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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{allison2003businessking2007clearing, title={Clearing the Patent Thicket: The Business Method Supreme Court and Congress Undertake Patent MythReform}, author={AllisonKing, JS.R. and Tiller, E.HM.}, journal={Berkeley Intell. Prop. \& Tech. LJ}, volume={189}, pages={98713--13}, year={20032007}, 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.},
@article{carrier2012roadmaplee2006examining, title={A Roadmap to Examining the Viability of Patent Pools for the Smartphone Growing Nanotechnology Patent Wars and FRAND LicensingThicket}, author={CarrierLee, MA.}, journal={CPI Antitrust ChronicleNanotech. L. \& Bus.}, volume={23}, pages={317}, year={20122006}, abstract={The smartphone industry today A patent pool is characterized by a thicket cooperative arrangement between several patent holders, all of patents them necessary and wars based on those patents. Every day brings fundamental to the creation of a new lawsuit product or development between Appleprocess, HTCwhere all of the patents can be licensed at a single price. They are an attractive option for fragmented patent landscapes, Microsoftwhere they are created in hopes of avoiding the high cost associated with acquiring numerous licensing agreements, Motorola Mobility (“MMI”)avoid widespread patent disputes, Nokiaand help create a standard, amongst other reasons. This issue is especially relevant to the emerging scientific field of nanotechnology, where there is widespread concern about the fragmentation of the intellectual property landscape. This paper aimed to develop a general list of criteria to aid in determining whether patent pools are a viable option for a market by examining relevant literature and Samsungconducting interviews; it was then applied to the dendritic nanotechnology’s drug delivery and pharmaceutical applications. The lawsuits span numerous courts completed list had nine criteria and several continents, when applied to the dendritic nanotechnology market, concludes that a patent pool will not be necessary for the continued advancement of this application. And they often pit Apple or Microsoft on The primary reason is that a huge amount of patents are in control of one side and manufacturers of Google’s Android operating system—HTCcompany alone, MMIDendritic Nanotechnologies, and Samsung—on seem to be the otherprimary source for the most highly sought after dendritic patents.},
@article{cowin2007policylerner2005theeconomics, title={Policy Options for the Improvement The Economics of the European Patent SystemTechnology Sharing: Open Source and Beyond}, author={CowinLerner, R. Josh and Van der EijckTirole, Jean}, journal = {The Journal of Economic Perspectives}, W volume = {19}, number = {2}, pages = {pp. and Lissoni99-120}, F 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 Lotzevolves. At the same time, it is heartening to us how much of open source activities can be understood within existing economic frameworks, Pdespite the presence of claims to the contrary. The labor and Van Overwalleindustrial organization literatures provide lenses through which the structure of open source projects, the role of contributors, G. and Schovsbo, Jthe movement's ongoing evolution can be viewed.}, journalyear ={Scientific Technology Options Assessment (STOA) of the European Parliament2005}, yearpublisher ={2007American Economic Association}, abstractcopyright ={Copyright © 2005 American Economic Association}, discipline={PolicyEcon}, research_type={Empirical, Industry DataTheory},
@articleincollection{d2009poolslerner2008public, title={Public Policy Toward Patent Pools, Thickets and Open Source Nanotechnology}, author={D'SilvaLerner, J. and Tirole, J.}, journalbooktitle={European Intellectual Property Review}Innovation Policy and the Economy, volume={31Volume 8}, numberpages={6157--186}, pagesyear={300--3062008}, yearpublisher={2009University of Chicago Press}, abstract={Discusses how to promote the development The past two decades have seen an explosion of nanotechnology by overcoming problems with the patent systemawards and litigation across a wide variety of technologies, which numerous commentators have suggested has socially detrimental conseuqences. Considers how Patent pools, in which owners of intellectual property share patent thickets rights with each other and third parties, have been proposed as a way in which firms can address this patent trolls may discourage innovative work-thicket problem. Describes The paper discusses the advantages current regulatory treatment of licensing patents by means patent pools and highlights why a more nuanced view than focusing on the extreme cases of a patent poolperfect complements and perfect substitutes is needed. Examines to what extent inventors can benefit from It also highlights the experience importance of the openregulators' stance towward independent licensing, grantback policies, and royalty control. We also present case-study and large-source software movementsample empirical evidence.}, discipline={LawEcon}, research_type={DiscussionTheory}, industry={NanotechnologyGeneral}, thicket_stance={Weak Pro}, thicket_stance_extract={In most cases this will deter Many observers have suggested that patent-thicket problems where key patents are widely held affect many smaller startups and research centres from attempting emerging industries. Patent thickets may lead to traverse the three problems. First, royalty stacking may result: each individual patent thicketholder may charge a royalty that seems reasonable when viewed in isolation, but together they represent an unreasonable burden. Also broadSecond, overlapping and conflicting thickets are likely even if other firms agree to lead 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 lengthy and costly patent battlesbe time consuming. Patent pools thus offer a one-stop shop through which these problems can be avoided.}, thicket_def={def30#Aa-T, Diversely-Held, Royalty Stacking, Transaction Costs}, thicket_def_extract={When multiple organisations 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 own individual patents patent holder may charge a royalty that are collectively necessary for a particular technologyseems reasonable when viewed in isolation, but together they represent an unreasonable burden. Second, even if other firms agree to license their competing intellectual property rights form patents at a "patent thicket". (cites: Gavin Clarkson and David DeKortemodest rate, "The Problem of Patent Thickets in Convergent Technologies" [2006] Anna hold-out problem may result if a single firm then sets a high license fee for its technology. N.Y. AcadFinally, the very process of arranging the needed licenses may prove to be time consuming. SciPatent pools thus offer a one-stop shop through which these problems can be avoided. 1093, 181.)B}, tags={patent pools#Private Mechanisms, Pools, Licensing, open sourcingGrant-back}, filename={DSilva Lerner Tirole (20092008) - Public Policy Toward Patent Pools Thickets And Open Source Nanotechnology.pdf}
@article{eisenmann2008managinglerner2007impact, title = {Managing Proprietary and Shared PlatformsWhat is the Impact of Software Patent Shifts? Evidence from Lotus v. Borland}, author = {EisenmannLerner, J. and Zhu, Thomas RF.}, journal = {California Management ReviewInternational Journal of Industrial Organization}, volume = {5025}, number = {43}, pages = {pp. 31511--53529}, year={2007}, abstract = {In a platform-mediated networkEconomists have debated the extent to which strengthening patent protection spurs or detracts from technological innovation. This paper examines the reduction of software copyright protection in the Lotus v. Borland decision. If patent and copyright protections are substitutes, users rely on a common platform (provided by weakening of one or more intermediaries) that encompasses infrastructure and rules required by users to transact form should be associated with each an increased reliance on the other. A fundamental design decision for We find that the firms that aspire to develop platform-mediated networks is whether to preserve proprietary control or share affected by the diminution of copyright protection disproportionately accelerated their platform with rivalspatenting in subsequent years. A proprietary platform has a single provider that solely controls its technology ( But little evidence can be found for example, Federal Express, Apple Macintosh, or Google). With a shared platform such as Visa, DVD, or Linux, multiple any harmful effects on firms collaborate in developing the platform's technology performance and then compete incentive to innovate: in offering users different but compatible versions of fact, the platform. This article examines factors that favor proprietary versus shared models when designing platforms increased reliance on patents is correlated with growth in measures such as sales and then explains how management challenges differ for proprietary and shared platform providers when mobilizing new networksR&D expenditures.}, year = {2008}, publisher = {University of California Press}, copyright = {Copyright © 2008 University of California Press}, discipline={ManagementEcon}, research_type={DiscussionEmpirical}, industry={TelevisionSoftware}, thicket_stance={Weak Pro}, thicket_stance_extract={A second type of IP-based claim can occur when shared platforms rely on The environment is a complex one: many different patented technologiesother changes, each such as the widespread dissemination of which has no obvious the Internet, may have differentially affected firms during this period. While our result contradicts the claim by Bessen and Hunt (2004) that software patents substitutefor 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. Firms may find themselves in a Therefore, the patent "thicket," in which several parties are able problem – an overlapping set of patent rights requiring those seeking to derail a shared platform by threatening to withhold necessary contributions.12 Each firm can issue an ultimatumcommercialize new technology obtain licenses from multiple patentees (Shapiro, demanding a large share of the platform's added value2001) – could still exist}, thicket_def={Refs #A, #B, References Shapiro, Diversely-Held, Overlapping Patents}, thicket_def_extract={A second type of IP-based claim can occur when shared platforms rely on many different patented technologiesTherefore, each the patent thicket problem – an overlapping set of which has no obvious substitute. Firms may find themselves in a patent "thicket," in which several parties are able rights requiring those seeking to derail a shared platform by threatening to withhold necessary contributions.12 Each firm can issue an ultimatumcommercialize new technology obtain licenses from multiple patentees (Shapiro, demanding a large share of the platform's added value2001) – could still exist}, tags={Shared Platform, Licensing#IPR Reform}, filename={Eisenmann Lerner Zhu (20082007) - Managing Proprietary And Shared PlatformsWhat Is The Impact Of Software Patent Shifts.pdf}
@article{gilbert2010tiesliu2008internal, title={Ties That BindInternal Sequential Innovations: Policies to Promote (Good) How does Interrelatedness Affect Patent PoolsRenewal?}, author={GilbertLiu, K. and Arthurs, RJ.and Cullen, J. and Alexander, R.}, journal={Antitrust Law JournalResearch Policy}, volume={37}, number={5}, pages={946--953}, year={20102008}, abstract={The value of patented innovations has attracted substantial research attention, especially in the context of patent renewal. However, research often assumes that a firm’s patented innovations are independent from each other.We draw upon evolutionary economics and suggest that some of a firm’s patents share important genealogical relationships, which we refer to as internal sequential innovations.We propose internal sequential innovations are more valuable and therefore more likely to be renewed than stand-alone innovations. We examine our hypotheses from a dataset of US pharmaceutical and biotechnology patents. The results confirm our hypotheses at both the patent and the firm levels.}, discipline={LawEcon}, research_type={DiscussionEmpirical}, industry={GeneralPharma, Biotech}, thicket_stance={ProAssumed Anti}, thicket_stance_extract={Patent thickets are common to many high-technology industries in which With the power of the manufactureintellectual regime, use, or sale internal sequential innovations offer a larger thicket of protection that can define the underlying technologies in a device or process may require rights to hundreds set of overlapping 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={Refs #B1, References Shapiro, Overlapping Patents, Cummulative Invention}, thicket_def_extract={A “patent With the power of the intellectual regime, internal sequential innovations offer a larger thicket,” of protection that can define the underlying technologies in which many independent patent holders have rights that cover a technologyset of overlapping patents. That is, is one example a sequence of patents revolving around the same technological trajectory can define the intellectual property more precisely and protect it with an enlarged degree of coverage. The holder of such patented innovations can thereafter exclude competitors from the collective scope of the claims laid out in all of the anticommonssequential patents (Wagner and Parchomovsky, 2005). In contrast, stand-alone innovations are more likely to be invented around and the underlying intellectual property has a higher hazard of being appropriated (Shapiro, 2000).}, tags={Patent Pools#Firm Strategy, Value from Position/Portfolio, Defensive/Offensive Patenting, #Private Mechanisms, Regime Selection, Sequential Innovation, #IPR Reform, Renewals}, filename={Gilbert Liu (20102008) - Ties That Bind Policies To Promote Good Patent PoolsInternal Sequential Innovations.pdf}
@article{holman2005biotechnologymeniere2008patent, title={Biotechnology's Prescription for Patent ReformLaw and Complementary Innovations}, author={HolmanM{\'e}ni{\`e}re, C.MY.}, journal={J. Marshall Rev. Intell. Prop. L.European Economic Review}, volume={552}, number={7}, pages={i1125--1139}, year={20052008}, abstract={On June 8The patent system was initially designed to provide incentives to develop stand-alone innovations in fi?elds such as mechanics, 2005chemicals or pharmaceuticals. Its application is therefore problematical in more recent ?elds such as biotechnology and ICT industries, Congressman Lamar Smith introduced Hwhere innovation patterns are different. A well-known problem concerns cumulative innovations.RPatent 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). 2795Another issue concerns complementary innovations, which are the “Patent Reform Act focus of 2005the paper. When ?final products embody several complementary innovations,” aimed at improving the quality and certainty scattering of issued patentsbetween various owners jeopardizes the commercial exploitation of the products because of negotiation and royalty stacking issues (Merges & Nelson, 1990; Heller & Eisenberg, 1998; Shapiro, simplifying 2001). In biotechnology, this is the case of therapeutic proteins or genetic diagnostic tests that require the patent procurement processuse of multiple patented gene fragments (Heller & Eisenberg, harmonizing U1998).S. law with international practiceIt is also very frequent in ICT industries such as electronics, computer hardware and reining in abusive software, where ?firms have to navigate "patent enforcement practicesthickets" (Shapiro, 2001). Congress has set the legislation aside Shapiro (2001) reports, for the time beingexample, but will likely revisit that in the issue again shortlysemi-conductor industry ?rms receive ?thousands of patents each year and manufacturers can potentially infringe on hundreds of patents with a single product". The biotechnology situation is similar in the U.S. software industry, one where there are ?potentially dozens or hundreds of patents covering individual components of a product?(FTC, 2003). I study the problem of the fastest growing sectors production of complementary innovations in a model of dynamic R&D competition between two ?firms, and argue that in the United States economysome cases complementary innovations should not be patentable as such, strongly opposes many of the proposed reformsbut 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 paper considers approach echoes several papers on cumulative innovations where patentability requirements are de?ned as the Congressional testimonies of the Biotechnology Industry Organization need to develop two or more successive innovations before obtaining a patent (“BIO”) Scotchmer and other representatives of biotechnology’s interestsGreen, 1990; Hunt, 1995; O?Donoghue, Scotchmer and finds that Thisse, 1998; Denicolò, 2000). As regards complementary innovations, the optimal patenting rule depends on a trade-off between the industry’s adamant opposition pro?fit loss due to many scattered complementary patents, and the possible bene?fit of patent disclosure. The scattering of the proposals is driven largely by complementary patents between different owners creates a belief that biotechnology patents function primarily double marginalization issue. Since each patentee behaves as tools for securing investment fundinga monopolist, and the fear Cournot (1838) theorem predicts that investment in biotechnology will 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 adversely impacted if investors perceive 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 reform disclosure has weakened 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 rights legal de?nition of patent owners and inventorsthe "inventive step" patentability requirement. The paper also is structured in six sections. First, the model is introduced in Section 2. Section 3 then considers how the biotechnology sector might case in which innovations can be patented separately, while Section 4 focuses on the case in which they must be impacted if bundled prior to patenting. Section 5 compares the social outcomes of the proposed reforms are enacted into lawtwo require- ments. Finally, Section 6 concludes and describes some recent biotechnology cases wherein discusses the outcome might have been different if policy implications of the reforms had already been in placemodel.}, discipline={Law, Policy ReportEcon}, research_type={Discussion, Written Theory}, industry={BiotechnologyICT, Biotech}, thicket_stance={AntiAssumed Pro}, thicket_stance_extract={If in fact a patent thicket is significantly impeding biotechnology research and development, one might expect The present paper upholds policy arguments that organizations representing emphasize the interests importance of a severe application of biotechnology, such this patentability requirement as BIOa means to limit the size of "patent thickets" and to promote innovation in sectors where complementary innovations are frequent (Jaffe, WARF2000; Barton, and Genentech2003; FTC, would be advocating for reforms that would address the problem2003)... IndeedWhen ?final products embody several complementary innovations, the biotechnology industry has never been shy about advocating for legislative action to address its concerns.112 But instead, these groups tend to be among scattering of patents between various owners jeopardizes the most adamant defenders commercial exploitation of the status quo products because of negotiation and strong patent rights. One might infer from this that a patent thicket is not in fact substantially impeding biotechnology.royalty stacking issues (Merges & Nelson, 1990; Heller & Eisenberg, 1998; Shapiro, 2001)}, thicket_def={refs Heller Eisenberg#A-T, References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={Various commentators It is also very frequent in ICT industries such as electronics, computer hardware and software, where firms have proposed to navigate "patent thickets" (Shapiro, 2001)...The present paper upholds policy arguments that emphasize the importance of a proliferation severe application of patents poses this patentability requirement as a serious threat means to biotechnology research by creating a limit the size of "patent thicket, sometimes referred thickets" and to as a “patent anticommonspromote innovation in sectors where complementary innovations are frequent...”106 The theory is especially associated with articles published by Heller and Eisenberg in 1998When ?final products embody several complementary innovations, the scattering of patents between various owners jeopardizes the commercial exploitation of the products because of negotiation and Eisenberg and Rai in 2002royalty stacking issues... The scattering of complementary patents between different owners creates a double marginalization issue.107}, tags={Critique on Complements, #IPR Reform Proposals, Continuation, First innovator, Injunction, Stricter Patenting Requirements}, filename={Holman Meniere (20052008) - Biotechnologys Prescription For Patent ReformLaw And Complementary Innovations.pdf}
