safely to market. The need to another source negotiate licenses or other settlements of intellectual property disputes is made even greater because of inefficiency – the complements problem. When distinct firms are selling inputs – all danger of hidden or submarine patents, which are required make it all too easy for pro- duction of a company unintentionally to infringe on a patent that was not yet issued when the final company's product – they fail was designed.2 Likewise, the need to internalize resolve intellectual property disputes is arguably made yet greatert o the effect extent thatt he U.S. Patenta nd TrademarkO ffice has issued "bad"p atents, i.e., patentso n technology that their royalty rates have on does not in fact meet the demand for other inputs. This results in each patent holder setting too high a royalty ratenovelty requirements. }, tags={vertical integration#Firm Strategy, patent poolsMergers, #Private Mechanisms, Pools, raising rivals' costsSettlements, double marginalizationNegotiated Entry Dates}, filename={Kim Shapiro (20042003) - Vertical Structure And Antitrust Limits To Patent PoolsSettlements.pdf}
}
abstract={},
discipline={Law},
research_type={CommentaryDiscussion}, industry={Nanotech}, 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}, thicket_def={#A, #B1, Quotes Shapiro, References Shapiro, DiscussionUnspecified Blocking Mechanism}, thicket_def_extract={Yet, several commentators have raised concerns that the extraordinary pace of patenting of nanotechnology5 will result in a patent deadlock6 that will stifle innovation and impede economic growth.7... Carl Shapiro defines "patent thicket" as "an overlapping set of patent rights requiring that those seeking to commercialize new technology obtain licenses from multiple patentees."}, tags={#Private Mechanisms, Licensing, #IPR Reform, Government Funding}, filename={Sabety (2004) - Nanotechnology Innovation And The Patent Thicket.pdf} } @article{santore2010patent, title = {Patent Pools as a Solution to Efficient Licensing of Complementary Patents? Some Experimental Evidence}, author = {Rudy Santore and Michael McKee, and David Bjornstad}, journal = {Journal of Law and Economics}, volume = {53}, number = {1}, pages = {pp. 167-183}, year = {2010}, 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.}, discipline={Econ}, research_type={Theory, Empirical},
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={All three developments have led to what is perceived as More recently, a marked increase in junk patentsNational Academy of Sciences (2006) committee studied the issue, as well as what Carl Shapiro concluding that even though evidence of blocking or market failures has termed a “patent thicket”—overlapping sets of patent rights leading yet to a maze of cross-licensing agreementsemerge, as the anticommons or patent thickets may well emerge as the rise of hold-up litigationprofit opportunities in biomedical markets grow.}, thicket_def={Refs #A, References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={All three developments have led to what Royalty fees are an inherently inefficient mechanism for pricing patents. In effect, such fees constitute an excise tax on downstream production, shifting the marginal cost of the good upward and resulting in higher prices and lower quantities for the consumers of the final product. The problem is perceived as compounded when a marked increase in junk set of patentsis required to produce the good.3 Each patent holder sets a use fee (a royalty), and since each of these acts as well as an excise tax on the downstream producer, the cumulative effect of several fees being charged (what Carl Lemley and Shapiro has termed [2007] refer to as “patent stacking”) is a higher cost of producing the good and a “patent thicket”—overlapping sets smaller quantity of output. The welfare losses consist of the sum of the patent rights leading to a maze holder’s lost returns, the lost profits of cross-licensing agreementsthe downstream firm, and the consumers’ loss of surplus from the final product.... Buchanan and Yoon (2000) study the incentives inherent in pricing complementary patents and demonstrate conditions under which the price of a complementary patent bundle increases with each additional patent in the bundle. Shapiro (2001) broadens the concept as well as a “patent thicket” in which possible outcomes include excessively high fees for the rise use of hold-up litigationthe patent set, uncertainty regarding potential patent infringement, and, in the limit, holdup problems.}, tags={supreme court#Private Mechanisms, Pools, casesComplements, patent reformLicensing}, filename={King Santore McKee Bjornstad (20072010) - Clearing The Patent ThicketPools As A Solution To Efficient Licensing Of Complementary Patents.pdf}
}
@techreportarticle{lampe2009patentschmidt2008complementary, title={Do Patent Pools Encourage Innovation? Evidence from the 19th-century Sewing Machine IndustryComplementary Patents and Market Structure}, author={Lampe, R.L. and MoserSchmidt, PK.}, year={20092008}, institutionpublisher={National Bureau of Economic ResearchCEPR Discussion Paper No. DP7005}, abstract={Members of a patent pool agree Many high technology goods are based on standards that require access to use a set of several patents as if they were jointly that are owned by all members different IP holders. We investigate the royalties chosen by IP holders under different market structures. Vertical integration of an IP holder and license them as a package to other downstream producer solves the double mark-up problem between these firms. Regulators favor pools Nevertheless, it may raise royalty rates and reduce output as a means compared to encourage innovation: Pools are expected to reduce litigation risks for their members and lower license fees and transactions costs for other firmsnon-integration. This paper uses the example Horizontal integration of the first IP holders (or a patent pool in U.S. history, the Sewing Machine Combination (1856-1877) to perform solves the first empirical test of complements problem but not the effects of a patent pool on innovationdouble mark-up problem. Contrary to theoretical predictions, the sewing machine pool appears to have discouraged patenting Vertical integration discourages entry and reduces innovationincentives, in particular for the members of the pool. Data on stitches per minute, as an objectively quantifiable measure of while horizontal integration always encourages entry and innovation, confirm these findings. Innovation for both members and outside firms slowed as soon as the pool had been established and resumed only after it had dissolved.},
discipline={Econ},
research_type={EmpiricalTheory}, industry={SewingGeneral},
thicket_stance={Pro},
thicket_stance_extract={Almost one hundred years laterThis “patent thicket” (Shapiro, 2001) gives rise to a complements problem: each patent pools have re-emerged as a remedy for industries that are plagued by litigation and holder does not internalize the negative external effect on the revenues of the other patent blockingholders when setting his royalties, which occurs when owners of competing patents prevent so the commercialization sum of new technologiesall royalties will be inefficiently high.}, thicket_def={Refs shapiro#A, References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={This “patent thicket” (Shapiro, 2001) gives rise to a complements problem: each patent holder does not internalize the negative external effect on the revenues of the other patent holders when setting his royalties, so the sum of all royalties will be inefficiently high.}, tags={Patent pools#Private Mechanisms, incentives to innovationPools, Licensing, Standards}, filename={Lampe Moser Schmidt (20092008) - Do Patent Pools Encourage InnovationComplementary Patents And Market Structure.pdf}
}
@techreportarticle{lampe2012patentschneider2008fences, title={Do Fences and Competition in Patent Pools Encourage Innovation? Evidence from 20 US Industries under the New DealRaces}, author={LampeSchneider, RC.L. and Moser}, journal={International Journal of Industrial Organization}, volume={26}, P. number={6}, yearpages={20121348--1364}, institutionyear={National Bureau of Economic Research2008}, abstract={This paper studies the behaviour of ?firms facing the decision to create a patent fence, de?fined as a portfolio of substitute patents. We set up a patent race model, where ?firms can decide either to patent their inventions, or to rely on secrecy. It is shown that fi?rms build patent fences, when the duopoly profi?ts net of R&D costs are positive. We also demonstrate that in this context, a fi?rm will rely on secrecy when the speed of discovery of the subsequent invention is high compared to the competitor?s. Furthermore, we compare the model under the First-to-Invent and First-to-File legal rules. Finally, we analyze the welfare implications of patent fences.},
discipline={Econ},
research_type={Empirical, Econometric ModelTheory},
industry={General},
thicket_stance={Weak Assumed Pro}, thicket_stance_extract={For example, While the creation issue of a pool may reduce "thickets" of complementary technologies in cumulative innovations has been extensively analyzed2, as well as the need for member firms institutional solutions to create patent thickets by reducing the threat of litigation overcome this problem (e.g.Lerner and Tirole, 2005 and Shapiro , 2001; Gilbert 2004), little attention has been paid to fencing patents so far.}, thicket_def={refs shapiro#A, #B2, #D, Complementary Inputs, Single Firm}, thicket_def_extract={We also investigate whether part More precisely, firms will patent a coherent group of the observed decline may inventions, which form what is sometimes called a patent "bulk", aimed at protecting one product. The "bulk" can either be driven by a reduction in lower-quality "fence" of substitute patents or “strategic” a "thicket" of complementary patents(see Reitzig, 2004 and Cohen et al., 2000).. For example.. In complex product industries, the creation of where innovation is highly cumulative, ?rms use patents to force rivals into negotiations and, as a pool may reduce the need for member firms to consequence, they create patent "thickets by reducing the threat " of litigation (e.gcomplementary technologies., Shapiro 2001; Gilbert 2004)}, tags={patent pools#Firm Strategy, #Private Mechanisms, Regime Selection, effects on innovationSecrecy}, filename={Lampe Moser Schneider (20122008) - Do Fences And Competition In Patent Pools Encourage InnovationRaces.pdf}
}
@article{leaffer2009patentschmalensee2009standard, title={Patent Misuse and Standard-Setting, InnovationSpecialists And Competition Policy}, author={LeafferSchmalensee, MR.}, journal={J. High Tech. L.The Journal of Industrial Economics}, volume={1057}, number={3}, pages={142526--552},
year={2009},
publisher={Wiley Online Library}, abstract={Using a simple model of patent licensing followed by product-market competition, this paper investigates several competition policy questions related to standard-setting organizations (SSOs). It concludes that competition policy should not favor patent-holders who practice their patents against innovation specialists who do not, that SSOs should not be required to conduct auctions among patent-holders before standards are set in order to determine post-standard royalty rates (though less formal ex ante competition should be encouraged), and that antitrust policy should not allow or encourage collective negotiation of patent royalty rates. Some recent policy developments in this area are discussed.}, discipline={Econ}, research_type={Theory}, industry={General}, thicket_stance={Weak Anti}, 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)}, thicket_def_extract={Patent Office has been awarding patents too easily and that US courts have been too willing to uphold the validity of dubious patents.9 To the extent that patent policy inflates the number of patents that must be licensed in order to practice a standard, it contributes to what has beecalled a ‘patent thicket’ through which standard-setting must pass.}, tags={#Private Mechanisms, Standards, SSOs, #IPR Reform, Balance with Anti-trust, Prevent Hold-up/Royalty Stacking}, filename={Schmalensee (2009) - Standard Setting Innovation Specialists And Competition Policy.pdf} } @article{shand2007trends, title={Trends in Intellectual Property and Nanotechnology: Implications for the Global South}, author={Shand, H. and Wetter, K.J.}, journal={Journal of Intellectual Property Rights}, volume={12}, pages={111--117}, year={2007}, abstract={The race is on to win exclusive monopoly patents on nano-scale materials, devices and processes. The US National Science Foundation predicts that the immensely broad power and scope of nano-scale technologies will revolutionize manufacturing across all industry sectors - capturing a $1 trillion market within six or seven years. 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. Industry analysts warn that, 'IP roadblocks could severely retard the development of nanotechnology.' After a decade of confusion and controversy over biotech patents, South governments are now facing a newer, bigger technology wave. By 1 July 2013 even 'least developed' countries will be obligated by the World trade Organization's Trade-Related Asapects of Intellectual Property (TRIPS) to acccommodate nanotechnology-related inventions. Despite rosy predictions that nanotech will provide a technical fix for health, sustainable energy, and environmental security in the South, researchers in the developing world are likely to find that participation in the proprietary 'nanotech revolution' is highly restricted by patent tolbooths, obliging them to pay royalties and licensing fees to gain access.},
discipline={Law},
research_type={Written TheoryDiscussion}, industry={GeneralNanotech},
thicket_stance={Weak Pro},
thicket_stance_extract={Single company acquisition of a dense web of overlapping patents-Although industry analysts assert that nanotech is in its infancy, patent thickets15thickets on fundamental nano-may create a seemingly impenetrable web which a company must hack its way through in order to commercialize new technology.1 6 As the number of issued patents skyrocketscale materials, companies more frequently enter into arrangements with competitors "not only to recover their investment from tools and processes are already creating patented products but also to avoid the patent landmines that line the path of innovationthorny barriers for would-be innovators."}, thicket_def={def34#B, Broad Patents, Unspecified Blocking Mechanism, Cummulative Invention}, thicket_def_extract={A firm with a large Will overly broad patents or 'patent portfolio enveloping a competitorthickets's key technologieson emerging nano-one that could be termed a "patent thicket"-has scale materials, processes and devices prevent researchers in the potential to use it to suppress competition global South from participating in the ultimate goods market.142 As stated above, patent thickets may encompass patents of dubious merit.143 Unfortunately, it is costly to innovate around assertions of infringementnanotech revolution?}, tags={antitrustTRIPS, patent misuseIndustry Commentary}, filename={Leaffer Shand Wetter (20092007) - Patent Misuse Trends In Intellectual Property And InnovationNanotechnology.pdf}
}
thicket_stance={Anti},
thicket_stance_extract={Our respondents do not encounter an anticommons or a patent thicketWhen strong, watertight patents are available, as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). RatherOn the other hand, they believe that institutionally mandated MTAs put sand in systems products industries, thickets of patents may be necessary to foil attempts to invent around the wheels of patent, and obtain a lively system of intradisciplinary exchanges of research toolsrobust patent position. Seeing no countervailing effect on the supply of these toolsMoreover, they conclude that defen sive patenting impedes ?the progress building of researchlarge 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).}, thicket_def={cites Shapiro and heller/eisenberg#B2, #D, Single Firm, Unspecified Blocking Mechanism, Strategic Patenting (Bad), Hold-up}, thicket_def_extract={This question has been of particular concern for the biological sciencesWhen strong, where production and exchange of biological ‘research tools’ watertight patents are important for ongoing scientific progressavailable, as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). Recent studies addressing this issue On the other hand, in systems products industries, thickets of patents may be necessary to foil attempts to invent around the United States1patent,2and obtain a robust patent position. Moreover, Germany3defensive patenting, Australia4 and Japan5 find that “patent thickets”6 or an “anticommons”7 rarely affect the research building of academic scientistslarge 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).}, tags={research access#Firm Strategy, open sourceValue from Position/Portfolio, IP Rights#Private Mechanisms, Settlements}, filename={Lei Juneja Wright Somaya (20092003) - Patents Versus PatentingStrategic Determinants Of Decisions Not To Settle Patent Litigation.pdf}
}
@article{lerner2005theeconomicssomaya2011innovation, title = {The Economics of Technology SharingInnovation in Multi-Invention Contexts: Open Source Mapping Solutions to Technological and BeyondIntellectual Property Complexity}, author = {LernerSomaya, Josh D. and TiroleTeece, JeanD. and Wakeman, S.}, journal = {The Journal of Economic PerspectivesCalifornia Management Review}, volume = {1953}, number = {24}, pages = {pp. 9947--120}, abstract = {This paper reviews our understanding of the growing open source movement. We highlight how many aspects of open source software appear initially puzzling to an economist. As we have acknowledge, our ability to answer confidently many of the issues raised here questions is likely to increase as the open source movement itself grows and evolves. At the same time, it is heartening to us how much of open source activities can be understood within existing economic frameworks, despite the presence of claims to the contrary. The labor and industrial organization literatures provide lenses through which the structure of open source projects, the role of contributors, and the movement's ongoing evolution can be viewed.79}, year = {20052011}, publisher = {American Economic AssociationJSTOR}, copyright abstract= {Copyright © 2005 American Economic Association}, discipline={EconMgmt}, research_type={Discussion, Written Theory},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={Firms can also address these problems in non-open-source ways, Scholars such as patent poolsMichael Heller and Rebecca Eisenberg, standard-setting organizationsCarl Shapiro, and selfothers have drawn attention—arguably too much attention—to the transactional problems created for innovators by such dispersed ownership and the density (or so-called thickets) of patents.58 Less attention has been paid by those authors to the equally important role of patents for supporting innovation in multi-imposed commitmentsinvention settings. In a Innovators and entrepreneurs are often among the most enthusiastic supporters of the patent pool, firms blend system because they perceive it as providing safeguards from misappropriation of their patents with those of other firmsinventions. These pools allow users 59 Research has also shown that innovators are often able to devise “working solutions” to navigate patent access a number of firms’ concerns, and that patents simultaneously, thereby avoiding the “patent thicketmay in turn be crucial for enabling transactions in technology.”60}, thicket_def={def38#A-ST, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={SecondScholars such as Michael Heller and Rebecca Eisenberg, Carl Shapiro, and others have drawn attention—arguably too much attention—to the transactional problems created for innovators by such dispersed ownership and the density (or so-called thickets) of patents... Indeed, open source avoids the problem plethora of a “patent thicket” when multiple firms have overlapping intellectual property rightsIP implicated, and at least one party attempts the resulting complex licensing required, has led some academics to extract despair that some sections of the economy have—or are about to—experience a high fee for its particular contribution“tragedy of the anticommons” (i.e., no one will use the patented technology because licensing the required technologies is simply too challenging or too expensive).