@article{holman2006clearingmaskus2006reforming, title={Clearing a path through Reforming US Patent Policy: Getting the patent thicketIncentives Right}, author={HolmanMaskus, CK.E.}, journal={CellInnovations: Technology, Governance, Globalization}, volume={1251},
@article{hussinger2006silencemeurer2002business, title={Is silence golden? Business Method Patents versus secrecy at the firm leveland Patent Floods}, author={HussingerMeurer, KM.J.}, journal={Economics of Innovation and New TechnologyWash. UJL \& Pol'y}, volume={15}, number={8}, pages={735309--752342}, year={2006}, publisher={Taylor \& Francis2002}, abstract={In the 1990s, patenting schemes changed in many respects: up- coming new technologies accelerated the shift from price competition towards competition based on technical inventions, a worldwide surge in patenting took place, and the ‘patent thicket’ arose as a conse- quence of strategic patenting. This study analyzes the importance of patenting versus secrecy as an effective alternative to protect intellec- tual property in the inventions’ market phase. The sales figure with new products is introduced as a new measure for the importance of IP protection tools among product innovating firms. Focusing on the German manufacturing in 2000, it turns out that patents are impor- tant to protect intellectual property in the market, whereas secrecy seems to be rather important for early-stage inventions.}, discipline={EconLaw}, research_type={empirical, econometric modelDiscussion}, industry={General, Manufacturing}, thicket_stance={neutralWeak Pro}, thicket_stance_extract={A further Furthermore, a thicket of patents may stultify 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 technology because 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 cost of patents motivated by an increased need for IP protection and hint at securing patent licenses from the strategic value large numbers of patents to have driven the patent surge. To summarize: on the one hand, recent changes in patenting schemes have caused an elevated need for patents as an IP protection tool. On the other hand, they gained in importance as strategic instrumentsowners.}, thicket_def={refs shapiro#A, References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={Of particular concern, reduced patent quality increases uncertainty about the scope and validity of patents and increases the frequency of patent litigation. The resulting complex network fragility of single patents that bears the many legal pitfalls for start-ups in new markets makes them vulnerable to strategic patent litigation. The threat of patent applicants was given litigation may deter entry or induce exit from the name ‘patent thicket’ (Shapiromarket. Furthermore, 2001). These developments put into question an increased number a thicket of patents motivated by an increased need for IP protection and hint at may stultify development of technology because of the cost of securing patent licenses from the strategic value large numbers of patents patent owners... The other anticompetitive threat is a pool or cross-licensing agreement justified as a way to have driven the cut through a patent surgethicket and economize on transaction costs might actually serve merely to orchestrate collusion on prices...}, tags={patenting secrecy#Private Mechanisms, Pools, #Firm Strategy, Patent Floods, firm strategyDefensive/Offensive Patenting}, filename={Hussinger Meurer (20062002) - Is Silence Golden Business Method Patents Versus Secrecy At The Firm LevelAnd Patent Floods.pdf}
@article{jensen2004achievingpalangkaraya2011misclassification, titleTitle ={Achieving the optimal power of patent rightsMisclassification Between Patent Offices: Evidence From A Matched Sample Of Patent Applications}, author={JensenPalangkaraya, P.H. Alfons and Webster, EElizabeth and Jensen, Paul H.}, journal={Australian Economic The Reviewof Economics and Statistics}, volume={3793}, number={43}, pages={419-pp. 1063-426}, year={2004}, publisher={Wiley Online Library1075}, abstract={In this paper, we identify three policy instruments governments have at their disposal to affect estimate the power extent of misclassification in patent rights to prevent imitation: examination decisions between the size of European Patent Office (EPO) and the Japanese Patent Office (JPO), that is, applications that are incorrectly refused a patent or incorrectly granted a patent. Using a proxy for inventive step used to make as the predictor of the patent granting correct decision, we find that the rigour of probability that a "true grant" application is refused is 6.1%, while the patent examination process and the predisposition of the courts to affirm the patent office's decisionprobability that a "true refusal" application is granted is 9.8%. We develop a simple framework to analyse the effects However, we find no evidence of changing these policy instruments on ex ante investment in invention in the light an increasing trend of recent concerns about granting "bad" patents at the potential effects of socially undesirable patentsEPO and JPO.}, year = {2011}, publisher = {The MIT Press}, copyright = {Copyright © 2011 The MIT Press}, discipline={Econ}, research_type={Written TheoryEmpirical},
@articleinproceedings{king2007clearingrubinfeld2004strategic, title={Clearing the Patent ThicketThe Strategic Use of Patents: The Supreme Court and Congress Undertake Patent ReformImplications for Antitrust}, author={KingRubinfeld, SD.ML.}and Maness, journal={IntellR. Prop. \& Tech. LJ}, volumebooktitle={9}Antitrust, pages={13--13Patent and Copyright Conference}, year={20072004},
thicket_stance={Weak Pro},
thicket_stance_extract={Single company acquisition of a dense web of overlapping patents-patent thickets15-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 skyrocket, companies more frequently enter into arrangements with competitors "not only to recover their investment from creating patented products but also to avoid the patent landmines that line the path of innovation."},
thicket_def={def34},
thicket_def_extract={A firm with a large patent portfolio enveloping a competitor's key technologies-one that could be termed a "patent thicket"-has the potential to use it to suppress competition 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 infringement},
tags={antitrust, patent misuse},
filename={Leaffer (2009) - Patent Misuse And Innovation.pdf}
}
@article{lee2006examining,
title={Examining the Viability of Patent Pools for the Growing Nanotechnology Patent Thicket},
author={Lee, A.},
journal={Nanotech. L. \& Bus.},
volume={3},
pages={317},
year={2006},
abstract={A patent pool is a cooperative arrangement between several patent holders, all of them necessary and fundamental to the creation of a product or process, where all of the patents can be licensed at a single price. They are an attractive option for fragmented patent landscapes, where they are created in hopes of avoiding the high cost associated with acquiring numerous licensing agreements, avoid widespread patent disputes, and help create a standard, amongst other reasons. This issue is especially relevant to the emerging scientific field of nanotechnology, where there is widespread concern about the fragmentation of the intellectual property landscape. This paper aimed to develop a general list of criteria to aid in determining whether patent pools are a viable option for a market by examining relevant literature and conducting interviews; it was then applied to the dendritic nanotechnology’s drug delivery and pharmaceutical applications. The completed list had nine criteria and, when applied to the dendritic nanotechnology market, concludes that a patent pool will not be necessary for the continued advancement of this application. The primary reason is that a huge amount of patents are in control of one company alone, Dendritic Nanotechnologies, and seem to be the primary source for the most highly sought after dendritic patents.},
discipline={Management},
research_type={Written Theory},
industry={Nanotechnology},
@incollectionarticle{lerner2008publicschmalensee2009standard, title={Public policy toward patent poolsStandard-Setting, Innovation Specialists And Competition Policy}, author={LernerSchmalensee, JR. and Tirole}, J. journal={The Journal of Industrial Economics}, booktitlevolume={Innovation Policy and the Economy57}, Volume 8 number={3}, pages={157526--186552}, year={20082009}, publisher={University of Chicago PressWiley Online Library}, abstract={The past two decades have seen an explosion of patent awards and litigation across Using a wide variety of technologies, which numerous commentators have suggested has socially detrimental conseuqences. Patent pools, in which owners simple model of intellectual property share patent rights with each other and third partieslicensing followed by product-market competition, have been proposed as a way in which firms can address this patentpaper investigates several competition policy questions related to standard-thicket problemsetting organizations (SSOs). The paper discusses the current regulatory treatment of It concludes that competition policy should not favor 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-holders who practice their patents against innovation specialists who do not, grantback policiesthat 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 controlrates. We also present case-study and large-sample empirical evidenceSome recent policy developments in this area are discussed.},
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 is increasing concern This article investigates a pool of substitute patents that overlapping patents in the field enable firms to reduce marginal costs of genetics will create a costly and legally complex situation known as a patent thicket, which, along with production. Contrary to the associated issues of accumulating royalty paymentsgeneral belief, can act as a disincentive for innovation. One potential means of preventing this it is for the patent holders to enter into shown that a so-called patent poolof substitute patents may promote competition under certain conditions, such as those established thereby enhancing social welfare in the electronics and telecommunications industriesproduct market. Precedents for these also exist The intuition is that when firms compete in the field of geneticslicensing fees, notably with the patents pertaining resultant low licensing fees discourage firms from licensing to the SARS genomeoutside firms. In this review, we initially address the This leads to fewer licensees than when a patent pool concept in general and its application in genetics. Following this, we will explore patent pools in the diagnostic field in more detail, and examine some existing and novel examples of patent pools in geneticsis formed.}, discipline={Policy ReportEcon}, research_type={DiscussionTheory}, industry={BiotechnologyGeneral}, thicket_stance={Weakly Assumed Pro}, thicket_stance_extract={There is increasing concern that overlapping patents in 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 the associated issues of accumulating royalty payments, can act as a disincentive for innovationdevelopment and commercialization.}, thicket_def={def24References Shapiro, Overlapping Patents, Cummulative Invention}, thicket_def_extract={Patent thicket#A, #C1, In the field of economics, patent pools are analyzed by Shapiro (2000). The intellectual property portfolios He considers the role of several companies patent pools in “patent thicket,” which means that there are so many patents issued that form a dense web of overlapping intellectual property rightsingle new patent will likely infringe on some other patents. This situation discourages and retards research, development and commercialization.}, tags={patent pools#Private Mechanisms, Pools, Substitutes, Licensing}, filename={Verbeure Kato (20062004) - Patent Pools And Diagnostic TestingPool Enhances Market Competition.pdf}
}
@article{wang2010risekesselheim2005university, title={Rise of the Patent IntermediariesUniversity-based Science and Biotechnology Products}, author={WangKesselheim, A.WS. and Avorn, J.}, journal={Berkeley Tech. LJJAMA: the journal of the American Medical Association}, volume={25293}, number={7}, pages={159850--854}, year={20102005}, publisher={Am Med Assoc}, abstract={Patents are evolving from purely exclusionary instruments into intellectual property assets that play a part in business strategy The pharmaceutical and biotechnology industries have value long relied on pat- enting as transactional goodsthe primary means of allocating ownership and control over new discoveries. Businesses operating Yet, patent protection is a double-edged sword that has major implications for the future of innovation in biomedical science in the intellectual property marketplace have experienced an unprecedented explosion United States. Excessive “upstream” patenting of activity involving these intangible but valuable assets. The new market genes and molecular targets could hinder further research by creating a need for intellectual property has inspired entrepreneurial legal professionals expensive and business professionals alike 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 create new companies produce and market lucrative products without compensating university- or public sector–based innovators. Academic and expand existing ones to act as middlemenother nonprofit research cen- ters would, therefore, encouraging the continued proliferation be deprived of patent transactionsrevenue for pursuing novel therapeu- tics or other seminal research work that may not be patentable. These entities operate and thrive Recent court cases illustrate the inherent conflicts in the intermediary market between buyers allocating ownership and sellers control of intellectual property as well as auxiliary markets related basic biomedical discoveries. Several options exist to avoid the protection complex prob- lems of intellectual propertyoverlapping basic science patents while still rewarding pivotal discoveries and encouraging further innovation. These include establishing ba- sic science patent pools and mandating arbitration arrangements that would assign credit and royalties for biotechnology innovations that depend on prior research that was performed, financed, or both in the public sector.}, discipline={LawGeneral Science},
research_type={Discussion},
industry={ICTBiotech, Pharma}, thicket_stance={Assumed Weak Pro}, thicket_stance_extract={Basic investigations conducted at universities and academic medical centers, usually publicly funded, often pro- duce key insights about the mecha- nisms underlying physiological function and disease states. Private corpora- tions can then commercialize these insights by designing and marketing new therapeutics or other medical tech- nologies based on them. In this age chain of patent thicketsdevelopment, an organization must tread carefully lest it infringe countless patents just by doing business (cites Heller Eisenberg's Anticommons)allowing patenting of each incremental innovation could risk generating a dense thicket of overlap- ping intellectual rights and thus hinder research efforts.}, thicket_def={#B1, References Shapiro, Overlapping Patents, Cummulative Invention}, thicket_def_extract={Carl Shapiro defines Basic investigations conducted at universities and academic medical centers, usually publicly funded, often pro- duce key insights about the mecha- nisms underlying physiological function and disease states. Private corpora- tions can then commercialize these insights by designing and marketing new therapeutics or other medical tech- nologies based on them. In this chain of development, allowing patenting of each incremental innovation could risk generating a patent dense thicket as a “dense web of overlapping overlap- ping 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 1 INNOVATION POLICY AND THE ECONOMY 119, 120 (Adam B. Jaffe et al. edsthus hinder research efforts., 2001)}, tags={#Industry Commentary, #Effects on Academic Research, #IPR Reform, #Private Mechanisms, Pools,}, filename={Wang Kesselheim Avorn (20102005) - Rise Of The Patent IntermediariesUniversity Based Science And Biotechnology Products.pdf}
}
@article{wagner2003informationkim2004vertical, title = {Information Wants to Be Free: Intellectual Property Vertical Structure and the Mythologies of ControlPatent Pools}, author = {WagnerKim, RS.H. Polk}, journal = {Columbia Law Reviewof Industrial Organization}, volume = {10325}, number = {43}, pages = {pp. 995231--1034250}, year = {20032004}, publisher = {Columbia Law Review Association, Inc.Springer}, abstract = {It is well known that patent pools can enhance efficiency by eliminating the com- plements problem. This Essay challenges a central tenet of paper investigates how the recent criticism presence of intellectual property rights: the suggestion that the control conferred by such rights is detrimental to vertically integrated firms affects the continued flourishing economic impact of a public domain of ideas and informationpatent pool. In this EssayWithout a patent pool, Professor Wagner argues that such theories understate the significance presence of integrated firms may either increase or decrease the intangible nature of information, final product price as there are two countervailing effects – reduced double marginalization and thus overlook the contribution that even perfectly controlled intellectual creations make to the public domainraising rivals’ costs. In additionHowever, this Essay shows that perfect control of propertized information--an animating assumption in much of the contemporary criticism--when there is both counterfactual and likely to remain so. These findings suggest that increasing the appropriability of information goods is likely to increase, rather than diminisha patent pool, vertical integration always lowers the quantity of "open" informationfinal product price. FurtherIn conclusion, the benefits of control in fostering coordination and enabling flexibility in arrangements economic efficiency arguments for patent pools are enhanced when some firms are essential elements of promoting progress in a changing worldvertically integrated.}, filename={Wagner (2003) - Information Wants To Be Free.pdf} discipline={LawEcon}, research_type={Theory, Discussion}, industry={ICTGeneral}, thicket_stance={AntiPro}, thicket_stance_extract={ControlWhen distinct firms are selling inputs – all of which are required for pro-talk is duction of "the second enclosure movement," final product – they fail to internalize the lurking "tragedy of effect that their royalty rates have on the anticommons," or the dangers of demand for other inputs. This results in each patent holder setting too high a royalty rate. A "patent thicketspool" -not has begun to attract widespread attention as a solution to mention both the phenomenon of litigation efforts (or perhaps social movements?) sporting their own slogans (transaction cost and logos), such as "Free the Mouse," "Create Like It's 1790," or "When Copyright Attackscomplements problems."}, thicket_def={def25#A-T, References Shapiro, References Heller/Eisenberg, Overlapping Patents, Complementary Inputs, Diversely-Held, Transaction Costs}, 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 "Patent thicketsanticommons" refer by Heller and Eisenberg, 1998). Besides the additional transaction costs incurred in navigating a patent thicket, Shapiro (2001) has called attention to another source of inefficiency: the fact that in many areas complements problem. When distinct firms are selling inputs - all of technology, great numbers which are required for production of related patents exist at any particular time, and many might the final product - they fail to internalize the effect that their royalty rates have applicability to any commercial producton the demand for other inputs. This results in each patent holder setting too high a royalty rate.}, tags={information#Private Mechanisms, Pools, Raising rivals' costs, #Firm Strategy, drmValue from Position/Portfolio, controlDefensive/Offensive Patenting}, filename={Wagner Kim (20032004) - Information Wants to be FreeVertical Structure And Patent Pools.pdf}
}
discipline={Law},
research_type={empiricalDiscussion}, industry={InternetGeneral},
thicket_stance={Assumed Pro},
thicket_stance_extract={A patent thicket All three developments have led to what is just one instance of portfolio value, because perceived as a group of marked increase in junk patents on related technologies can have , as well as what Carl Shapiro has termed a value greater than the sum "patent thicket" -overlapping sets of its parts even if the patents do not create overlapping patent rights in the same product. Re- gardless leading to a maze of the particular manifestation of portfolio value, previous research has not capcross- tured this aspect of patent valuelicensing agreements, and we have not ascertained a way to estimate as well as the effect rise of a patent’s contribution to a portfolio apart from whatever standhold-alone value it may or may not haveup litigation.}, thicket_def={refs shapiro#B, quotes shapiro#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 called “a dense web termed a "patent thicket" - overlapping sets of overlapping intellectual property patent rights that leading to a company must hack its way through in order to actually commercialize new technology.” Carl S. Shapiromaze of cross-licensing agreements, Navigating as well as the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting,rise of hold-up litigation.}, tags={patent quality#IPR Reform, Post-grant Review, internet business methods are patentable#Firm Strategy, inter-industry comparison of patents and prior art referencesWillful Infringement}, filename={Allison Tiller King (20032007) - Clearing The Business Method Patent MythThicket.pdf}
}
@inproceedingsarticle{arundel2003strategickwon2012patent, title={Strategic Patenting}Patent Thicket, author={ArundelSecrecy, A. and Patel, P.Licensing}, booktitleauthor={Background report for the Trend Chart Policy Benchmarking Workshop" New Trends in IPR Policy}Kwon, year={2003I.}, abstractjournal={The Korean Economic Review}, disciplinevolume={Policy28}, research_typenumber={Theory, Statistics from other papers1}, industrypages={General, Public Research}, thicket_stance={Neutral}, thicket_stance_extract={Although there has been extensive discussion in the literature on patent thickets and licensing hold27-ups, we know very little about how serious this problem is today or if it has slowed technological progress.}, thicket_def={Pro, quotes and refs shapiro, heller eisenberg}, thicket_def_extract={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).}, tags={offensive and defensive use of patents, discussion of balancing incentives and strategic patenting}, filename={Arundel Patel (2003) - Strategic Patenting.pdf} } @article{baluch2005re, title={In re Kumar: the First Nanotech Patent Case in the Federal Circuit}, author={Baluch, A.S. and Radomsky, L. and Maebius, S.B.}, journal={Nanotech. L. \& Bus.}, volume={2}, pages={34449}, year={20052012}, abstract={On August 15, 2005, the Court of Appeals for the Federal Circuit decided what is arguably its first nanotech patent case, In re Kumar. Although the court adjudicated the case on procedural grounds, practitioners in the field of nanotechnology will appreciate several substantive themes in this decision. First, the court appears to treat This paper considers a nanotechnology patent appeal no differently than patent appeals in cases involving other technologies. In this regard, the court did not establish any special rules portfolio race where firms compete for nanotechnology complementary patents. Second, the Ucalled a patent thicket.S. Patent and Trademark Qffice ("PTO') is apparently taking the quality of nanotechnology patents seriously, with the Solicitor himself as lead counsel on the brief for the Commissioner of Patents and Trademarks. Third, the court's dicta provides nanotech inventors with guidance for overcoming § 103 obviousness rejections based on overlapping sizes of nanoparticles. Such When firms have an argument, as nanotech commentators had predicted, may be used option to rebut a prima facie case of obviousness wherekeep their innovation secret, as in this case, the claimed nanotech product is made by a different process than paper shows that of the prior art,}, discipline={Law}, research_type={Discussion}, industry={Nanotech}, thicket_stance={Neutral}, thicket_stance_extract={While there exists an equilibrium where firms’ patent propensity is nothing in the patent law to prohibit new strictly between zero and nonobvious claims from overlapping (i.eone., claims in different patents which cover the same product and which 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={Def28}, thicket_def_extract={A large number of patents containing overlapping claims which cover the same product are often referred to as a "patent thicket"}, tags={Kumar case, prior art, patentability}, filename={Baluch Radomsky Maebius (2005) - In Re Kumar The First Nanotech Patent Case In The Federal Circuit.pdf} } @article{baron2010strategicsuch an equilibrium, title={Strategic inputs into stronger patent pools}, author={Baron, J. and Delcamp, H.}, journal={Cerna working paper}, year={2010}, abstract={This article explores what factors determine protection reduces the decision of a patent pool to accept new inputs. We propose a dynamic analysis of 1337 U.S. patent inputs into 7 important pools. This analysis highlights a trade-off between firm and patent characteristics as the determinants of inclusion of patents into poolsfirms’ investment in innovation. For instance we prove that firms already member of the pool or holding large patent portfolios are able to include lower quality patents. These findings can be explained both by bargaining power and information asymmetry. In particularMoreover, as measured by this result does not change even when a new indicator, insiders and firms practicing the technology file patents that are better aligned with the criteria of essentialitylicensing contract is feasible.},
discipline={Econ},
research_type={Empirical, Econometric ModelTheory},
industry={ICT},
thicket_stance={Weak Pro}, thicket_stance_extract={One aspect of this Thus, on the one hand, firms would try to build up their patent proliferation is the « portfolio, or patent thicket » problem5, to defend their product. The On the other hand, such potential patent thicket describes a situation in which holders of different patents that are all necessary for complying with a standard mutually block each other in lawsuits would eventually reduce the implementation of R&D investment, called the standardhold-up problem.}, thicket_def={References shapiroShapiro, quotes shapiroHold-up, Complementary Inputs}, thicket_def_extract={The creator #A, A growing number of studies have emphasized the negative effect of this term defines the patent thicket as « hold-up problem when firms compete for a dense web portfolio of overlapping intellectual property rights that complementary patents, called a company must hack its way through in order to actually commercialize new technologypatent thicket (e.g. » (, Bessen 2004, Hall and Ziedonis 2001, Shapiro, 2001)..}, tags={patent pools#Private Mechanisms, Licensing, #Firm Strategy, Secrecy, Complements, inputsOffensive/Defensive Patenting, theory on pool patent inputsValue from Position/Portfolio}, filename={Baron Delcamp Kwon (20102012) - Strategic Inputs Into Patent PoolsThicket Secrecy And Licensing.pdf}
}
@inproceedingstechreport{baron2011patentlampe2009patent, title={Do Patent Pools and Patent InflationEncourage Innovation? Evidence from the 19th-century Sewing Machine Industry}, author={BaronLampe, JR.L. and PohlmannMoser, TP.}, booktitleyear={Conference Proceedings: 4th ZEW Conference on the Economics of Innovation and Patenting2009}, yearinstitution={2011National Bureau of Economic Research}, abstract={This article provides empirical evidence that Members of a patent pools contribute pool agree to the patent inflation around technological standards. Building upon theoretical propositions drawn from Dequiedt and Versaevel (2007) and use a database of 64.619 declarations set of essential patents as if they were jointly owned by all members and license them as a package to major international Standard Developing Organizations (SDO), we investigate how patent other firms. Regulators favor pools influence the number of patents on as a standard over timemeans to encourage innovation: Pools are expected to reduce litigation risks for their members and lower license fees and transactions costs for other firms. While This paper uses the high number example of patents the first patent pool in ICT technologies is increasingly recognized as hampering U.S. history, the implementation of standards, this is Sewing Machine Combination (1856-1877) to perform the first thorough empirical analysis test of the driving factors effects of this a patent inflationpool on innovation. We control for a wide array of factors relating Contrary to standardization and theoretical predictions, the technological field sewing machine pool appears to isolate have discouraged patenting and innovation, in particular for the incremental effect members 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 extentData on stitches per minute, as an objectively quantifiable measure of innovation, we also find evidence confirm these findings. Innovation for opportunistic patent introductions into existing patent poolsboth members and outside firms slowed as soon as the pool had been established and resumed only after it had dissolved.},
discipline={Econ},
research_type={Theoretical, Empirical, Econometric}, industry={ICTSewing},
thicket_stance={Pro},
thicket_stance_extract={In view of these benefitsAlmost one hundred years later, patent pools have re-emerged as a remedy for industries that are seen as indispensable instruments in cutting through plagued by litigation and patent blocking, which occurs when owners of competing patents prevent the patent thickets in ICTcommercialization of new technologies.}, thicket_def={Refs Shpiro#B, References Shapiro, Unspecified Blocking Mechanism}, thicket_def_extract={Patent Almost one hundred years later, patent pools are seen have re-emerged as a potential solution to inefficiencies resulting from dense “thickets” remedy for industries that are plagued by litigation and patent blocking, which occurs when owners of overlapping competing patents (Shapiroprevent the commercialization of new technologies... Specifically, 2001)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={patents losing quality as more are being added to pools#Private Mechanisms, uncertainty about pools ability to nurture R&DPools}, filename={Baron Pohlmann Lampe Moser (20112009) - Do Patent Pools And Patent InflationEncourage Innovation.pdf}
}
@articletechreport{barpujari2010patentlampe2012patent, title={The patent regime and nanotechnology: issues and challengesDo Patent Pools Encourage Innovation? Evidence from 20 US Industries under the New Deal}, author={BarpujariLampe, IR.}L. and Moser, journal={Journal of Intellectual Property RightsP.}, volumeyear={152012}, numberinstitution={3}, pages={206--213}, year={2010National Bureau of Economic Research}, 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 ReportEcon}, research_type={DiscussionEmpirical}, industry={NanotechnologyGeneral},
thicket_stance={Weak Pro},
thicket_stance_extract={The For example, the creation of a pool may reduce the need for member firms to create patent thicket like situation in nanotechnology created as a result thickets by reducing the threat of many broadlitigation (e.g., building block patents, could seriously impede developing country researchers from engaging in research in nanotechnologyShapiro 2001; Gilbert 2004).}, thicket_def={def27#C1, #D, References Shapiro, Dubious Patents}, thicket_def_extract={When holders We also investigate whether part of such broad the observed decline may be driven by a reduction in lower-quality or “strategic” patents refuse to license their patents or license these on exclusive basis or at prohibitive prices or with restrictive conditions. For example, it leads to the growth of patent thickets impeding downstream research in nanotechnology. The existence creation of a high number of such patents with broad and sometimes, overlapping claims adds pool may reduce the need for member firms to the problem of create patent thickets and leads to by reducing the fragmentation threat of the patent landscapelitigation (e.g., Shapiro 2001; Gilbert 2004)}, tags={problems of patentability#Private Mechanisms, Pools, special categories for nanotech#Firm Strategy, problems with too many restrictions on patent quality.Value from Position/Portfolio}, filename={Barpujari Lampe Moser (20102012) - The Do Patent Regime And Nanotechnology Issues And ChallengesPools Encourage Innovation.pdf}
}
@article{bawa2007nanotechnologylanjouw2004protecting, title={Nanotechnology Patent Proliferation and the Crisis at the US Patent OfficeProtecting Intellectual Property Rights: Are Small Firms Handicapped?}, author={Bawa, RJean O.Lanjouw and Mark Schankerman}, journal={Alb. LJ Sci. \& Tech.Journal of Law and Economics}, volume={1747}, pagesnumber ={6991}, yearpages ={2007pp. 45-74}, 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 Abstract This paper studies the major hurdles is an emerging thicket determinants of patent claims, resulting primarily suits and settlements during 1978–99 by linking information from patent proliferation, but also because of issuance of surprisingly broad patents by the U.S. Patent patent office, the federal courts, and Trademark Office (PTO)industry sources. Adding to this confusion We find that litigation risk is the fact taht the U.S. National Nanotechnology Initiative's widely-cited definition of nanotechnology is inaccurate much higher for patents that are owned by individuals and irrelevant. This has also resulted in the PTO's flawed nanotechnology firms with small patent classification systemportfolios. All Patentees with a large portfolio of this is creating a chaoticpatents to trade, tangled patent landscape in vairous sectors or other characteristics that facilitate “cooperative” resolution of nanotechnology (e.g.disputes, nanoelectronics and nanomedicine) in which competing players are unsure as much less likely to the validity and enforceability of numerous issued patentsprosecute infringement suits. If this trend continuesHowever, it could stifle competition, limit access to some inventions and simply grind commercialization efforts to a haltpostsuit outcomes do not depend on these characteristics. Therefore, reforms These findings show that small patentees are urgently needed at a significant disadvantage in protecting their patent rights because their greater litigation risk is not offset by more rapid resolution of their suits. Our empirical estimates of the PTO to address problems ranging from poor heterogeneity in litigation risk can help in developing private patent quality and questionable examiniation practices litigation insurance to iinadequate search capabilitiesmitigate the adverse affects of high enforcement costs.}, rising attrition year = {2004}, poor employee morale publisher = {The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School}, and a skyrocketing patent application backlog. Only a robust patent system will stimulate the development copyright = {Copyright © 2004 The University of commercially viable nanotechnology products.Chicago}, discipline={Policy ReportEcon}, research_type={Theory, Basic Facts about the industry Empirical}, industry={NanotechnologyGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={Therefore, if the current dense patent landscape becomes more entangled Carl Shapiro emphasizes that firms rely heavily on cross-licensing arrangements and the patent thicket problem worsens, it may prove to be pools as a way of mitigating these problems of the major bottleneck to viable commercializationanticommons (fragmented property rights).47 But small firms are effectively blocked from using these arrangements unless cash payments are accepted for participation, negatively impacting the entire nanotechnology revolutionand typically they are not. For investors, competing in this high-stakes patent game may prove too costly}, thicket_def={refsReferences Shapiro, Barrier To Entry, quotes shapiroUnspecified Blocking Mechanism}, thicket_def_extract={Patent thickets are broadly defined in acadmeic discourse as "a 'dense web of overlapping intellectual property rights #A, Our findings that a company must hack its way through in order to actually commercialize new patent portfolio size and technologyconcentration significantly affect litigation risk have important implications for R&D incentives.'"The threat of costly enforcement can affect R&D investment and patenting strategies.45 This is especially so for small, high-technology firms that are more likely to face capital market constraints.. Such 46 Carl Shapiro emphasizes that firms rely heavily on cross-licensing arrangements and patent thickets, pools as a result way of multiple blocking patentsmitigating 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, naturally discourage and stifle innovation..typically they are not.}, tags={too many rightsholders, cross-licensingValue from Position/Portfolio, enforceability of patents#Firm Strategy, issues with patents in nanotechnologyLitigation Insurance}, filename={Bawa Lanjouw Schankerman (20072004) - Nanotechnology Patent Proliferation And The Crisis At The Us Patent OfficeProtecting Intellectual Property Rights Are Small Firms Handicapped.pdf}