}, tags={open source#Private Mechanisms, patent poolsPre-emptive patenting, #Firm Strategy Value from Position/Portfolio, Defensive/Offensive Patenting, Licensing}, filename={Lerner Tirole Somaya Teece Wakeman (20052011) - The Economics Of Technology Sharing Open Source And BeyondInnovation In Multi Invention Contexts.pdf}
}
@article{lerner2003structuretullis2005application, title={Application of the Government License Defense to Federally Funded Nanotechnology Research: The Structure and Performance of Case for a Limited Patent Pools: Empirical EvidenceCompulsory Licensing Regime}, author={LernerTullis, JT.K. and Strojwas}, M journal={UCLA L. Rev. and Tirole}, J. volume={53}, journalpages={Working paper279}, year={20032005}, abstract={Nanotechnology's potential impact on worldwide industries has nations around the world investing billions of dollars for research in order to capture a part of the projected trillion dollar market for nanotechnology products in 2010. The current rush to patent nanotechnologies may lead to an overcrowded nanotechnology patent thicket that could deter critical innovation and continued product development in the United States. At this early stage of nanotechnology's life cycle, increasing numbers of broad and potentially overlapping patents are being issued--while few nonexclusive licenses are being offered. Furthermore, the lack of significant case law provides little guidance on proper nanotechnology patent scope and validity, while the decline of legal defenses such as experimental use leaves innovators exposed to potential infringement liability for even the most fundamental of scientific research studies. In this Comment, the author proposes that the U.S. government exercises the full extent of its rights under the twenty-five year old Bayh-Dole Act and develop the government license defense to create a limited patent compulsory licensing regime for the fruits of federally funded research. The author argues that recipients of the billions of dollars in federal nanotechnology research funds should provide broad, nonexclusive licenses to the privatized patent rights they obtain as a result of public funding. Ultimately, a well-formulated government license defense, which assesses the extent to which an "infringing" act against a federally funded patent falls along a spectrum of fair use, would provide a means for overcoming the innovation-impeding effects of absolute exclusion rights.}, discipline={EconLaw}, research_type={Empirical, RegressionDiscussion}, industry={GeneralNanotech},
thicket_stance={Assumed Pro},
thicket_stance_extract={Numerous commentators have suggested that The development of such a patent thicket could deter further innovation, 6 and the proliferation active enforcement by nanotechnology patent holders of these awards has had socially detrimental consequences: overlapping intellectual property their exclusivity rights may make it difficult for inventors 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 commercialize new innovations. (Gallini [2002] reviews this literatureexclude others from that resource, and no one has an effective privilege of use.)}, thicket_def={def39#A, #B, References Shapiro, Overlapping Patents, Diversely-Held, Unspecified Blocking Mechanism}, thicket_def_extract={A more benign alternative is that firms enter into patent pools Unfortunately, the rush to secure worldwide intellectual property rights in nanotechnology could lead to solve the “patent thicket” problem: the presence development of overlapping a "patent thicket." This term, coined by intellectual property holdings that make it difficult for third parties scholars, refers to license an overlapping set of patent holdings rights that requires researchers, inventors, and develop entrepreneurs seeking to commercialize new technologiesto obtain licenses from multiple patentees.}, tags={Pools#IPR Reform, Compulsory Licensing}, filename={Lerner Strojwas Tirole Tullis (20032005) - Application Of The Structure And Performance Of Patent Pools Empirical EvidenceGovernment License Defense To Federally Funded Nanotechnology Research.pdf}
}
@techreportarticle{lerner2002efficienttaylor2003american, title={Efficient American Patent Pools}Policy, author={LernerBiotechnology, J. and Tirole, J.}, year={2002}, institution={National Bureau of Economic Research}, abstract={African Agriculture: The paper builds a tractable model of a patent pool, an agreement among patent owners to license a set of their patents to one another or to third parties. It Þrst provides a necessary and sufficient condition Case for a patent pool to enhance welfare. It shows that requiring pool members to be able to independently license patents matters if and only if the pool is otherwise welfare reducing, a property that allows the antitrust authorities to use this requirement to screen out unattractive pools. The paper then undertakes a number of extensions: cases where patents differ in importance, where asymmetric blocking patterns exist, and where licensors are also licencees. We also undertake some initial explorations of the impact of pools on innovation. We conclude by showing that the analysis has broader applicability than pools, as it is also relevant to a number of co-marketing arrangements.Policy Change}, disciplineauthor={Econ}Taylor, research_type={Theory}, industry={General}, thicket_stance={Weak Pro}, thicket_stance_extract={Innovations in computer hardware, software, and biotechnology often build on a number of other innovations owned by a diverse set of owners and as a result patent thicket" problems - overlapping patent claims that preclude the adoption of new technologies - can be severeM.R.}, thicket_def={def40}, thicket_def_extract={Innovations in computer hardware, software, and biotechnology often build on a number of other innovations owned by a diverse set of owners and as a result patent thicket" problems - overlapping patent claims that preclude the adoption of new technologies - can be severe.}Cayford, tags={Patent pools, welfare}, filename={Lerner Tirole (2002) - Efficient Patent PoolsJ.pdf} } @incollection{lerner2008public, title={Public policy toward patent pools}, authorjournal={Lerner, JHarv. and Tirole, JJL \& Tech.}, booktitlevolume={Innovation Policy and the Economy, Volume 817}, pages={157--186321}, year={2008}, publisher={University of Chicago Press2003}, abstract={The past two decades have seen an explosion of patent awards and litigation across a wide variety of technologies, which numerous commentators have suggested has socially detrimental conseuqences. Patent pools, in which owners of intellectual property share patent rights with each other and third parties, have been proposed as a way in which firms can address this patent-thicket problem. The paper discusses the current regulatory treatment of patent pools and highlights why a more nuanced view than focusing on the extreme cases of perfect complements and perfect substitutes is needed. It also highlights the importance of regulators' stance towward independent licensing, grantback policies, and royalty control. We also present case-study and large-sample empirical evidence.}, discipline={EconLaw},
research_type={Theory},
industry={General, PolicyBiotech},
thicket_stance={Pro},
thicket_stance_extract={Many observers have suggested that The 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 is a royalty that seems reasonable when viewed problem because useful innovation in isolation, but together they represent an unreasonable burdenbiotechnology requires multiple inventive steps and technologies. SecondThe field of biotechnology is particularly dependent on the cumulative work of many researchers, even if other firms agree and therefore is vulnerable to license their patents at a modest rate, a hold-out the “anticommons” 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 avoidedmentioned earlier.}, thicket_def={def41References Shapiro, Overlapping Patents, Broad Patents, Unspecified Blocking Mechanism}, thicket_def_extract={Many observers have suggested that #B1, This pattern — the increasing number of patents, increasing patent breadth, and the issuance of patents on more basic discoveries — has created what some call a patent-thicket problems - where key patents are widely held affect many emerging industriesin biotechnology: “an overlapping set of patent rights requiring that those seeking to commercialize new technology obtain licenses from multiple patentees}, tags={patent pools#IPR Reform, licensingResearch Exemption, grantbackCompulsory Licensing, royalties, substitutes and complements, welfareIndustry Commentary}, filename={Lerner Tirole Taylor Cayford (20082003) - Public American Patent Policy Toward Patent PoolsBiotechnology And African Agriculture.pdf}