}
@article{bessen2003patentlayne2011join, title={To Join or Not to Join: Examining Patent thickets: Strategic patenting of complex technologiesPool Participation and Rent Sharing Rules}, author={BessenLayne-Farrar, J.Anne and Lerner, Josh}, journal={Available at SSRN 327760International Journal of Industrial Organization}, volume={29}, number={2}, pages={294--303}, year={20032011}, publisher={Elsevier}, abstract={Patent race models assume In recognition that participation in modern patent pools is voluntary, we present empirical evidence on participation rates and the factors that an innovator wins drive the only patent covering decision to join a productpool, including the profit sharing rules adopted by the pool's founders. But when technologies are complexIn most participation contexts, this property right is defective: ownership of a product’s technology the at-risk group is sharedextremely difficult, if not exclusiveimpossible, to identify. In For pools centered on technologies that case I show that if patent standards result from a standard-setting process, in contrast, we are low, firms build “thickets” able to identify a relatively unambiguous population of patents, especially incumbent firms eligible for inclusion but that have not been included in mature industriesthe pool. When they assert these We find that vertically integrated firms, with patentsand downstream operations, innovators are forced more likely to share rents under cross-licensesjoin a patent pool and among those firms that do join, making R&D incentives sub-optimal. On the other hand, when lead time advantages are significant and those with relatively symmetric patent standards are high, firms pursue strategies contributions (in terms of “mutual non-aggression.” Then R&D incentives are stronger, even optimalvalue) to a standard appear more likely to accept numeric patent share rules for dividing royalty earnings.},
discipline={Econ},
research_type={Theory, MathematicalEmpirical}, industry={General, ICT}, thicket_stance={Assumed Pro}, thicket_stance_extract={This paper argues 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 “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 thickets can reduce R&D incentives even when there pools are no transaction costsemerging as an important topic for economic analysis. The newfound interest is understandable, holdup given that patent pools are one of the more readily available tools proposed for overcoming the potentially harmful effects of overlapping or vertical monopoly problemsblocking patent rights (Merges, 1999; Shapiro, 2001).}, thicket_def={def29#A, #B, References Shapiro, Overlapping Patents, Unspecified Blocking Mechanism}, thicket_def_extract={The problem Baker describes is often called a “patent thicket.” These occur when each product may involve many patentsUntil recently, in contrast with the oneeconomic literature on patents pools -tovoluntary organizations created for the purpose of pooling a group of patents into a single licensing package -one correspondence between products and patents that is assumed has been quite sparse. Following on the heels of the intense interest in the theories of "patent race literaturethickets" and "royalty stacking" (e.g. Recent commentators suggest that lower patenting standards encourage patent thickets, creating difficulties for innovators (see GalliniShapiro, 20022001, for a review2006).When innovators must negotiate with large numbers , and the increased proliferation of patentholders, they may face excessive transaction costs (Heller organizations that promulgate technical standards for products and Eisenbergservices, 1998)patent pools are emerging as an important topic for economic analysis. The newfound interest is understandable, “holdup,” and problems given that patent pools are one of the more readily available tools proposed for overcoming the potentially harmful effects of vertical monopoly overlapping or blocking patent rights (Merges, 1999; Shapiro, 2001).}, tags={low innovation incentives#Private Mechanisms, Pools, #Firm Strategy, lack of lead time advantagesValue from Position/Portfolio, subsidize losers of innovation racesStandards}, filename={Bessen LayneFarrar Lerner (20032011) - Patent Thickets Strategic Patenting Of Complex TechnologiesTo Join Or Not To Join.pdf}
}
@article{calderini2006standardisationlayne2007pricing, title={Standardisation Pricing Patents for Licensing in the ICT sectorStandard-Setting Organizations: The (complex) interface between antitrust and intellectual propertyMaking Sense of FRAND Commitments}, author={CalderiniLayne-Farrar, MA. and GiannaccariPadilla, A.J. and Schmalensee, R.}, journal={Econ. Innov. New Techn.Antitrust LJ}, volume={15}, number={674}, pages={543--567671}, year={2006}, publisher={Taylor \& Francis2007}, abstract={This article investigates the issue of standardisation in the ICT sector, analysing the most relevant aspects concerning We explore potential methods for assessing whether licensing terms for intellectual property rights declared essential within a standard setting organization can be considered fair, reasonable, and anticompetitive strategies that can arise in non-discriminatory (FRAND). We first consider extending Georgia-Pacific to a standard setting organisationscontext. We then evaluate numeric proportionality, which is modelled after certain patent pool arrangements and which has been proposed in a pending FRAND antitrust suit. We then turn to two economic models with potential. The first—the efficient component-pricing rule (ECPR)—is based on the economic concept of market competition. The strategic dimension second—-the Shapley value method—is based on cooperative game theory models and social concepts for a fair division of this activity is also scrutinisedrents. Interestingly, these two distinct methods suggest a similar benchmark for evaluating FRAND licenses, highlighting but ones which might appeal differently to the different approaches followed by the United States courts and by competition authorities in the European UnionUS as compared to Europe. In this respectWe find that under any approach, after underlining patents covering “essential” technologies with a greater contribution to the benefits value of processes not lead by public structures, the article describes standard and without close substitutes before the fundamental role of internal regulations, which are necessary both for standard gets adopted should receive higher royalty payments after the purpose adoption of having a sound process, and also reducing the risk of collusion and other anticompetitive conducts among membersstandard.}, discipline={Econ, Policy}, research_type={DiscussionTheory}, industry={ICTGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={ObviouslyIn short, this frequently results in high monetary and transaction costs. The entity a poorly implemented numeric proportionality rule would not only fail to satisfy FRAND principles,23 it would also encourage a proliferation of such costs is often so great as to discourage innovative activity in the downstream phases patenting of the innovation processminor innovations... ContrarilyIt would thus exacerbate any worries over patent proliferation and patent thickets, already a hotly debated in the presence of cumulative academic literature and systemic innovative activitiespopular press. For influential papers on patent thickets, there are reasons to believe that too strict intellectual property rights would lead to perverse effects on innovative activity within the industry.see Shapiro (2001) and Heller and Eisenberg (1998)}, thicket_def={refs shapiro#C1, #D, References Shapiro, References Heller/Eisenberg, Dubious Patents}, thicket_def_extract={This network is defined In short, a patent thicket (Shapiropoorly implemented numeric proportionality rule would not only fail to satisfy FRAND principles, 2001)23 it would also encourage a proliferation of patenting of minor innovations... A It would thus exacerbate any worries over patent proliferation and patent thicket consists of thickets, already a number of adjacent hotly debated in the academic literature and overlapping property rights, which impose popular press. For influential papers on whoever wishes to use certain intermediate goods to ask for licenses from several patent holders.thickets, see Shapiro (2001) and Heller and Eisenberg (1998)}, tags={SSO#Private Mechanisms, IP RightsStandards, Definition of SSOs, FRAND, Licensing}, filename={Calderini Giannaccari LayneFarrar (20062007) - Standardisation In The Ict SectorPricing Patents for Licensing in Standard-Setting Organizations.pdf}
}
@article{calderini2004intellectualleaffer2009patent, title={Intellectual Property Rights as Strategic Assets: The Case of European Patent Opposition in the Telecommunications Industry}, author={Calderini, M. Misuse and Scellato, G.}, 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 of patent oppositions among large incumbents is significantly lower than industry average.}, discipline={Econ}, research_type={Theory, summary statistics}, industry={Telecommunications, ICT}, thicket_stance={n/a}, thicket_stance_extract={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 Standard-Setting Organizations: A Commentary on Teece \& (and) Sherry}, author={CarrierLeaffer, M.A.}, journal={MinnJ. High Tech. L. Rev.}, volume={8710}, pages={2017-2034142}, year={20022009},
abstract={},
discipline={Law},
research_type={DiscussionTheory},
industry={General},
thicket_stance={Weak Pro}, thicket_stance_extract={The clearing Single company acquisition of a dense web of overlapping patents-patent thickets and fostering thickets15-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 cumulative innovation and new markets through SSOs offers perhaps issued patents skyrocket, companies more frequently enter into arrangements with competitors "not only to recover their investment from creating patented products but also to avoid the patent landmines that line the most powerful benefits for competition and path of innovation."}, thicket_def={#B, #C1, Quotes Shapiro, Single Firm, Overlapping Patents, Unspecified Blocking Mechanism, Dubious Patents}, thicket_def_extract={Single company acquisition of a dense web of overlapping patents-patent thickets 15-may create a seemingly impenetrable web which a company must hack its way through in order to commercialize new technology... As the number of issued patents skyrocket, companies more frequently enter into arrangements with competitors "not only to recover their investment from creating patented products but also to avoid the patent landmines that line the path of innovation."17 Companies strategically use patent litigation as a means to protect their competitive position. 18 Even though a company might believe that it is not infringing, it is often better to 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 dubious merit.143 Unfortunately, it is costly to innovate around assertions of infringement.1}, tags={#Firm Strategy, Value from Position/Portfolio, Defensive/Offensive Patenting, Blocking patents, #Private Mechanisms, SSOs, Role of AntitrustGrant-backs, Package Licenses}, filename={Carrier Leaffer (20022009) - Why Antitrust Should Defer To The Intellectual Property Rules Of SSOsPatent Misuse And Innovation.pdf}
}
discipline={Law},
research_type={Discussion},
industry={ICTNanotech}, thicket_stance={NeutralAssumed Pro}, thicket_stance_extract={The smartphone industry today They are often viewed as the "simplest solution" to intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets of IP (a.k.a patent thickets) or are uncertain if there is characterized by possible infringement of patent issues (a.k.a thicket of patents and wars based on those patents. Patent Hold-Up).}, thicket_def={#B, Overlapping Patents, Diversely-Held}, thicket_def_extract={...to intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets of IP (a.k.a patent thickets)}, tags={SSOs#Private Mechanisms, FRAND, Smartphone, AntitrustPools}, filename={Carrier Lee (20122006) - A Roadmap To Examining The Viability Of Patent Pools For The Smartphone Growing Nanotechnology Patent Wars And Frand LicensingThicket.pdf}
}
@article{choi2005livelei2009patents, title={Live and let livePatents versus Patenting: A tale Implications of weak patentsIntellectual Property Protection for Biological Research}, author={ChoiLei, JZ.Pand Juneja, R.}and Wright, journal={Journal of the European Economic Association}, volume={3}, number={2-3}, pages={724--733B.D.}, year={20052009}, abstract={Patent A new survey shows scientists consider the proliferation of intellectual property protection has gradually expanded over time, and many patents of suspect value are routinely granted owing to the lack of rigorous scrutiny in the examination process. This has resulted in the recent explosion of patents granted and potentially creates have a "patent thicket" that hinders future innovation. I investigate the question of whether the litigation process can be relied strongly negative effect on to restore competition when an imperfect market outcome is sustained through patents of suspect value. The analysis undertaken in the paper points out the serious lack of private incentives to eliminate patents of suspect value through litigation. I also discuss potential measures to restore the soundness of the patent systemresearch.}, discipline={EconGeneral Science}, research_type={TheorySurvey}, industry={GeneralBiotech, Academia}, thicket_stance={Assumed ProAnti}, thicket_stance_extract={The lack of rigorous scrutiny Our respondents do not encounter an anticommons or a patent thicket. Rather, they believe that institutionally mandated MTAs put sand in the examination process- in conjunction with wheels of a lively system of intradisciplinary exchanges of research tools. Seeing no countervailing effect on the recent explosion supply of patents granted- has led to a serious concern these tools, they conclude that patenting impedes the current patent system may impede, rather than promote, innovation by creating a "patent thicket"(Shapiro 2001; Gallini 2002; Bessen 2003)progress of research.}, thicket_def={refs shapiroReferences Shapiro, galliniReferences Heller/Eisenberg, bessenUnspecified Blocking Mechanism}, thicket_def_extract={The lack #A, #B, This question has been of rigorous scrutiny particular concern for the biological sciences, where production and exchange of biological ‘research tools’ are important for ongoing scientific progress. Recent studies addressing this issue in the examination process- in conjunction with United States1,2, Germany3, Australia4 and Japan5 find that “patent thickets”6 or an “anticommons”7 rarely affect the recent explosion research of patents granted- has led to academic scientists... Our respondents do not encounter an anticommons or a serious concern patent thicket. Rather, they believe that institutionally mandated MTAs put sand in the current patent wheels of a lively system may impedeof intradisciplinary exchanges of research tools. Seeing no countervailing effect on the supply of these tools, rather than promote, innovation by creating a "patent thicket"(Shapiro 2001; Gallini 2002; Bessen 2003)they conclude that patenting impedes the progress of research.}, tags={patents of suspect value#IPR Reform, litigation issuesResearch Exemption, substitute patentsOpen Source, exclusive rights to first invalidator#Effects on Academic Research}, filename={Choi Lei Juneja Wright (20052009) - Live And Let Live A Tale Of Weak PatentsVersus Patenting.pdf}
}
@techreportarticle{cohen2000protectinglemley2006patent, title={Protecting their Intellectual Assets: Appropriability Conditions Patent Holdup and Why US Manufacturing Firms Patent (or Not)Royalty Stacking}, author={CohenLemley, W.M. and Nelson, R.R. and WalshShapiro, J.PC.}, year={2000}, institution={National Bureau of Economic Research2006}, abstract={Based on a survey questionnaire administered to 1478 R&D labs in We study several interconnected problems that arise under the current U.S. manufacturing patent system when a patent covers one component or feature of a complex product. This situation is common in the information technology sector in 1994of the economy. Our analysis applies to cases involving reasonable royalties, but not lost profits. First, we find show using bargaining theory that firms typically protect the profits due threat to invention with obtain a range of mechanisms, including patents, secrecy, lead time advantages and permanent injunction greatly enhances the use of marketing complementary marketing and manufacturing capabilities Of these mechanismspatent holder’s negotiating power, however, patents tend leading to be royalty rates that exceed a natural benchmark range based on the least emphasized by firms in value of the majority of manufacturing industries, patented technology and secrecy and lead time tend to be emphasized most heavily.A comparison the strength of our results with the earlier survey findings of Levin et alpatent.[1987]sugest that Such royalty overcharges are especially great for weak patents may be relied upon somewhat more heavily covering a minor feature of a product with a sizeable price/cost margin, including products sold by larger firms now than in the early 1980sthat themselves have made substantial R&D investments.For These royalty overcharges do not disappear even if the protection allegedly infringing firm is fully aware 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 when it initially designs its comercialization or licensingproduct.In addition to However, the hold-up problems caused by the prevention threat of copyinginjunctions 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 most prominent motives for patenting include the prevention presence of rivals from patenting related inventions (royalty stacking, i.e.,"patent blocking"),the use of when multiple patents in negotiations and the prevention of suitsread on a single product. We find that firms commonly patent for different reasons in "discrete" product industriesThird, such using third-generation cellular telephones and Wi-Fi as chemicalsleading examples, versus "complex" product industrieswe illustrate that royalty stacking can become a very serious problem, such as telecommunications equipment especially in the standard-setting context where hundreds or semiconductorseven thousands of patents can read on a single product standard. In Fourth, we discuss the former, firms appear to use their patents commonly of “reasonable royalties” to block award damages in patent infringement cases. We report empirical results regarding the development measurement of substitutes “reasonable royalties” by rivals, the courts and identify various practical problems that tend to lead courts to over-estimate “reasonable royalties” in the laterpresence of royalty stacking. Finally, firms are much more likely to use patents to force rivals into negotiationswe make suggestions for patent reform based on our theoretical and empirical findings.},
discipline={Econ},
research_type={EmpiricalTheory}, industry={General, ManufacturingICT}, thicket_stance={NeutralPro}, thicket_stance_extract={Our data do not show the degree to which patent portfolio races distort the nature of R&D incentives or lead to socially wasteful outcomesThe fact that a great many patents can read on a single product, or whether such portfolio races or patent thickets actually block entry. Nor do they indicate whether fee stacking or the breakdown of negotiations and that this is common in complex technology certain critical industries have ever undermined , creates numerous practical problems for the commercialization operation of innovation. The data do suggest, however, that the potential for such outcomes may be more pervasive than previously thoughtpatent system.}, thicket_def={def30#A, References Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held}, thicket_def_extract={For exampleThe fact that a great many patents can read on a single product, and that this is common in certain critical industries, creates numerous practical problems for the building operation of patent fences can be carried to the extreme noted by Scherer [1980] and others to the point of creating "patent thickets" that foster broader monopolies than anticipated by patent policy which in turn impede entry and the innovation that may accompany itsystem.}, tags={patenting strategy#Private Mechanisms, SSOs, Standards, #IPR Reform, patent portfolio racesPrevent Hold-up/Royalty-stacking, Reasonable Royalty}, filename={Cohen Nelson Walsh Lemley Shapiro (20002006) - Protecting Their Intellectual AssetsPatent Holdup And Royalty Stacking.pdf}
}
@incollectionarticle{cohen2008reallemley2005probabilistic, title={Real Impediments to Academic Biomedical ResearchProbabilistic Patents}, author={CohenLemley, WM.MA. and WalshShapiro, J.PC.}, booktitlejournal={Innovation Policy and the EconomyThe Journal of Economic Perspectives}, Volume 8 volume={19}, pagesnumber={1--302}, yearpages={200875--98}, publisheryear={University of Chicago Press2005}, abstract={Numerous scholars have expressed concern over the growing "privatization 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 ever, there was an earlier concern over the extent to which 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, first, that one might distinguish between legal and practical (i.e., lower cost) excludability- and that practical excludability, at least in the world 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 in which flows of knowledge and other inputs into research may be restricted (including secrecy and control over materials). We do find restrictions imposed on the flow of information and materials across biom?dical researchers. While patents play some role, they are not determinative. What appears to matter are both academic and commercial incentives and effective excludability. Exclusion is rarely associated with the existence of a patent in academic settings, but is more readily achieved through secrecy or not sharing research materials.},
discipline={Econ},
research_type={EmpiricalTheory}, industry={BiomedicalGeneral, Pharma}, thicket_stance={Weak Pro}, thicket_stance_extract={Even if patents do not stop ongoing researchSimilarly, the very prospect of a thicket or restricted access may dissuade researchers from choosing particular projects patent thickets can have deleterious effects on both competition and limit lines of attack in that wayinnovation.}, thicket_def={Refs #A, References Shapiro, Heller and EisenbergComplementary Inputs, Diversely-Held}, thicket_def_extract={Although their focus is largely on commercial projectsIn a number of key industries, Heller particularly semiconductors (Hall and Eisenberg (1998Ziedonis, 2001) and Shapiro computer software (2000Bessen and Hunt, 2004) suggest , companies file numerous patent applications on related components that the patenting of are integrated into a single functional product.The result is a broad range of research tools that researchers need to do their work has spawned "patent thicketsthicket," that may make the acquisition in which hundreds of licenses and other rights too burdensome patents can apply to permit the pursuit of what should otherwise be scientifically and socially worth while researcha single product (Shapiro, 2001; FTC, (engendering a tragedy of the "anticommons" [Heller and Eisenberg 1998]2003).15}, tags={incenties#Private Mechanisms, Cross-Licensing, sharing #IPR Reform, Creation of information and knowledgeNew Classification, Stricter Patenting Requirements, exclusionary behaviorLitigation}, filename={Cohen Walsh Lemley Shapiro (20082005) - Real Impediments To Academic Biomedical ResearchProbabilistic Patents.pdf}
}
@miscarticle{competition2008pharmaceuticallemley2005patenting, title={Pharmaceutical Sector Inquiry-Preliminary ReportPatenting Nanotechnology}, author={CompetitionLemley, M.A.}, journal={Stanford Law Review}, DG pages={601--630}, year={20082005}, 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={Policy ReportLaw}, research_type={Empirical, Data Study of Large Originator CompaniesDiscussion}, industry={PharmaceuticalNanotech},
thicket_stance={Pro},
thicket_stance_extract={One commonly applied strategy is filing numerous The dispersion of overlapping patents for across too many firms can also create an anticommons or thicket problem, making effective use of the same medicine (forming so called "patent clusters" 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 thickets")thicket is in theory a serious risk... Documents gathered 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 course Internet, even biotechnology - the basic building blocks of the inquiry confirm that an important objective of this strategy is to delay field were either unpatented, through mistake or because they were created by government or university scientists with no interest in patents, or block the market entry patents presented no obstacle because the government compelled licensing of generic medicinesthe patents, or they were ultimately invalidated. In this respect still other fields, including the inquiry finds that individual blockbuster medicines are protected by up to 1laser, the integrated circuit,300 patents and/or pending patent applications EUpolymer chemistry, basic building-wide and block patents did issue, but they were delayed so long in interference proceedings that, as mentioned above, certain patent filings occur very late the industry developed in the life cycle absence of a medicineenforceable patents...In their submissionsThese 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, both generic and originator companies support not since the creation birth of the airplane a hundred years ago have we seen similar efforts by a single Community range of different inventors to patent to amend basic concepts in advance of a developed market for end products.76 Some fear that ownership of nanotechnology patents is too fragmented, risking the current costly and burdensome system consisting development of a bundle patent "thicket."77 Miller offers several examples of national nanoscale technologies that have overlapping patentscovering the same basic invention, including the carbon nanotube and semiconducting nanocrystals.}, thicket_deftags={}#Effects on Academic Research, thicket_def_extract={}#Private Mechanisms, tags={Pharmaceutical Generics and OriginatorsLicensing, Patent FilingsCompulsory Licensing, Industry Analysis#IPR Reform, EuropeanNPEs}, filename={Competition Lemley (20082005) - Pharmaceutical Sector Inquiry Preliminary ReportPatenting Nanotechnology.pdf}
}
industry={General},
thicket_stance={Pro},
thicket_stance_extract={To meet the challenges that the governance of the European Firms can also address these problems in non-open-source ways, such as patent system is facing because of the emergence of pools, standard-setting organizations, and self-imposed commitments. In a patent thickets the increasing number pool, firms blend their patents with those of patent applications and patenting for defensive and strategic reasons, three options were recommendedother firms. These were: (i) enhancing the patent awareness within the European Parliament; (ii) establishing pools allow users to access a European Parliament Standing Committee on Patents, which should be linked with an External Advisory Body composed by expertsnumber of firms’ patents simultaneously, practitioners and stakeholders; and (iii) enhancing patent awareness within thereby avoiding the Commission“patent thicket.”}, thicket_def={def31#A, Overlapping Patents, Diversely-Held, Unspecified Blocking Mechanism, Deliberate Royalty Stacking}, thicket_def_extract={The sectors which are most affected by this phenomenonSecond, at least in open source avoids the US, are those whose process and product innovations rely upon complex technologies where an individual piece of equipment is the result problem of a very large number of components“patent thicket” when multiple firms have overlapping intellectual property rights, all susceptible and at least one party attempts to patent protection. Here, the recent boom in patenting observed by many researchers is largely explained not by extract a firms’ drive to innovate more than before, but by a need to accumulate large enough “patent thickets”. These patent thickets work as a sort of insurance against possible legal actions from other companies. They are in effect therefore, a kind of defensive manoeuvrehigh fee for its particular contribution.}, tags={reforming patent thickets in europe#Private Mechanisms, defensive use of thicketsOpen Source}, filename={Cowin Lerner Tirole (20072005) - Policy Options For The Improvement Economics Of The European Patent SystemTechnology Sharing Open Source And Beyond.pdf}
}
@article{dhar20071lerner2003structure, title={The Impact Structure and Performance of Intellectual Property Rights in the Plant and Seed IndustryPatent Pools: Empirical Evidence}, author={DharLerner, TJ. and FoltzStrojwas, M. and Tirole, J.}, journal={Agricultural Biotechnolgy and Intellectual Property Protection: Seeds of Change}, pages={161Working paper}, year={2007}, publisher={CABI2003}, abstract={This work uses changes in intellectual property rights regimes for plants as a way to identify the value and cost to industries and society of the different components of property rights: exclusivity, research exemptions, and revelation of research outcomes. A simple model is described that can account for these differences in company choice of intellectual property versus keeping trade secrets. The data used include observations on multiple crop types over a span 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={TheoryEmpirical}, industry={General}, thicket_stance={Assumed Pro}, thicket_stance_extract={Numerous commentators have suggested that the proliferation of these 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.)}, thicket_def={#A, #B, Diversely-Held, Overlapping Patents}, thicket_def_extract={Second, open source avoids the 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 pools to solve the “patent thicket” problem: the presence of overlapping intellectual property holdings that make it difficult for third parties to license patent holdings and develop new technologies.}, tags={#Private Mechanisms, Pools}, filename={Lerner Strojwas Tirole (2003) - The Structure And Performance Of Patent Pools EmpiricalEvidence.pdf} } @techreport{lerner2002efficient, title={Efficient Patent Pools}, author={Lerner, J. and Tirole, J.}, year={2002}, institution={National Bureau of Economic Research}, abstract={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 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.}, discipline={Econ}, research_type={Theory}, industry={AgricultureGeneral},
thicket_stance={Weak Pro},
thicket_stance_extract={A 2002 court ruling Innovations in Madey v. Duke University greatly contracts the research exemption rules computer hardware, software, and biotechnology often build on US patents especially for universities making this a number of other innovations owned by a diverse set of owners and as a result ?patent thicket potentially more " problems - overlapping patent claims that preclude the adoption of a problemnew technologies - can be severe.}, thicket_def={#A, #B, Diversely-Held, Overlapping Patents}, thicket_def_extract={A Innovations in computer hardware, software, and biotechnology often build on a number of observers other innovations owned by a diverse set of patenting, particularly in the biological sciences, have suggested that patenting rules owners and overlapping claims have generated as a "result ?patent thicket" problems - overlapping patent claims that has impeded innovation and made preclude the R&D process more costly (Rai, 2001; Rai, 1999). Rai (2001) for example, argues that broad patents especially on upstream platform adoption of new technologies represent a threat to competition and the cumulative process of innovation in the biopharmaceutical industry- can be severe.}, tags={firm strategy, utility patents, revelation loss#Private Mechanisms, IPRPools, trade secretsLicensing}, filename={Dhar Foltz Lerner Tirole (20072002) - The Impact Of Intellectual Property Rights In The Plant And Seed IndustryEfficient Patent Pools.pdf}
}
}
}
@article{eisenstein2010uplerner2007design, title={Up for GrabsThe Design of Patent Pools: The Determinants of Licensing Rules}, author={EisensteinLerner, J. and Tirole, J. and Strojwas, M.}, journal={Nature BiotechnologyThe RAND Journal of Economics}, volume={2838}, number={63}, pages={544610--546625}, year={20102007}, publisher={Nature Publishing GroupWiley Online Library}, abstract={As recently as three months ago, it still all seemed so simple. Shinya Yamanaka, whose team at the University of Kyoto in Japan is generally acknowledged by the research community as the first to successfully reprogram differentiated cells into iPS cells1, was also the sole patent holder for the technology. But as with any other patent land grab, iPS cell intellectual property (IP) is beginning to look less and less like a one-horse race. Two other recently issued patents in the United States and United Kingdom (Table 1), each awarded to a different inventor with a potentially strong claim to priority, now stand alongside Yamanaka’s patent, which was exclusively issued in Japan. With this newly tangled IP landscape, questions are arising about the possible emergence of a patent thicket. On the other hand, early signs suggest that the iPS cell marketplace may evolve to provide ample room for many different contenders. Whereas for now companies are focused primarily on iPS cell cultivation as a means for deriving clinically relevant mature cells, companies may take advantage of recent data on transdifferentiation that suggest that this pluripotent midpoint may even be dispensable in the future2.}, discipline={Biology}, research_type={Discussion}, industry={Stem Cells, Biology}, thicket_stance={Weak Pro}, thicket_stance_extract={As recently as three months ago, it still all seemed so simple. Shinya Yamanaka, whose team at the University of Kyoto in Japan is generally acknowledged by the research community as the first to successfully reprogram differentiated cells into iPS cells1, was also the sole patent holder for the technology. But as with any other patent land grab, iPS cell intellectual property (IP) is beginning to look less and less like a one-horse race. Two other recently issued patents in the United States and United Kingdom (Table 1), each awarded to a different inventor with a potentially strong claim to priority, now stand alongside Yamanaka’s patent, which was exclusively issued in Japan. With this newly tangled IP landscape, questions are arising about the possible emergence of a patent thicket.}, thicket_def={}, thicket_def_extract={}, tags={iPS industry, intercountry patents, international applications}, filename={Eisenstein (2010) - Up For Grabs.pdf} } @article{feldman2004open, title={The Open Source Biotechnology Movement: Is It Patent Misuse?}, author={Feldman, R.}, journal={Minnesota Journal of Law, Science \& Technology}, volume={6}, year={2004}, discipline={LawEcon}, research_type={Theory, DiscussionEmpirical}, industry={BiotechnologyGeneral},
thicket_stance={Assumed Pro},