}
@article{lerner2007impactvan2006clearing, title={What is A Clearing House for Diagnostic Testing: the Impact Solution to Ensure Access to and Use of Software Patent ShiftsPatented Genetic Inventions? Evidence from Lotus v. Borland}, author={LernerVan Zimmeren, JE. and ZhuVerbeure, FB. and Matthijs, G. and Van Overwalle, G.}, journal={International Journal Bulletin of Industrial the World Health Organization}, volume={2584}, number={35}, pages={511352--529359}, year={20072006}, publisher={SciELO Public Health}, abstract={Economists In genetic diagnostics, the emergence of a so-called “patent thicket” is imminent. Such an overlapping set of patent rights may have debated restrictive effects on further research and development of diagnostic tests, and the extent provision of clinical diagnostic services. Currently, two models that may facilitate access to which strengthening and use of patented genetic inventions are attracting much debate in various national and international fora: patent protection spurs or detracts from technological innovationpools and clearing houses. This paper examines In this article, we explore the reduction concept of software copyright protection in the Lotus vclearing houses. Borland decisionSeveral types of clearing houses are identified. If patent First, we describe and discuss two types that would provide access to information on the patented inventions: the information clearing house and copyright protections are substitutesthe technology exchange clearing house. Second, weakening three types of one form should be associated with clearing houses are analysed that not only offer access to information but also provide an increased reliance on instrument to facilitate the use of the patented inventions: the other. We find that open access clearing house, the firms affected by standardized licences clearing house and the diminution of copyright protection disproportionately accelerated their patenting in subsequent yearsroyalty collection clearing house. But little evidence can A royalty collection clearing house for genetic diagnostic testing would be found for any harmful effects on firms' performance the most comprehensive as it would serve several functions: identifying patents and incentive patent claims essential to innovate: in factdiagnostic testing, the increased reliance on patents is correlated matching licensees with growth in measures licensors, developing and supplying standardized licences, collecting royalties, monitoring whether users respect licensing conditions, and providing dispute resolution services such as sales mediation and arbitration. In this way, it might function as an effective model for users to facilitate access to and use of the patented inventions. However, it remains to be seen whether patent holders with a strong patent portfolio will be convinced by the advantages of the royalty collection clearing house and R&D expendituresbe willing to participate.}, discipline={EconPolicy Report}, research_type={Empirical, Regression, ModelDiscussion}, industry={Software, TechnologyGenetics},
thicket_stance={Weak Pro},
thicket_stance_extract={The environment is a complex one: many other changesMoreover, such as there are factors that may lead to the widespread dissemination emergence of a patent blocking problem in genetics in the Internet, may have differentially affected firms during this period. While our result contradicts future: increased awareness among researchers; and growing rate of patent enforcement caused by the claim strategic enforcement of their rights by Bessen patent holders 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 proliferating complexity of patent rights biomedical research requiring those seeking to commercialize new technology obtain licenses from multiple patentees (Shapiro, 2001) – could still exista broader range and greater number of inputs of which a growing number is patented.}, thicket_def={refs shapiro#A-T, References Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={ThereforeScientists, patent attorneys and academics have expressed concerns about the patent thicket problem – emergence of a “patent thicket” in the biomedical sciences. Many patents have been granted in this specific technical field, leading to concern among researchers and companies that they will encounter serious difficulties cuttting through the bulk of patents and paying the associated licensing fees.1 Heller and Eisenberg developed the idea that such an overlapping set increase in property rights will ultimately lead to a “tragedy of patent the anticommons”.2,3 By this, they refer to the situation where there are so many property rights in the hands of various owners — with whom parties must reach agreements to enable them to aggregate the rights requiring those seeking they need access to in order to legally perform their activities — that it will prove difficult to bargain licences to commercialize new technology obtain licenses from multiple patentees (Shapiro, 2001) – could still exist}the patented inventions successfully.}, tags={uncertainty#Private Mechanisms, Pools, Clearinghouses, patent and copyright protectionsRoyalties}, filename={Lerner Zhu VanZimmeren (20072006) - What Is The Impact Of Software Patent ShiftsA Clearing House For Diagnostic Testing.pdf}
}
@article{lin2001researchvanoverwalle2010turning, title={Research Versus Development: Turning Patent Pooling, Innovation and Standardization in the Software IndustrySwords into Shares}, author={LinVan Overwalle, D.Geertrui}, journal={J. Marshall Rev. Intell. Prop. L.Science}, volume={1330}, pagesnumber ={i6011}, yearseries ={2001New Series}, abstractpages ={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 technologiespp. Specifically1630-1631}, as new technologies build upon old technologies abstract = {}, they necessarily become increasingly complex year = {2010}, and as a result, are often subject to publisher = {American Association for the protection Advancement of multiple patentsScience}, covering both the new cumulative technologies as well as old foundational technologies. The difficulties of acquiring licenses (e.g. hold-out problems) copyright = {Copyright © 2010 American Association for all such patents has the potential to stifle the development and commercialization Advancement of these new technologies. As suchScience}, 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 abstract={Compulsory licenses and invention in new technologies that can compete with an incumbent standard. Recent patent jurisprudence and lenient federal antitrust agency of recent pools will assist modern patent pooling proposals seem to create an environment that encourages the resurgence of patent poolinglaw in fueling genetic test development.}, discipline={LawGeneral Science}, research_type={Written TheoryDiscussion}, industry={SoftwareBiotech, TechnologyGenetics}, thicket_stance={Assumed Weak Pro}, thicket_stance_extract={Despite the impressive pace Empirical data do not yet confirm existence of modern inventiona patent thicket in genetics at large (14, commentators have observed a certain “patent thicket” effect that may be impeding what has become an increasingly difficult road to the commercialization of new technologies15).1 Specifically, as new technologies build upon old technologies, they necessarily become increasingly complexHowever, thicket problems in genetic diag- nostics could grow with shifts (i) from mono- genetic to multifactorial testing (multiplex diagnostics) and as a result, are often subject to (ii) toward diagnostics based on genome-wide association studies driven by the protection high-throughput of multiple patentssingle nucleotide polymorphism platforms and next-generation sequencing possibilities (6, covering both the new cumulative technologies as well as old foundational technologies16).2 The difficulties Although not an illustrative example of acquiring licenses (e.g.this phenomenon, hold-out problems) for all such patents the Myriad decision has the invigorated concerns about potential to stifle the development negative effects of a dense and commercialization of these new technologiesdispersed patent landscape.}, thicket_def={Refs #A, #B1, Quotes Shapiro, References Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={Despite A second phenomenon relates to the impressive pace dense and fragmented genetic patent landscape. Problems arise when “patent thickets” (a web of modern invention, commentators have observed overlapping patents through which a certain “patent thicket” effect that may be impeding what has become an increasingly difficult road company must “hack” in order to the commercialization of new technologiescommercialize a technology) emerge ( 12).1 SpecificallyAccumulation, as new technologies build upon old technologiesor “stacking, they necessarily become increasingly complex, and as ” of royalties that have to be paid when confronted with a result, are often subject patent thicket may lead to the protection a “tragedy of multiple patents, covering both the new cumulative technologies as well as old foundational technologies.2 The difficulties of acquiring licenses (e.g., holdanti-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologies.commons”}, tags={Open standards#Private Mechanisms, SSOPools, #IPR Reforms, Compulsory Licensing}, filename={Lin VanOverwalle (20012010) - Research Versus DevelopmentTurning Patent Swords Into Shares.pdf}
}
@article{lin2011licensingverbeure2006patent, title={Licensing Strategies in the Presence of Patent ThicketsPools and Diagnostic Testing}, author={LinVerbeure, B. and van Zimmeren, LE. and Matthijs, G. and Van Overwalle, G.}, journal={Journal of Product Innovation ManagementTRENDS in Biotechnology}, volume={2824}, number={53}, pages={698115--725120}, year={20112006}, abstract={Many key industries (e.g., biomedical, pharmaceuticals, telecommunications, and information technologies) are characterized by cumulative innovations, where There is increasing concern that overlapping patents in the introduction field of genetics will create a costly and legally complex situation known as 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 existthicket, which researchers have argued may hinder , along with the development associated issues of cumulative innovations. Specifically, patent thickets may lead to excessive accumulating royalty burdens for potential licenseespayments, 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 can act 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 firmsdisincentive for innovation. It discusses a variety One potential means 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 preventing this is for 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 profitholders to enter into a so-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 called patent ispool, hybrid licenses consisting of a fixed fee and a quantity- or revenue-based royalty rate lead to the same market outcomes such as a fully integrated firm that owns all those established in the patents electronics and the downstream markettelecommunications industries. This article has interesting implications Precedents for both research and practice. First, these also exist in the results show that even under the same patent ownership structure, different forms field of licenses lead to quite different market outcomes. Thereforegenetics, it is suggested that firms and policy makers pay more attention to contractual forms of licenses when trying notably with the patents pertaining 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 severeSARS genome. In practice, revenue-based royalties are most common, under which double marginalization is much milder. Thirdthis review, we initially address the results show that patent pools can be most effective pool concept in mitigating royalty stacking general and double marginalization when quantity-based or revenue-based royalties are the sole or primary payment form, especially when downstream firms have low bargaining powerits application in genetics.}, discipline={Econ}Following this, research_type={Theory, Mathematical}, industry={General}, thicket_stance={Assumed Pro}, thicket_stance_extract={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 we will be driven up, dubbed as ‘‘double marginalization.’’}, thicket_def={Refs Heller/Eisenberg/Lessig/Shapiro/Bessen and Maskin}, thicket_def_extract={Related, and often overlapping, patents owned by many entities are often described as ‘‘patent thickets’’ and researchers have argued that explore patent thickets can be detrimental to innovation, especially pools in information industries such as software (see, among others, Heller and Eisenberg, 1998; Lessig, 2001; Shapiro, 2001; Bessen and Maskin, 2009).}, tags={Patent Pools, Licensing, Royalties, double marginalization, upstream, downstream}, filename={Lin (2011) - Licensing Strategies In The Presence Of Patent Thickets.pdf} } @article{macdonald2004means, title={When Means Become Ends: Considering the Impact of Patent Strategy on Innovation}, author={Macdonald, S.}, journal={Information Economics and Policy}, volume={16}, number={1}, pages={135--158}, 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 diagnostic field in itself. This seems to be changingmore detail, 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, examine some existing and novel examples 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 patent pools 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 innovationgenetics.}, discipline={ManagementGeneral Science}, research_type={Discussion, Commentary}, industry={Strategy, GeneralBiotech},
thicket_stance={Weak Pro},
thicket_stance_extract={The pharmaceutical industry has been instrumental There is increasing concern that overlapping patents in creating the field of genetics will create a costly and legally complex situation known as a patent system for the pharmaceutical industrythicket, which, appropriate to along with the orderly innovation of that industry. Acceptance associated issues of the innovation myth has meant that this logic is rarely challenged. Thusaccumulating royalty payments, can act as a disincentive 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.}, thicket_def={refs shapiro#A-T, #B1-T, Quotes Shapiro, References Shapiro, References Heller/Eisenberg, Diversely-Held, Unspecified Blocking Mechanism}, thicket_def_extract={Anticommons effect. An effect arising from the situation where multiple owners each have the right to exclude others from the use of a resource and no one has an effective privilege of use: this results in under use of the resource [7,8].... Patent thicket: The costs intellectual property portfolios of navigating through mazes several companies that form a dense web of overlapping patent intellectual property rights – through ... Recent studies have reported on the licensing practices of the owners of patents for genetic inventions [3–6], and concerns have been raised that patent thickets – are likely , resulting in royalty stacking (see Glossary), block access to be considerable patented technology through the accumulated license fees that a downstream inventor has to pay to upstream patent holders. Although the existence of an anticommons effect (Shapirosee Glossary) of patents [7,8] has not been validated by comprehensive empirical data, 2001)...it is pertinent to reflect on ways to remedy this}, tags={strategic use of patents#Private Mechanisms, Pools}, filename={Macdonald Verbeure (20042006) - When Means Become EndsPatent Pools And Diagnostic Testing.pdf}
}
@article{mallo2008patentwang2010rise, title={Patent-related Barriers to Market Entry for Generic Medicines in the European Union: A Review Rise of Weaknesses in the Current European Patent System and Their Impact on Market Access of Generic MedicinesIntermediaries}, author={Mallo, L. and Roox, K. and Pike, J. and BrownWang, A. and Becker, S. and Thaler, GW.}, journal={Journal of Generic Medicines: The Business Journal for the Generic Medicines SectorBerkeley Tech. LJ}, volume={5}, number={425}, pages={255--280159}, year={2008}, publisher={SAGE Publications2010}, 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 evolving from purely exclusionary instruments into intellectual property assets that term. The chances of market entry for generic medicines companies in all markets the day following expiry of the main basic patent play a part 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 business strategy and contracting product pipelines, originator companies may be tempted to unjustly prolong the patent monopoly of existing productshave value as transactional goods. The result is known as the ‘ evergreening ’ of a basic patent with the help of follow-on patents to keep generic competitors off Businesses operating in the market. These follow-on patents are often weak or trivial and, upon careful examination, it is clear that they should never intellectual property marketplace have been granted. Patent quality is therefore experienced an unprecedented explosion of the utmost importanceactivity involving these intangible but valuable assets. The European patent system should only reward true inventions and should discourage patent applications new market 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) intellectual property has the resources it needs to continue to improve the quality of patent examiners, along with their training and remuneration, inspired entrepreneurial legal professionals and business professionals alike 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 create new companies and fewer trivial patents. Applicants should be more rigorously required expand existing ones to provide patent applications of the highest quality accompanied by all relevant information at the start of the examination process. Similarlyact as middlemen, they should be under obligation to disclose all information known to them that is material to encouraging the patentability continued proliferation 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 EPOtransactions. A European patent is not a unitary patent, but essentially a bundle of national patents. As a result, questions of patent infringement These entities operate and validity are governed by various national laws and are handled by thrive in 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 intermediary market between buyers and diverging, even contradictory, court decisions. The lack of a central judiciary composed sellers of experienced patent judges is regarded intellectual property 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 well as an equitable remedy since injunctions today are often used simply as a litigious tactic. This change would require a litigant auxiliary markets related to establish the existence protection 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, etcintellectual property.