thicket_stance_extract={Scholars Numerous commentators have used suggested that the term “patent thicket” to describe the problem proliferation of multiple awards has had socially detrimental consequences: overlapping intellectual property rights that can hamper innovation may make it difficult for inventors to commercialize new innovations (Gallini, 2002 reviews this literature). Patent pools have been proposed by creating transaction barriersMerges (1999), Priest (1977), Shapiro (2000), and the U.S. Most scholars Patent and those reporting from the field agree that large numbers of rights hamper research Trademark Office (Clark, Piccolo, Stanton, and innovationTyson, particularly 2001) as away in the biotech fieldwhich firms can address "patent thicket" problems.21 One scholarIndeed, however, has challenged the notionpatent pools have become economically significant.22 John Walsh argues Clarkson (2003) estimates that firms simply work around sales in 2001 of devices based inwhole or in part on pooled patents were at least $100 billion. Were suggestions to facilitate the problem formation of multiple rights for examplepatent pools to be adopted, by moving offshore beyond their role might approach that seen in the reach early days of the patent rightstwentieth century, inventing around the rights, and using public research tools.23 In particular, Walsh argues that academic researchers routinely ignore rights structures and that when many (if not most) important manufacturing industries had a patent holders passively acquiesce-pooling arrangement.}, thicket_def={refs shapiro#A, lemley#B, References Shapiro, Overlapping Patents}, thicket_def_extract={Scholars Numerous commentators have used the term “patent thicket” to describe suggested that the problem proliferation of multiple awards has had socially detrimental consequences: overlapping intellectual property 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 innovationmay make it difficult for inventors to commercialize new innovations (Gallini, particularly in the biotech field2002 reviews this literature).21 One scholarPatent pools have been proposed by Merges (1999), howeverPriest (1977), has challenged Shapiro (2000), and the notionU.22 John Walsh argues that firms simply work around the problem of multiple rights for exampleS. Patent and Trademark Office (Clark, by moving offshore beyond the reach of the patent rightsPiccolo, inventing around the rightsStanton, and using public research tools.23 In particularTyson, Walsh argues that academic researchers routinely ignore rights structures and that 2001) as a way in which firms can address "patent holders passively acquiescethicket" problems.}, tags={open source biotechnology#Private Mechanisms, Pools, Licensing, academic research toolsGrantbacks}, filename={Feldman Lerner Tirole Strojwas (20042007) - The Open Source Biotechnology Movement Is It Design Of Patent MisusePools The Determinants Of Licensing Rules.pdf}
}
@articletechreport{fischer2011patentllanes2009anticommons, title={Anticommons and Optimal Patent Trolls on Markets for Technology-An Empirical Analysis Policy in a Model of Trolls' Patent AcquisitionsSequential Innovation}, author={FischerLlanes, TG. and HenkelTrento, JS.}, journal={Available at SSRN 1523102}, year={20112009}, abstract={Patent trolls appropriate profits from When innovation solely by enforcing patents against infringers. They are often characterized as relying on low-quality patents, an assessment thatis sequential, if correct, would imply that eradicating such patents would effectively terminate the troll business. In this paper, we shed light development of new products depends on this issue by empirically analyzing trolls’ patent acquisitionsthe access to previous discoveries. We draw on As a unique dataset of 565 patents acquired by known consequence the patent trolls between 1997 system affects both the revenues 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 modelcost of the innovator. Trolls focus on patents that have We construct a broad scope and that lie in patent thickets. Surprisingly, and contrary to common belief, we find that troll patents are model of significantly higher quality than those sequential innovation in the control group. This result implies that elevating minimum patent quality will not put which an end innovator uses n patented inputs in R&D to the patent troll business, and suggests that it invent a new product. We ask three questions: (i) what is sustainable in the long run. Furthermore, we discuss the fact that trolls are peculiar players net effect of patents on markets for technology insofar innovation as they technologies become more complex (n increases)? (ii) are solely interested in patent pools welfare enhancing? (iii) what is the exclusion right, not in the underlying knowledge. optimal response of patent policy as technological complexity increases? We posit find that transactions involving patent trolls may only be the tip of answers to these questions depend on the iceberg degree of “patent-only” transactions, a conjecture with strong implications for complementarity and substitutability between the efficiency of markets for technologies. Managerial and policy implications are discussedinputs used in research.},
discipline={Econ},
research_type={Empirical, ModelTheory},
industry={General},
thicket_stance={ProNeutral}, thicket_stance_extract={The second patent characteristic patent trolls should favor When the inputs are complements, the profitability of the innovation is decreasing in the technological complexity. In the limit (when n -> infinity), when the degree of substitutability is below a high cost of substituting threshold level, which is higher than 1, the underlying invention in productsinnovation is never profitable. This substitution cost increases with paper therefore gives a formal treatment of the difficulty tragedy of inventing around the patentanticommons. On the other hand, when the inputs are substitutes, which the profitability of the innovation is increasing in technological complexity. Even in turn is high if this case, when n -> infinity, the patent density and complexity cost of gathering all the relevant technology field inputs for the innovation is always too high. This means that many patents exist that have from a high degree social point of overlap between them view and with thus the patent under consideration, so that finding a gap for a non-patented substitutive technology probability of innovation is difficultsuboptimal.}, thicket_def={Refs Shapiro#A, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Hold-up}, thicket_def_extract={This means that many patents exist that have As the number of inputs needed in research increases, the innovator faces a high degree of overlap between them patent thicket and with is threatened by the patent under considerationpossibility of hold-up, so namely the risk that finding a gap for a non-patented substitutive technology useful innovation is difficultnot developed because of lack of agreement with the patent holders. In other words, This problem has been dubbed the focal patent is part tragedy of a patent thicket the anticommons (ShapiroHeller 1998, 2001Heller and Eisenberg 1998).}, tags={patent trolls#Private Mechanisms, patent qualityPools, licensingLicensing, business modelSequential Innovation}, filename={Fischer Henkel Llanes Trento (20112009) - Anticommons And Optimal Patent Trolls On Markets For TechnologyPolicy In A Model Of Sequential Innovation.pdf}
}
@article{galasso2007broadlin2001research, title={Broad cross-license agreements and persuasive patent litigationResearch Versus Development: theory Patent Pooling, Innovation and evidence from Standardization in the semiconductor industrySoftware Industry}, author={GalassoLin, AD.}, journal={LSE STICERD Research Paper NoJ. Marshall Rev. Intell. Prop. L. EI45}, volume={1}, pages={274--309}, year={20072001}, abstract={In many industries broad cross-license agreements are considered Despite the impressive pace of modern invention, a useful method certain “patent thicket” effect that may be impeding what has become an increasingly difficult road to obtain freedom to operate the commercialization of new technologies. Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and as a result, are often subject to avoid patent litigation. In this paper I study the previously neglected dynamic trade-off between litigating and cross-licensing that firms face to protect their intellectual propertyprotection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies. I present a model The difficulties of bargaining with learning in which firms’ decisions to litigate or crosslicense depend on their investments in technology specific assetsacquiring licenses (e.g. In particular hold-out problems) for all such patents has the model predicts that where firms’ sunk costs are higher, their incentive potential to litigate stifle the development and delay commercialization of these new technologies. As such, patent pooling, once condemned as facilitating antitrust violations in past eras, has been reintroduced as a crosspractice that, if properly structured, has potentially strong pro-license agreement is lowercompetitive benefits. In addition, Patent pooling has the potential to reduce the bargaining game shows how firms with intermediate values level of asset specificity tend to engage research and invention in inefficient "persuasive litigation". Using a novel dataset on the US semiconductor industry I obtain empirical results consistent new technologies that can compete with those suggested by the modelan incumbent standard. Combining model intuition with some empirical figures, I evaluate possible effects Recent patent jurisprudence and lenient federal antitrust agency of recent patent pooling proposals seem to create an environment that encourages the currently debated resurgence of patent litigation reformpooling.}, discipline={EconLaw}, research_type={Theory, Empirical, Econometric Model}, industry={General, SemiconductorsSoftware},
thicket_stance={Assumed Pro},
thicket_stance_extract={In particularDespite the impressive pace of modern invention, Shapiro (2001) has argued that commentators have observed a certain "patent thicket" effect that may be impeding what has appeared that renders it become an increasingly difficult road to commercialize a the commercialization of new technologytechnologies. In some industries the number of intellectual property rights a firm requires to produce a 1 Specifically, as new product is so largetechnologies build upon old technologies, they necessarily become increasingly complex, and their ownership is so dispersedas a result, that it is quite easy are often subject to unintentionally infringe on a patentthe protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies.2 The difficulties of acquiring licenses (e.g. In this environment there is, therefore, a hold-up problem: when out problems) for all such patents has the manufacturer starts selling its product a patentee might show up threatening potential to shut production down unless it is paid high royaltiesstifle the development and commercialization of these new technologies.}, thicket_def={refs shapiro#A-T, References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={During Despite the past few years various scholars1 and industry representatives impressive pace of modern invention, commentators have drawn attention to specific inefficiencies generated by the patent system in several industries. In particular, Shapiro (2001) has argued that observed a certain "patent thicket" effect that may be impeding what has appeared that renders it become an increasingly difficult road to commercialize the commercialization of new technologies.1 Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and as a result, are often subject to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies.2 The difficulties of acquiring licenses (e.g., hold-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologytechnologies.}, tags={Cross-licensing#Private Mechanisms, Standards, SSOs, Pools, Sequential Innovation}, filename={Galasso Lin (20072001) - Broad Cross License Agreements And Persuasive Patent LitigationResearch Versus Development.pdf}
}
@article{gaule2006towardslin2011licensing, title={Towards Licensing Strategies in the Presence of Patent Pools in Biotechnology?Thickets}, author={Gaul{\'e}Lin, PL.}, journal={Journal of Product Innovation Strategy TodayManagement}, volume={228}, number={25}, pages={123698--143725}, year={20062011}, abstract={}Many key industries (e.g., discipline={Managementbiomedical, Law}pharmaceuticals, research_type={Discussion}telecommunications, industry={Biotechnology}and information technologies) are characterized by cumulative innovations, thicket_stance={Weak Pro}, thicket_stance_extract={The strength where the introduction of the anti‐commons thesis rests on two assumptions that are very difficult to test: (1) that developing commercial biomedical products a new product or service often requires access to many different IP complementary technologies. When these technologies are protected by intellectual property rights and (2) that negotiating access with different owned by many firms, patent thickets exist, which researchers have argued may hinder the development of cumulative innovations. Specifically, patent owners thickets may lead to excessive royalty burdens for potential licensees, which is prohibitively difficult called ‘‘royalty stacking,’’ and costlyif such costs are passed on to consumers, prices of products based on cumulative technologies will be driven up, dubbed as ‘‘double marginalization. On the first point’’ The literature, the number of biotechnology patents has certainly increased dramatically over the last decadehowever, although by itself that does not necessarily imply greater fragmentationaddress these issues under different forms of licensing contracts. Walsh et al. (2003) report from interviews with biotechnology industry IP practitioners that preliminary freedom This article develops a game-theoretic model where a downstream firm seeks to operate searches can sometimes find hundreds of license N patents relevant to a candidate product but that read on closer inspection “there may be, its product from upstream firms. It discusses a variety of licensing forms widely used in a complicated case, about 6‐12 that they have practice and attempts to seriously address, but discover whether royalty stacking and double marginalization occur under these forms of licenses. It also studies the impact of bargaining power between parties. It is found that when patent ownership becomes more typically fragmented, neither royalty stacking nor double marginalization occurs under profit-based royalty, fixed fee, and hybrid licenses. Such problems occur only under pure quantity-based or pure revenue-based royalty licenses when the number was zerodownstream firm’s bargaining power is low.” Enough anecdotal evidence exists, however, to suggest It is also shown that no matter how fragmented the fragmentation ownership structure of rights in biotechnology patent is sometimes , hybrid licenses consisting of a serious concern.}, thicket_def={Def32}, thicket_def_extract={The IP rights situation described above was arguably fixed fee and a classical case of quantity- or revenue-based royalty rate lead to the same market outcomes as a patent thicket with fragmented IP rights fully integrated firm that owns all the patents and the downstream market. This article has interesting implications for both research and uncertainty about technology ownership}practice. First, tags={the results show that even under the same patent poolsownership structure, cross-licensing}, filename={Gaule (2006) - Towards Patent Pools In Biotechnologydifferent forms of licenses lead to quite different market outcomes.pdf} } @article{gilbert2004antitrustTherefore, title={Antitrust for Patent Pools: A Century it is suggested that firms and policy makers pay more attention to contractual forms of licenses when trying to minimize the negative impact of Policy Evolution}patent thickets. Second, author={Gilbertthe extant literature has largely assumed that quantity-based royalties are used, Rwhere double marginalization is the most severe.J.}In practice, journal={Stanford Technology Law Review}revenue-based royalties are most common, volume={2004}under which double marginalization is much milder. Third, year={2004}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, abstract={especially when downstream firms have low bargaining power.}, discipline={LawEcon}, research_type={Discussion, EquationsTheory},
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 will be driven up, dubbed as ‘‘double marginalization.’’}, thicket_def={#B1, #D, References Heller/Eisenberg, References Shapiro, Overlapping Patents, Diversely-Held, Cummulative Invention}, thicket_def_extract={Related, and often overlapping, patents owned by many entities are often described as ‘‘patent thickets’’ and researchers have argued that patent thickets can be detrimental to innovation, especially in information industries such as software (see, among others, Heller and Eisenberg, 1998; Lessig, 2001; Shapiro, 2001; Bessen and Maskin, 2009).}, tags={Antitrust#Private Mechanisms, Pools, Royalties, patent poolsLicensing, competitionCumulative Innovation}, filename={Gilbert Lin (20042011) - Antitrust For Licensing Strategies In The Presence Of Patent Pools A Century Of Policy EvolutionThickets.pdf}
}
}
@article{goozner2006innovationmacdonald2004means, title={Innovation in BiomedicineWhen Means Become Ends: Can Stem Cell Research Lead Considering the Way to Affordability?Impact of Patent Strategy on Innovation}, author={GooznerMacdonald, MS.}, journal={PLoS medicineInformation Economics and Policy}, volume={316}, number={51}, pages={e126135--158}, year={20062004}, publisherabstract={Public Library 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 Science}the information of invention the patent allows, the patent is not meant to be an end in itself. This seems to be changing, the patent acquiring a strategic value increasingly independent of innovation. If this development has gone largely unnoticed, it may be because the patent system tends to be viewed from the entrenched perspectives of lawyers and economists, abstract={and of a number of interest groups that justify their reliance on the system in terms of the innovation it is supposed to encourage. These groups have never included small firms and developing countries in whose name they frequently defend the patent system. They may have some difficulty justifying a system whose strategic value is so divorced from its value for innovation.}, discipline={BiologyMgmt}, research_type={Policy, Discussion, Industry Statistics}, industry={Biology, Stem CellGeneral}, thicket_stance={Assumed Weak Pro}, thicket_stance_extract={While The pharmaceutical industry has been instrumental in creating a patent system for the pharmaceutical industry, appropriate to the orderly innovation of that industry. Acceptance of the innovation myth has meant that this logic is rarely challenged. Thus, for instance, development may relate to many researcherspatents, especially in academianot just one (Heller and Eisenberg, fi nd ways around 1998). The costs of navigating through mazes of overlapping patent restrictionsrights – through patent thickets – are likely to be considerable (Shapiro, 2001), 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 inquirylikely to be an obstacle to innovation.}, thicket_def={refs heller eisenberg#A-T, refs eisenberg#B-T, References Shapiro, Overlapping Patents}, thicket_def_extract={While many researchers, especially in academia, fi nd ways around The costs of navigating through mazes of overlapping patent rights – through patent restrictionsthickets – are likely to be considerable (Shapiro, 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 inquiry2001)...}, tags={Incentives#Firm Strategy, Patent ProliferationValue from Position/Portfolio, License Agreements, Patent Pool, Open SourceDefensive/Offensive Patenting, #IPR Reform}, filename={Goozner Macdonald (20062004) - Innovation In BiomedicineWhen Means Become Ends.pdf}