}, discipline={PolicyLaw}, research_type={Commentary, Discussion}, industry={PharmaceuticalICT}, thicket_stance={Weak Assumed Pro}, thicket_stance_extract={Certain structural defi ciencies and weaknesses in the current examination procedureIn this age of patent thickets, however, result in the grant of an organization must tread carefully lest it infringe countless 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 ’ just by doing business (see belowcites Heller Eisenberg's Anticommons). The most obvious structural issues are discussed below.}, thicket_def={#A-ST, Quotes Shapiro, References Shapiro, Diversely-Held, Transaction Costs, Unspecified Blocking Mechanism}, thicket_def_extract={Carl Shapiro defines a patent thicket as a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.”... In this age of patent thickets,60 an organization must tread carefully lest it infringe countless patents just by doing business,61 and an aggregate license to a large cluster of patents in the appropriate field of technology can provide peace of mind.... This is not the case for new entrants to the field, who are unable to transact on even grounds and are likely to find it far more difficult to penetrate the thicket without financially overextending themselves through costly licensing and search-related expenditures. However, without such expenditures they risk even more expensive litigation. }, tags={Evergreening}, filename={Mallo Wang (20082010) - Rise Of The Patent Related Barriers To Market Entry For Generic Medicines In The European UnionIntermediaries.pdf}
}
@article{maskus2006reformingwagner2003information, title={Reforming US patent policy: getting the incentives right}, author={Maskus, K.E.}, journal={Innovations: Technology, Governance, Globalization}, volume={1}, number={4}, pages={127--153}, year={2006}, publisher={MIT Press}, abstract={}, discipline={Policy}, research_type={Commentary, Discussion}, industry={General}, thicket_stance={Weak Pro}, thicket_stance_extract={In addition Information Wants to the costs of individual patents, researchers have to contend with “patent thickets.” That is, complex technologies, such as biomedical research tools,embody a number of technological inputs, many of which are patented. A different company, in turn, could own each patent. Negotiating these thickets raises the cost of securing rights. Weaker patent standards encourage patent proliferation and an enlargement of the thickets for research in areas such as biotechnology, agricultural chemicals, and pharmaceuticals...That suggests patent thickets and transactions costs may slow down the diffusion of scientific research.}, thicket_def={def42}, thicket_def_extract={In addition to the costs of individual patents, researchers have to contend with “patent thickets.” That is, complex technologies, such as biomedical research tools,embody a number of technological inputs, many of which are patented.}, tags={TRIPS, patent proliferation}, filename={Maskus (2006) - Reforming Us Patent Policy Getting The Incentives Right.pdf} } @article{masur2010costly, title={Costly Screens and Patent Examination}, author={Masur, J.S.}, journal={Journal of Legal Analysis}, volume={2}, number={2}, pages={687--734}, year={2010}, 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 patentBe Free: 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.}, discipline={Law, Policy}, research_type={Discussion, Commentary}, industry={General}, thicket_stance={Assumed Pro}, thicket_stance_extract={Third, there are patents of low private value and low (or negative) social value; this class of patents includes both discarded, unenforced patents that increase the search costs and risk imposed on commercial firms—the ‘‘patent thicket,’’ in popular parlance (Shapiro 2001)—and worthless, largely unenforceable patents usable only for extracting nuisance settlements (see Section 2.2.).}, thicket_def={Refs Shapiro}, thicket_def_extract={Third, there are patents of low private value and low (or negative) social value; this class of patents includes both discarded, unenforced patents that increase the search costs and risk imposed on commercial firms—the ‘‘patent thicket,’’ in popular parlance (Shapiro 2001)...}, tags={Screening Patents, administrative costs of patents}, filename={Masur (2010) - Costly Screens And Patent Examination.pdf} } @article{merges2006introductory, title={Introductory Note to Brief of Amicus Curiae in eBay v. MercExchange}, author={Merges, R.P.}, journal={Berkeley Tech. LJ}, volume={21}, pages={997}, year={2006}, abstract={}, discipline={Law}, research_type={Commentary, Discussion}, industry={General, Technology}, 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.}, thicket_def={refs Shapiro}, thicket_def_extract={As the Federal Trade Commission recently explained, innovation in the computer and Internet industry is often incremental and cumulative, and the pace of change is rapid.4 The net result is that each marketable product in this industry may incorporate--often in an incidental, tangential, and sometimes unintentional way-hundreds or even thousands of patented processes. This is commonly described as a "patent thicket": "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology." Carl Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard-Setting, in INNOVATION POLICY AND THE ECONOMY 119, 120-21 (Adam Jaffee et al. eds., 2001); see also To Promote Innovation 2:27-31, 3:2, 34-35, 52-53}, tags={Patent Trolls, injunction}, filename={Merges (2006) - Introductory Note To Brief Of Amicus Curiae In Ebay V MercExchange.pdf} } @article{mertes2010managing, title={Managing the patent thicket and maximizing patent lifetime in vaccine technology}, author={Mertes, M.M.M. and St{\"o}tter, G.}, journal={Human Vaccines}, volume={6}, number={10}, pages={860--863}, year={2010}, 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.}, discipline={Law, Policy}, research_type={Discussion, Commentary}, industry={Vaccine, Biology}, 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.}, thicket_def={}, thicket_def_extract={}, tags={licensing, patent portfolio}, filename={Mertes Stotter (2010) - Managing The Patent Thicket And Maximizing Patent Lifetime In Vaccine Technology.pdf} } @article{meurer2002business, title={Business Method Patents and Patent Floods}, author={Meurer, M.J.}, journal={Wash. UJL \& Pol'y}, volume={8}, pages={309}, year={2002}, abstract={}, discipline={Law}, research_type={Discussion, Commentary}, industry={General}, thicket_stance={Weak Pro}, thicket_stance_extract={Furthermore, a thicket of patents may stultify development of technology because of the cost of securing patent licenses from the large numbers of patent owners.}, thicket_def={def43}, thicket_def_extract={Furthermore, a thicket of patents may stultify development of technology because of the cost of securing patent licenses from the large numbers of patent owners.}, tags={patent pools, business methods patents, patent floods}, filename={Meurer (2002) - Business Method Patents And Patent Floods.pdf} } @book{muris2001competition, title={Competition and Intellectual Property Policy: The Way Ahead}, author={Muris, T.J.}, year={2001}, publisher={US FTC}, abstract={}, discipline={Policy}, research_type={Speech}, industry={General}, thicket_stance={Weakly Anti}, 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={Quotes Shapiro}, thicket_def_extract={According to Professor Carl Shapiro, a "patent thicket" has formed, which he describes as "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology."*}, tags={Competition, FTC, Antitrust}, filename={Muris (2001) - Competition And Intellectual Property Policy The Way Ahead.pdf} } @article{napoleon2009impact, title={Impact of Global Patent and Regulatory Reform on Patent Strategies for Biotechnology}, author={Napoleon, V.J.}, journal={Pitt. J. Tech. L. \& Pol'y}, volume={9}, pages={1}, year={2009}, abstract={}, discipline={Law, Policy}, research_type={Discussion}, industry={Biotechnology}, 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 Mythologies 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.}, thicket_def={Quotes Shapiro}, thicket_def_extract={This pattern, however, has created what some would characterize as a “Patent Thicket”59 in biotechnology. That is, emerging from the overabundance of patent filings and associated activity is “a dense web of overlapping intellectual property rights”}, tags={International Patent System, Patent reform}, filename={Napoleon (2009) - Impact Of Global Patent And Regulatory Reform On Patent Strategies For Biotechnology.pdf} } @article{nielsen2006compulsory, title={Compulsory Patent Licensing: Is It a Viable Solution in the United StatesControl}, author={Nielsen, C.M. and SamardzijaWagner, M.R.}, journal={Mich. Telecomm. \& Tech. L. Rev.}, volume={13}, pages={509}, year={2006}, abstract={As technology continues to advance at a rapid pace, so do the number of patents that cover every aspect of making, using, and selling these innovations. In 1996, to compound the rapid change of technology, the U.S. Supreme Court affirmed that business methods are also patentable. Hence in the current environment, scores of patents, assigned to many different parties, may cover a single electronic device or software—making it increasingly impossible to manufacture an electronic device without receiving a cease and desist letter or other notice from a patentee demanding a large royalty or threatening an injunction. Companies, particularly those in the high technology sector, have been asserting for some time now that they are under constant threat of lawsuits that threaten to shut them down. As a result, numerous radical changes to the U.S. Patent Act and patent practice before the U.S. Patent & Trademark Office have been proposed. Certain proposed changes, however, are meeting with resistance because of a reliance on long term patent protection and exclusivity of patent rights by different industries. Notwithstanding, certain foreign governments have already enacted provisions making it possible to obtain a compulsory patent license in the event that a patentee is not practicing his invention or is simply refusing to license the rights to his invention for a reasonable royalty fee.}, discipline={Law}, research_type={Discussion}, industry={General}, thicket_stance={Assumed Pro}, thicket_stance_extract={Many of the patents overlap and block the use of other patents, thereby creating a “patent thicket”—a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.”3 It is hypothesized that patent thickets increase transactional costs and stifle innovation by making it more expensive and difficult to bring new developments to the market.}, thicket_def={Quotes Shapiro}, thicket_def_extract={Many of the patents overlap and block the use of other patents, thereby creating a “patent thicket”—a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.”}, tags={Compulsory Licensing, Royalties}, filename={Nielsen Samardzija (2006) - Compulsory Patent Licensing.pdf} } @article{rai2003engaging, title = {Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform}, author = {Rai, Arti K.Polk}, journal = {Columbia Law Review}, volume = {103}, number = {54}, pages = {pp. 1035-1135}, abstract = {The Court of Appeals for the Federal Circuit, charged with adjudicating appeals in patent cases, has adopted an unusual approach that arrogates power over fact finding while it simultaneously invokes rule-formalism. Although the Federal Circuit's approach may be justified by the fact-finding and policy application deficiencies of the trial courts and the Patent and Trademark Office (PTO), it has had a negative impact on innovation policy and has resulted in a patent system that is sorely in need of reform. This Article argues that because of the interdependence of the various institutions within the patent system, reform of the system must be both multi-institutional and closely attentive to the institutional competence of the system's actors. Although Congress should clearly bolster the PTO's fact-finding abilities, giving plenary responsibility over factual questions to the PTO would not be cost effective. Accordingly, Congress should endow the system with improved fact-finding expertise through the institution of specialized trial courts. As for actual policy formulation, each of the available institutional options--the legislature, the PTO, and the courts--has substantial associated liabilities. On balance, however, the Federal Circuit is probably best positioned to formulate patent policy, so long as the fact-finding expertise of inferior institutions is bolstered and additional appellate mechanisms are instituted. By paying attention to institutional design and revising our institutions accordingly, we can achieve the patent system we should have had all along.}, year = {2003}, publisher = {Columbia Law Review Association, Inc.}, copyright = {Copyright © 2003 Columbia Law Review Association, Inc.}, discipline={Law}, research_type={Discussion, Theory}, industry={General}, thicket_stance={Neutral}, thicket_stance_extract={Defensive patenting has become particularly prominent in certain industries like the semiconductor industry, where innovation is cumulative, and a thicket of relevant patents often exists. See Bronwyn H. Hall & Rosemarie Ham Ziedonis, The Patent Paradox Revisited: An Empirical Study of Patenting in the U.S. Semiconductor Industry, 1979995-1995, 32 RAND J. Econ. 101, 104 (2001). In such industries, firms gain freedom to operate through defensive patenting. Indeed, within the semiconductor industry, it appears that much of the increase in patenting per R&D dollar over the last two decades has been the consequence of defensive patenting. See id. (noting that firms "appear to be engaged in 'patent portfolio races' aimed at reducing concerns about being held up by external patent owners and at negotiating access to external technologies on more favorable terms"). According to Hall and Ziedonis, this increase in defensive patenting "is causally related to the pro-patent shift in the U.S. legal environment in the 1980s." Id. I discuss this alleged "pro-patent" shift infra Part III.B.}, thicket_def={References Heller/Eisenberg, Multiple overlapping patents}, thicket_def_extract={Moreover, the guidelines on utility incorporate, at least implicitly, economic concerns that setting the utility standard too low could impede scientific progress by creating a transaction-cost-heavy thicket of patents on basic research}, tags={Patent reform}, filename={Rai (2003) - Engaging Facts And Policy.pdf} } @article{schmalensee2009standard, title={Standard-Setting, Innovation Specialists And Competition Policy}, author={Schmalensee, R.}, journal={The Journal of Industrial Economics}, volume={57}, number={3}, pages={526--552}, year={2009}, publisher={Wiley Online Library}, abstract={Using a simple model of patent licensing followed by product-market competition, this paper investigates several competition policy questions related to standard-setting organizations (SSOs). It concludes that competition policy should not favor patent-holders who practice their patents against innovation specialists who do not, that SSOs should not be required to conduct auctions among patent-holders before standards are set in order to determine post-standard royalty rates (though less formal ex ante competition should be encouraged), and that antitrust policy should not allow or encourage collective negotiation of patent royalty rates. Some recent policy developments in this area are discussed.}, discipline={Econ}, research_type={Theory}, industry={General}, thicket_stance={Weakly Anti}, 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={References Shapiro}, thicket_def_extract={}, tags={Standard Setting, Antitrust Policy}, filename={Schmalensee (2009) - Standard Setting Innovation Specialists And Competition Policy.pdf} } @article{schmidt2007negotiating, title={Negotiating the RNAi patent thicket}, author={Schmidt, C.}, journal={Nature biotechnology}, volume={25}, number={3}, pages={273--280}, year={2007}, publisher={New York, NY: Nature Pub. Co., 1996-}, abstract={Patent disputes haven’t materialized in the RNAi field yet, but once products near the market, it might be a different story. Charlie Schmidt investigates.}, discipline={Biology}, research_type={Discussion}, industry={Biology}, thicket_stance={}, thicket_stance_extract={}, thicket_def={}, thicket_def_extract={}, tags={RNA Interface, Licensing, Royalties}, filename={Schmidt (2007) - Negotiating The Rnai Patent Thicket.pdf} } @article{shand2007trends, title={Trends in intellectual property and nanotechnology: implications for the global south}, author={Shand, H. and Wetter, K.J.}, journal={Journal of Intellectual Property Rights}, volume={12}, pages={111--117}, year={2007}, abstract={The race is on to win exclusive monopoly patents on nano-scale materials, devices and processes. The US National Science Foundation predicts that the immensely broad power and scope of nano-scale technologies will revolutionize manufacturing across all industry sectors - capturing a $1 trillion market within six or seven years. 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. Industry analysts warn that, 'IP roadblocks could severely retard the development of nanotechnology.' After a decade of confusion and controversy over biotech patents, South governments are now facing a newer, bigger technology wave. By 1 July 2013 even 'least developed' countries will be obligated by the World trade Organization's Trade-Related Asapects of Intellectual Property (TRIPS) to acccommodate nanotechnology-related inventions. Despite rosy predictions that nanotech will provide a technical fix for health, sustainable energy, and environmental security in the South, researchers in the developing world are likely to find that participation in the proprietary 'nanotech revolution' is highly restricted by patent tolbooths, obliging them to pay royalties and licensing fees to gain access.}, discipline={Law}, research_type={Discussion}, industry={Nanotechnology}, 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.}, thicket_def={}, thicket_def_extract={}, tags={TRIPS, developing Countries}, filename={Shand Wetter (2007) - Trends In Intellectual Property And Nanotechnology.pdf} } @article{sharrott2006intellectual, title={Intellectual Property Developments in Biochip Nanotechology}, author={Sharrott, D. and Sayeed, H.A.}, journal={Nanotech. L. \& Bus.}, volume={3}, pages={20}, year={2006}, publisher={HeinOnline}, abstract={Microfluidics is the science of devices and processes dealing with fluid volumes on the nanoliter or picoliter scale. The most popular and commercially visible applications of this technology consist of DNA microarrays, or “biochips.” DNA microarrays are most useful for their fast, efficient processing of multiple DNA sequences of genes. In this article, Douglas Sharrott and Hassen Sayeed explain the various intellectual property (“IP”) issues relating to DNA microarrays and microfluidics applications. They also examine alternative methods of protecting valuable IP, such as trade secret and “mask work” protection under the copyright laws. Finally, Sharrott and Sayeed discuss a representative case that teaches valuable lessons to those in the microfluidics industry to help guide IP strategies.