}
@article{hemphill2003preemptivemallo2008patent, title={Preemptive Patenting, Human Genomics, and Patent-related Barriers to Market Entry for Generic Medicines in the US Biotechnology SectorEuropean Union: Balancing Intellectual Property Rights with Societal WelfareA Review of Weaknesses in the Current European Patent System and Their Impact on Market Access of Generic Medicines}, author={HemphillMallo, TL.and Roox, K. and Pike, J. and Brown, A. and Becker, S. and Thaler, G.}, journal={Technology in SocietyJournal of Generic Medicines: The Business Journal for the Generic Medicines Sector}, volume={255}, number={34}, pages={337255--349280}, year={20032008}, publisher={ElsevierSAGE Publications}, abstract={Within Patents are effective tools for promoting innovation in the biotechnology pharmaceutical sector . Originator companies should be able to recoup their R & D investments during the term of the basic patent / SPC on an active pharmaceutical substance. Generic competition should be available immediately after expiry of that term. The chances of market entry for generic medicines companies in all markets the day following expiry of the US economymain basic patent in all European Union markets is, aggressive patentinghowever, inot possible or, at best, is extremely diffi cult.eDue to a diminishing number of newly registered products and contracting product pipelines, originator companies may be tempted to unjustly prolong the patent monopoly of existing products. preemptive patenting, The result is known as the ‘ evergreening ’ of a basic patent with the help of human genomic research results follow-on patents to keep generic competitors off the market. These follow-on patents are practiced by private-sector firmsoften weak or trivial and, upon careful examination, it is clear that they should never have been granted. Patent quality is therefore of the academic community, utmost importance. The European patent system should only reward true inventions and nonshould discourage patent applications for ordinary innovation. An important way of reducing the incidence of poor quality follow-profit organizationson patents is to remedy certain structural defi ciencies and weaknesses in the current examination procedure. Preemptive patenting Priority must be given to ensuring that the European Patent Offi ce (EPO) has traditionally been practiced by the private sector as a competitive strategyresources it needs to continue to improve the quality of patent examiners, being driven by economic considerations. Recentlyalong with their training and remuneration, academics and patients/consumers have instituted preemptive patenting strategies as 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 way more stringent application of ensuring access the patentability requirements and fewer trivial patents. Applicants should be more rigorously required to genomic sequences forprovide patent applications of the highest quality accompanied by all relevant information at the start of the examination process. Similarly, respectivelythey should be under obligation to disclose all information known to them that is material to the patentability of their invention. Furthermore, research study purposes and lifebetter third-enhancing access party participation would also help to diagnostic gene testingavoid inappropriate follow-on patents from being granted. To reduce this non-economic motivation 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 preemptive patenting a common and single European patent application and granting system by these nontraditional competitorsthe EPO. A European patent is not a unitary patent, but essentially a bundle of national patents. As a result, it is recommended that questions of patent infringement and validity are governed by various national laws and are handled by the biotechnology industry initiate national courts operating under different procedural rules. This purely national litigation system results in a complex arena of multiple patent litigation involving high costs, forum shopping and diverging, even contradictory, court decisions. The lack of a strategy central judiciary composed of experienced patent judges is regarded as one of its own which will: (1) relax firm the major defects in the current patent enforcement system. An effective solution would be the creation of genomic sequences a central European patent court that are essential 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 academic researchers obtaining an interim injunction should be returned to use in their studies; and (2) provide for its roots as an equitable remedy since injunctions today are often used simply as a litigious tactic. This change would require a ‘means-test’ approach litigant to establish the existence of irreparable harm that incorporates cannot be compensated by monetary damages before a ‘staggered’ feecourt would take the far-schedule for academic researchers reaching step of enjoining a product. Finally, measures should be taken to ensure that originator companies do not use other means to charge unjustly prolong their subjectsmonopoly by, i.e. patientsfor example, introducing a system of patent linkage, obtaining improperly granted SPCs, deploying inaccurate marketing campaigns for gene tests and diagnostic resultspromoting ‘ new ’ products with no substantial added therapeutic value as innovative products, etc.}, discipline={PolicyGeneral Science},
research_type={Discussion},
industry={BiotechnologyPharma}, thicket_stance={Weak Pro}, thicket_stance_extract={To forestall imitative activity Certain structural deficiencies and strengthen patent rightsweaknesses in the current examination procedure, firms often attempt to create a ‘patent thickethowever,’ i.e. obtaining result in the grant of patents not just on one central product or processof variable quality, but on giving a host patent owner / originator company facing expiry of related products or processes [11]. Firms that try to compete with a basic product patent the inventing firm will find their attempts opportunity to duplicate the central product or process blocked by the inventing firm’s grip on alternative technologiescreate what is known as a ‘patent thicket’ (see below). Many of the firm’s patents on related products or processes may never be used or licensed; such ‘sleeping patents’ The most obvious structural issues are held only to raise the costs of entry or imitation by potential rivalsdiscussed below.}, thicket_def={def33#C1, Single Firm, Evergreening, Dubious Patents, Unspecified Blocking Mechanism}, thicket_def_extract={To forestall imitative activity Originators file numerous follow-on patent applications covering a drug in the hope that at least one of them will be granted and strengthen patent rights, firms survive a litigation challenge. The consequence of this is often attempt to create an extensive thicket or cloud of patents around a ‘patent thicketdrug,’ ithe various parts of that cloud each typically..e. obtaining patents not just A good example of both an improperly granted follow-on one central patent and a patent thicket is found in relation to the product or processperindopril erbumine, but on 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 respect to the pharmacokinetic effect of administering a host particular drug be directly linked to the formulation used to achieve that effect; (d) limit the scope of related products second and further medical use patents; and (e) grant patents only to genuine incremental innovation and not to simple changes in chemistry or processes [11]formulation.}, tags={preemptive patenting#Firm Strategy, Evergreening, consumer welfare#IPR Reform, international affairsReview of Patent Validity, strategic valueStricter Patenting Requirements}, filename={Hemphill Mallo (20032008) - Preemptive Patenting Human Genomics And Patent Related Barriers To Market Entry For Generic Medicines In The Us Biotechnology SectorEuropean Union.pdf}
}
}
number={4},
pages={629127--633153},
year={2006},
publisher={ElsevierMIT Press}, 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={LawEcon}, research_type={Discussion, Commentary}, industry={General, Research}, thicket_stance={Weakly AntiWeak Pro}, thicket_stance_extract={Although upstream In addition to the costs of individual patents , researchers have been widely criticizedto contend with “patent thickets.” That is, complex technologies, such as biomedical research tools, and there are embody a number of cases where specific patents clearly seem to have impeded innovationtechnological inputs, many of which are patented. A different company, there is little objective evidence to support a conclusion that patents constitute a widespread substantial obstacle to biomedical R&Din turn, particularly 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 academic sectordiffusion of scientific research.}, thicket_def={Refs heller/eisenberg#A, Complementary Inputs, rai/eisenbergDiversely-Held}, thicket_def_extract={Upstream In addition to the costs of individual patents , researchers have been criticized on a number of countsto contend with “patent thickets. For example” That is, complex technologies, it has been proposed that the proliferation of patents covering such as biomedical research tools has resulted in a “patent thicket,” rendering it virtually impossible to conduct biomedical research without inadvertently infringing upon embody a host number of conflicting patent claims (Heller and Eisenbergtechnological inputs, 1998; Rai and Eisenberg, 2002)many of which are patented.}, tags={patents #IPR Reform, Issues of dubious quality, research usePatent Validity, public domainCompulsory Licensing}, filename={Holman Maskus (2006) - Clearing A Path Through Reforming Us Patent Policy Getting The Patent ThicketIncentives Right.pdf}
}
@article{holman2008trendsmasur2010costly, title={Trends in Human Gene Costly Screens and Patent LitigationExamination}, author={HolmanMasur, CJ.MS.}, journal={ScienceJournal of Legal Analysis}, volume={3222}, number={58992}, pages={198687--199734}, year={20082010}, publisher={American Association for the Advancement 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={PolicyLaw}, research_type={Commentary, Discussion, Industry Statistics}, industry={Biotechnology, GeneticsGeneral}, thicket_stance={AntiAssumed Pro}, thicket_stance_extract={HoweverThird, for the most partthere are patents of low private value and low (or negative) social value; this class of patents includes both discarded, fears expressed concerning human gene unenforced 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 increase the subject of the asserted search costs and risk imposed on commercial firms—the "patentthicket", the antithesis of a patent thicket scenario (14). Some have speculated that DNA microarray technology is particularly at risk of becoming entangled in a thicket popular parlance (6Shapiro 2001). However, I found no instance in which a human gene patent was asserted against the manufacturer or user of microarray technology—and worthless, although microarray companies have experienced substantial patent litigation involving nongene largely unenforceable patents since the mid-1990susable only for extracting nuisance settlements (see Section 2.2.).}, thicket_def={refs heller eiseneberg#C1, barton#D-S, References Shapiro, Dubious Patents}, thicket_def_extract={Some have postulated that a “thicket” Third, there are patents of patents will impede basic biomedical research low private value and will stifle development and utilization low (or negative) social value; this class of technologies patents includes both discarded, unenforced patents that involve increase the use of multiple genetic sequences; DNA microarrays are a prime example search costs and risk imposed on commercial firms—the ‘‘patent thicket,’’ in popular parlance (5, 6Shapiro 2001)...}, tags={Gene patent litigation#IPR Reform, frequency Review of litigationPatnet Quality, Infrastructure Changes}, filename={Holman Masur (20082010) - Trends In Human Gene Costly Screens And Patent LitigationExamination.pdf}
}
@article{holman2012debunkingmerges2006introductory, title={Debunking the Myth that Whole-Genome Sequencing Infringes Thousands Introductory Note to Brief of Gene PatentsAmicus Curiae in eBay v. MercExchange}, author={HolmanMerges, CR.MP.}, journal={Nature biotechnologyBerkeley Tech. LJ}, volume={30}, number={321}, pages={240997--2441016}, year={2012}, publisher={Nature Publishing Group2006},
abstract={},
discipline={Law},
research_type={Commentary, Discussion}, industry={Biology, GeneticsGeneral}, thicket_stance={AntiPro}, thicket_stance_extract={There is also good reason As noted above, the existence of the patent thicket and the problem of low quality patents make it especially easy for trolls to think acquire patents that even arguably cover one of the claims most likely to be infringed, reciting short fragments of genomic DNA, hundreds or broadly defined methods of testing for genetic variation, would not necessarily be infringed by all forms thousands of WGS, particularly next-generation technologies that do not amplify genesprocesses incorporated in a single high technology product. A The troll waits until a company that provides WGS services, but that leaves with deep pockets makes irreversible investments in the arguably infringing technology. The troll may even revise the terms of the job patent (through a patent "reissuance" or "continuation") in light of analyzing the sequence data for clinically important variations target's investment in order to others, would be particularly unlikely strengthen the infringement claim. The troll then uses the threat of an injunction shutting down production to be found liable for infringing any demand a significant share of the total profit associated with the product. This gamesmanship results in no social benefit and a great deal of these gene patentsharm.}, thicket_def={#A, #C1, References Shapiro, Complementary Inputs, Diversely-Held, Dubious Patents}, 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={Whole Genome Sequencing#Private Mechanisms, InfringementNPEs}, filename={Holman Merges (20122006) - Debunking The Myth That Whole Genome Sequencing Infringes Thousands Introductory Note To Brief Of Gene PatentsAmicus Curiae In Ebay V MercExchange.pdf}
}
@article{horn2003alternativemertes2010managing, title={Alternative approaches to IP management: One-stop technology platform licensingManaging the Patent Thicket and Maximizing Patent Lifetime in Vaccine Technology}, author={HornMertes, LM.M.M. and St{\"o}tter, G.}, journal={Journal of commercial biotechnologyHuman Vaccines}, volume={96}, number={210}, pages={119860--127863}, year={20032010}, publisher={Palgrave MacmillanLandes Bioscience}, abstract={As Patents are exclusive rights for a pioneering, one-stop technology platform licensing enterprise, MPEG LA is presented as a template limited period of time that are granetd to provide an incentive for innovation and in exchange for patent poolingthe public disclosure of an invention. By providing Patenting in the marketplace with fairmedical field, reasonable, non- discriminatory access to a portfolio especially in the field of worldwide essential patents under a single licencehuman vaccine technologies, this example is full of a one-stop technology platform licensing programme enables widespread implementationpitfalls, interoperability and use of fundamental broad-based technologies because the products that finally access the market are often covered by many patents owned by many patent ownersa multitude of exclusive IP rights. This paper will: (1) present observations from MPEG LA’s unique experience commentary gives an overview on obstacles in vaccine patenting and perspective including a description of the necessary elements and principles on which such efforts are basedhow to overcome them, what works and why; and (2) describe efforts to apply this innovative licensing model intends to the biotechnology and pharmaceutical industries within the larger context of historical patent pooling as provide a solution to biotechnology bottleneckspatenting guideline for researchers.}, discipline={LawGeneral Science},
research_type={Discussion},
industry={Technology, Biotechnology, PharmaceuticalBiotech}, thicket_stance={Weak Pro}, thicket_stance_extract={In addition, there has been enormous growth Managing the patent thicket in the number fields of issued patents containing progressively narrower claims. Therefore, licences under multiple patents owned vaccine technology is challenging as one product may be covered by multiple a plurality of exclusive IP rights that have to be considered when developing a product and building up a patent owners are requiredportfolio. In Consequently, licensing is a key point in the absence of vaccine industry.If a basic patent is held by a powerful patent pool, the transaction costs required holder refusing to identify the blocking patents and conclude negotiations for grant a licence license under each of them (assuming the patent owners are even willing to enter into licence negotiations)reasonable commercial terms or abuses a market-dominating position, to say nothing of paying multiple royaltiesit should be examined, are too costly for whether the average user – with the result that technological advancement, adoption and use requirements to request a compulsory license are impeded; freedom of technological movement is restricted; the potential for conflict is increased; and traditional one-on-one licensing arrangements fall shortfulfilled.}, thicket_def={refs shapiro#A, Complementary Inputs, Diversely-Held}, thicket_def_extract={Therefore, if Managing the patent thicket in the ‘thicket’2 fields of vaccine technology is challenging as one product may be covered by a plurality of essential exclusive IP rights underlying their use cannot that have to be accessed 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 and conditions (eg cost) applied evenly to all similarly situated competitorsor abuses a market-dominating position, it should be examined, whether the best of standards often go unusedrequirements to request a compulsory license are fulfilled.}, tags={technology platform licensing#Private Mechanisms, Licensing, #Firm Strategy, standards poolsValue from Position/Portfolio}, filename={Horn Mertes Stotter (20032010) - Alternative Approaches To IP ManagementManaging The Patent Thicket And Maximizing Patent Lifetime In Vaccine Technology.pdf}
}
}