}, discipline={Law}, research_type={Commentary, Discussion}, industry={Nanotechnology}, thicket_stance={Weakly Pro}, thicket_stance_extract={Until recently, the most significant IP concern about biochips involved the patentability of expressed sequence tags (“ESTs”)—gene fragments for which no known functional utility exists. When the National Institutes of Health applied for the first EST patents in 1991, the possibility arose that such patents could overlap with and possibly invalidate later patents directed toward fully-sequenced, expressed genes.8 Commentators describe this proliferation of overlapping patents as a potential “patent thicket”—a tangle of intellectual property rights through which companies must cut to bring new technologies to market.9 In the thicket, scientists and corporations might be forced to renegotiate constantly for the right to exercise any individual gene patent, or to use commercial products obtained from that gene.}, thicket_def={Refs Shapiro}, thicket_def_extract={Commentators describe this proliferation of overlapping patents as a potential “patent thicket”—a tangle of intellectual property rights through which companies must cut to bring new technologies to market.9 In the thicket, scientists and corporations might be forced to renegotiate constantly for the right to exercise any individual gene patent, or to use commercial products obtained from that gene.}, tags={biochips, trade secrets}, filename={Sharrott Sayeed (2006) - Intellectual Property Developments In Biochip Nanotechology.pdf} } @article{serafino2007survey, title={Survey of patent pools demonstrates variety of purposes and management structures}, author={Serafino, D.}, journal={Knowledge Ecology International. http://keionline. org/content/view/69/1}, year={2007}, abstract={The collective management of intellectual property rights is a term used to describe methods of managing large portfolios of intellectual property assets, including patents, copyrights, trademarks, know-how and data. Patent pools are one such mechanism. A “patent pool” is an agreement between two or more patent owners to license one or more of their patents to one another or to third parties.2 In its 2001 White Paper on Patent Pools, the USPTO said, “A patent pool allows interested parties to gather all the necessary tools to practice a certain technology in one place, e.g, ‘one-stop shopping,’ rather than obtaining licenses from each patent owner individually.”3 The following paper provides a summary of features of 35 patent pools organized or proposed from 1856 to the present. Each of the patent pools was organized in response to a particular set of policy objectives and circumstances. Their purposes were heterogeneous. Some were organized in order to promote the interests of monopolists or cartels. Others were organized to promote competition and benefit the users of patents. There are pools that manage the patents on standards for new information technologies, that enhance R&D for new biomedical or biotechnology agricultural products, or that seek to promote other objectives. Some pools are organized by patent owners, others by manufacturers, and yet others by non-profit institutions, including governments. There is no single reason for creating a patent pool and no single way to manage a patent pool.}, discipline={Econ}, research_type={Written Theory, Empirics}, industry={General, Technology}, thicket_stance={Assumed Pro}, thicket_stance_extract={The Supreme Court ruled in 1947 that the division of the market by territory violated American antitrust laws, and included the contract between National Lead and DuPont in this ruling, which read, in part...The court also determined 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.”}, thicket_def={}, thicket_def_extract={}, tags={patent pools}, filename={Serafino (2007) - Survey Of Patent Pools Demonstrates Variety Of Purposes And Management Structures.pdf} } @article{somaya2003strategic, title = {Strategic Determinants of Decisions Not to Settle Patent Litigation}, author = {Somaya, Deepak}, journal = {Strategic Management Journal}, volume = {24}, number = {1}, pages = {pp. 17-38}, 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.1034},
year = {2003},
publisher = {Wiley}Columbia Law Review Association, copyright = {Copyright © 2003 WileyInc.}, abstract={Settlement outcomes in patent litigation are modeled as resulting from strategies pursued This Essay challenges a central tenet of the recent criticism of intellectual property rights: the suggestion that the control conferred by firms with their patented technologiessuch rights is detrimental to the continued flourishing of a public domain of ideas and information. Hypotheses are derived for two types In this Essay, Professor Wagner argues that such theories understate the significance of influences: the use intangible nature of patents as isolating mechanisms to protect valuable strategic stakesinformation, and their 'defensive' role in obtaining access thus overlook the contribution that even perfectly controlled intellectual creations make to external technologies through mutual hold-upthe public domain. Parameter estimates from a sample selection probit model provide support for the strategic stakes hypothesesIn addition, while this Essay shows that perfect control of propertized information--an animating assumption in much of the evidence for mutual holdcontemporary criticism--up is inconclusiveboth counterfactual and likely to remain so. Interindustry comparisons show These findings suggest that nonsettlement increasing the appropriability of patent suits information goods is likely to increase, rather than diminish, the quantity of "open" information. Further, the benefits of control in both research medicines fostering coordination and computers is increased by strategic stakes and, enabling flexibility in addition, mutual hold-up appears to play an important role arrangements are essential elements of promoting progress in computer patent suitsa changing world.}, discipline={Econ, ManagementLaw}, research_type={Theory, Empirical, Econometric ModelDiscussion}, industry={ICT, Biotechnology},
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 (MergesControl-talk is of "the second enclosure movement, 1998). On " the other hand, in systems products industries, thickets lurking "tragedy of patents may be necessary to foil attempts to invent around the patentanticommons, and obtain a robust patent position. Moreover, defen sive patenting?" or the building dangers of large "patent port folios may become necessary if rivals, aided by a strong enforcement regime, are able thickets" -not to effectively threaten to hold up a firm's commercial operations mention the phenomenon of litigation efforts (or perhaps social movements?) sporting their own slogans (Hall and Ziedonis, 2001logos).}, thicket_def={Strategic Value, Multiple Overlapping Blocking Patents}, thicket_def_extract={When strong, watertight patents are available, such as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). On "Free the other handMouse, 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" "Create Like It's commercial operations (Hall and Ziedonis1790, 2001)" or "When Copyright Attacks."}, tagsthicket_def={negotiating}#A, filename={Somaya (2003) - Strategic Determinants Of Decisions Not To Settle Patent Litigation.pdf} } @article{somaya2011innovationReferences Shapiro, title={Innovation in Multi-Invention Contexts: Mapping Solutions to Technological and Intellectual Property ComplexityUnspecified Blocking Mechanism}, authorthicket_def_extract={Somaya, D. and Teece, D. and Wakeman, S.}, journal={California Management Review}, volume={53}, number={4}, pages={47--79}, year={2011}, publisher={JSTOR}, abstract={}, discipline={Management}, research_type={Written Theory}, industry={General}, thicket_stance={Pro}, thicket_stance_extract={Scholars such as Michael Heller and Rebecca Eisenberg, Carl Shapiro, and others have drawn attention—arguably too much attention—to the transactional problems created for innovators by such dispersed ownership and the density (or so-called "Patent thickets) of patents.58 Less attention has been paid by those authors " refer to the equally important role of patents for supporting innovation fact that in multi-invention settings. Innovators and entrepreneurs are often among the most enthusiastic supporters many areas of the patent system because they perceive it as providing safeguards from misappropriation of their inventions.59 Research has also shown that innovators are often able to devise “working solutions” to navigate patent access concerns, and that patents may in turn be crucial for enabling transactions in technology.60}, thicket_def={References Heller/Eisenberg}, thicket_def_extract={Indeed, the plethora great numbers of IP implicatedrelated patents exist at any particular time, and the resulting complex licensing required, has led some academics many might have applicability to despair that some sections of the economy have—or are about to—experience a “tragedy of the anticommons” (iany commercial product.See, e.g, Carl Shapiro, no one will use the patented technology because licensing the required technologies is simply too challenging or too expensive).}, tags={multi-invention#Private Mechanisms, negotiation, licensing, strategyPatent Intermediaries}, filename={Somaya Teece Wakeman Wagner (20112003) - Innovation In Multi Invention Contexts.pdfInformation Wants to be Free}
}