@articlebook{huys2009legalmuris2001competition, title={Legal uncertainty in the area of genetic diagnostic testingCompetition and Intellectual Property Policy: The Way Ahead}, author={HuysMuris, IT. and Berthels, NJ. and Matthijs, G. and Van Overwalle, G.}, journal={Nature biotechnology}, volume={27}, number={10}, pages={903--909}, year={20092001}, publisher={Nature Publishing GroupUS FTC}, 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 as to the claims’ scope.}, discipline={Biology, LawPolicy Report}, research_type={Empirical study, Industry StatisticsDiscussion}, industry={Biology, GeneticsGeneral}, thicket_stance={Weak Anti}, thicket_stance_extract={With respect to genesMoreover, 25% of the identified patents, filed by different applicants, claim a human gene, suggesting the possibility of the existence of even if there were a "patent thicket. In contrast to this relatively high number of gene claims" problem, only 3% others state that firms have found a range of means to overcome these gene claims can be classified as occupying a blocking position. Thereforeobstacles, a hindering including cross-licenses and patent thicket cannot be demonstratedpooling.}, thicket_def={def33#A-S, Quotes Shapiro, References Shapiro}, thicket_def_extract={FirstAccording to Professor Carl Shapiro, is a "patent thicket" has formed, defined which he describes as many blocking patents from many different owners, emerging "a dense web of overlapping intellectual property rights that a 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 thereby risk liability. A On the genetic diagnostic sector?other hand, some observers believe that innovation currently is not hindered.'"' 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.-}, tags={genetic diagnostic testing#IPR Reform, Balance with Anti-trust, patent proliferationBalance with Anti-trust, Duration Limits, #Private Mechanisms, research sectorSSOs}, filename={Huys Muris (20092001) - Legal Uncertainty In Competition And Intellectual Property Policy The Area Of Genetic Diagnostic TestingWay Ahead.pdf} }
@article{iyama2005usptonapoleon2009impact, title={The USPTO's proposal Impact of a biological research tool patent pool doesn't hold waterGlobal Patent and Regulatory Reform on Patent Strategies for Biotechnology}, author={IyamaNapoleon, SV.J.}, journal={Stanford Law ReviewPitt. J. Tech. L. \& Pol'y}, volume={9}, pages={12231--124131}, year={20052009},
abstract={},
discipline={Law},
research_type={Written TheoryDiscussion}, industry={BiologyBiotech}, thicket_stance={Weak Pro}, thicket_stance_extract={But how likely is it that Pharmaceutical companies typically grow a patent thicket for biological research will develop? According to the NIH working group on research tools, seeking a thicket wide range of research tool patents has already begun to form...The cumulative result chemical variants and analogs, methods of these actions is synthesizing the initial formation drug, chemical intermediates in this synthesis, different crystal forms, different finished dosage forms and various methods of a use. 62 Obtaining permission from various patent thicket holders for research tools. The negative consequence use of an extensive research tool 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 its accompanying licensing scheme is the potential chilling effect technologies, we could conceivably witness cumulative innovation with infringement on many patents which ultimately serves as a drag on innovationand commercialization.}, thicket_def={refs shapiro#A, #B1, #D, Quotes Shapiro, References Shapiro, Complementary Inputs, Diversely-Held, Single Firm, Unspecified Blocking Mechanism}, thicket_def_extract={Under this metaphorThis pattern, however, has created what some would characterize as a patent thicket arises when each block is granted separate yet concurrent exclusivity rights“Patent Thicket”59 in biotechnology. The so-called thicket That is , emerging from the resulting nexus overabundance of concurrent patent filings and associated activity is “a dense web of overlapping IP rights intellectual property rights”60 that one must navigate 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 order 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 practice any evolutionary form of sciencebe 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={Patent pool#IPR Reform, International Harmonization, antitrustRenewal }, filename={Iyama Napoleon (20052009) - The Usptos Proposal Impact Of A Biological Research Tool Global Patent And Regulatory Reform On Patent Pool Doesnt Hold WaterStrategies For Biotechnology.pdf}
}
@article{jacob2009patentsnielsen2006compulsory, title={Patents Compulsory Patent Licensing: Is It a Viable Solution in the United States}, author={Nielsen, C.M. and PharmaceuticalsSamardzija, M.R.}, authorjournal={Mich. Telecomm. \& Tech. L. Rev.}, volume={Jacob13}, Robin pages={509}, year={20092006}, journalabstract={A paper given on 29th November As technology continues to advance at a rapid pace, so do the Presentation number of patents that cover every aspect of making, using, and selling these innovations. In 1996, to compound the Directorate-General rapid change of Competition’s Preliminary Report 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 Pharma-high technology sector inquiry}, abstract={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={Public, PolicyLaw}, research_type={CommentaryDiscussion}, industry={PharmaceuticalGeneral}, thicket_stance={NeutralAssumed Pro}, thicket_stance_extract={Every patentee 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 major invention company must hack its way through in order to actually commercialize new technology.”3 It is likely hypothesized that patent thickets increase transactional costs and stifle innovation by making it more expensive and difficult to come up with improvements and alleged improvements bring new developments to his inventionthe market. By }, thicket_def={#A-T, Quotes Shapiro, References Shapiro, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={In some industries, particularly the time his main patent has expired there will semiconductor industry, access to hundreds of patents may be necessary in order to produce a thicket single commercial product. Many of the patents overlap and block the use of other patents intended , thereby creating a “patent thicket”—a “dense web of overlapping intellectual property rights that a company must hack its way through in order to extend his monopoly. Some will be good, others badactually 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 nature presence of the a patent system itself that this should happen thicket and it has always happenedthe stacking royalties must separately be addressed... There Closely related is nothing new about “evergreening”the concept of patent thickets. A single product may include many different, only individually patented components.... The patent thicket is best understood in the name and semiconductor industry where any given microchip may infringe a number of patents, including the implication which flows from process manufacturing patents used to produce the wordchip. Here, that there patents are complementary because different inventors independently have patented different components of the larger invention. This is something sinister going on and that it has only recently been discoveredunlike blocking patents (otherwise referred to as improvement patents) resulting from the incremental process of innovation.}, thicket_deftags={}#Private Mechanisms, #IPR Reform, Compulsory Licensing, Pools, thicket_def_extract={}Clearinghouses, tags={competitionLicensing}, filename={Jacob Nielsen Samardzija (20092006) - Patents And PharmaceuticalsCompulsory Patent Licensing.pdf}
}
industry={General},
thicket_stance={Assumed Pro}, thicket_stance_extract={The patent owner may do this by creating Second, our notion of a thicket correct decision rests on the legal meaning of pantentsvalidity (that is, novelty, nonobviousness, and usefulness). From an economic perspective, however, so other parties are swamped with so much complex technical documentation that they cannot separate whether an invention should be patentable depends on the relative net change to the incentive to invent and innovate and the chaff from size of the wheatdeadweight monopoly losses. Developing The latter includes strategic ways to construct undesirable patent thickets is relatively easy , build patent portfolios to do extract additional bar- gaining power in this regime since the patent examination process is cursory..cross-licensing arrangements, or other rent-seeking activities.the average cost of dispute resolution will be high}, thicket_def={def35#C1, Unspecified Blocking Mechanism, Strategic Patenting (Bad)}, thicket_def_extract={The patent owner may do this by creating Second, our notion of a thicket correct decision rests on the legal meaning of pantentsvalidity (that is, novelty, nonobviousness, and usefulness). From an economic perspective, however, so other parties are swamped with so much complex technical documentation that they cannot separate whether an invention should be patentable depends on the relative net change to the incentive to invent and innovate and the chaff from size of the wheatdeadweight monopoly losses. Developing The latter includes strategic ways to construct undesirable patent thickets is relatively easy , build patent portfolios to do extract additional bargaining power in this regime since the patent examination process is cursorycross-licensing arrangements, or other rent-seeking activities...the average cost of dispute resolution will be high}, tags={Designing patent system#IPR Reform}, filename={Palangkaraya Webster Jensen Webster (20042011) - Achieving The Optimal Power Of Misclassification Between Patent RightsOffices.pdf}
}
@article{kato2004patentparedes2006written, title={Written Description Requirement in Nanotechnology: Clearing a Patent pool enhances market competitionThicket}, author={KatoParedes, AJ.P.}, journal={International Review of Law and EconomicsJ. Pat. \& Trademark Off. Soc'y}, volume={24}, number={288}, pages={255--268489}, year={20042006}, publisherabstract={Elsevier}Nanotechnology is an emerging technology, and as an emerging technology, there are certain intellectual property issues surrounding the appropriate protection for nanotechnology. Broadly speaking, abstract={This article investigates a pool nanotechnology is the manufacture of structures and manipulation of substitute patents that matter within dimensions below 100 nanometers, where unique phenomena enable firms to reduce marginal costs novel applications. At the nanoscale, the physical, chemical, and biological properties of materials differ in fundamental and valuable ways from the properties of productionindividual atoms and molecules or bulk matter. Contrary ' Researchers and companies are attempting at applying these novel properties to the general belief, it is shown that a pool wide-range of substitute patents may promote competition under certain conditions, thereby enhancing social welfare applications and industries.' One important intellectual property issue in addressing nanotechnology is the product marketpatenting of innovative techniques and compositions of matter which are necessary for downstream innovation. The intuition notion of a patent thicket is where an overlapping set of patent rights requires that when firms compete in licensing fees, resultant low licensing fees discourage firms those seeking to commercialize new technology obtain licenses from licensing to outside firmsmultiple patentees. This leads to fewer licensees than when a patent pool is formed.}If you get monopoly rights down at the bottom, discipline={Econ}, research_type={Model, Theory}, industry={General}, thicket_stance={Pro}, thicket_stance_extract={In "you may stifle competition that uses those patents later on and so the field breadth and utilization of economicspatent rights can be used not only to stifle competition, but also have adverse effects in the long run on innovation." The patent pools are analyzed thicket problem in nanotechnology has been suggested by a recent report by Shapiro LuxResearch (2000hereinafter "LuxReport"). He considers the role of patent pools in “patent thicket,” which means indicating that there are so many patents issued that a single new patent 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 likely infringe on some other be forced to license patentsfrom many different sources. This situation discourages and retards researchPotentially, development and commercializationthere will be significant transactional costs for further nanotechnology developments due to these overlapping claims.}Moreover, thicket_def={Refs Shapiro}, thicket_def_extract={In the field quality of economicsthese nanotechnology patents has been repeatedly called into question, patent pools are analyzed by Shapiro (2000). He considers " so the role navigation of a 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 have to be around these questionable patents. This situation discourages and retards research, development and commercialization.}, tags={The legal principles in the written description requirement could clear some of this patent pools, substitute patents, welfare}, filename={Kato (2004) - Patent Pool Enhances Market Competition.pdf} } @article{kesselheim2005universitythicket by narrowing overlapping claims in nanotechnology during examination, title={University-based science and biotechnology products}litigation, author={Kesselheim, A.S. and Avorn, Jespecially in postgrant procedures.}, journal={JAMA: This paper generally discusses 1) the journal background of the American Medical Association}, volume={293}, number={7}, pages={850--854}, year={2005}, publisher={Am Med Assoc}, abstract={The pharmaceutical nanomaterials in the LuxReport 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 thicket; 2) the future of innovation in biomedical science in legal principles within 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 written description requirement; 3) why 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, written description requirement should be deprived used; 4) the application of revenue for pursuing novel therapeu- tics or other seminal research work that may not be patentable. Recent court cases illustrate the inherent conflicts legal principles within the written description requirement to nanomaterials discussed in allocating ownership the LuxReport; and control of basic biomedical discoveries. Several options exist to avoid 5) proposals for 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 written description requirement for biotechnology innovations that depend on prior research that was performedthe USPTO, financedthe Federal Circuit, or both in the public sectorand postgrant procedures.}, discipline={BiologyLaw},
research_type={Discussion},
industry={Biotechnology, PharmaceuticalNanotech}, thicket_stance={Weak Assumed Pro}, thicket_stance_extract={Basic investigations conducted at universities and academic medical cen- tersWhile many companies will want to use these nanomaterials, usually publicly funded, often pro- duce key insights about the mecha- nisms underlying physiological function and disease LuxReport statesthese companies will be forced to license patents from many different sources. Private corpora- tions can then commercialize Potentially, there will be significant transactional costs for further nanotechnology developments due to these insights by designing and marketing new therapeutics or other medical tech- nologies based on themoverlapping claims. In this chain Moreover, the quality of developmentthese nanotechnology patents has been repeatedly called into question, allowing patenting " so the navigation of each incremental innovation could risk generating a dense patent thicket of overlap- ping intellectual rights and thus hinder research effortswill have to be around these questionable patents.}, thicket_def={quotes shapiro#B1, References Shapiro, Overlapping Patents, Broad Patents, Dubious Patents, Unspecified Blocking Mechanism (Not DHCI), Diversely-Held, Cummulative Invention}, thicket_def_extract={Basic investigations conducted 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 universities the bottom, "you may stifle competition that uses those patents later on and academic medical cen- ters, usually publicly funded, often pro- duce key insights about so the mecha- nisms underlying physiological function breadth and disease states. Private corpora- tions utilization of patent rights can then commercialize these insights by designing and marketing new therapeutics or other medical tech- nologies based be used not only to stifle competition, but also have adverse effects in the long run on theminnovation."... In this chain indicating that many patents have been filed relating to nanomaterials with their claims overlapping... Moreover, the quality of developmentthese nanotechnology patents has been repeatedly called into question, allowing patenting " so the navigation of each incremental innovation could risk generating a dense patent thicket of overlap- ping intellectual rights and thus hinder research effortswill have to be around these questionable patents.}, tags={University research, upstream patents, defining lineage of products#IPR Reform}, filename={Kesselheim Avorn Paredes (20052006) - University Based Science And Biotechnology ProductsWritten Description Requirement In Nanotechnology.pdf}
}
@article{kim2004verticalrai2003engaging, title={Vertical Structure Engaging Facts and Policy: A Multi-Institutional Approach to Patent PoolsSystem Reform}, author={KimRai, S.HArti K.}, journal={Columbia Law Review of Industrial Organization}, volume={25103}, number={35}, pages={231-pp. 1035-2501135}, yearabstract ={2004}The Court of Appeals for the Federal Circuit, publisher={Springer}charged with adjudicating appeals in patent cases, abstract={It is well known has adopted an unusual approach that patent pools can enhance efficiency arrogates power over fact finding while it simultaneously invokes rule-formalism. Although the Federal Circuit's approach may be justified by eliminating the comfact- plements problemfinding 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 paper investigates how Article argues that because of the interdependence of the various institutions within the presence patent system, reform of vertically integrated firms affects the economic impact system must be both multi-institutional and closely attentive to the institutional competence of a patent poolthe 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. Without a patent poolAccordingly, Congress should endow the system with improved fact-finding expertise through the presence institution of specialized trial courts. As for actual policy formulation, each of integrated firms may either increase or decrease the final product price as there are two countervailing effects – reduced double marginalization available institutional options--the legislature, the PTO, and raising rivals’ coststhe courts--has substantial associated liabilities. HoweverOn balance, however, when there the Federal Circuit is a probably best positioned to formulate patent poolpolicy, vertical integration always lowers so long as the final product pricefact-finding expertise of inferior institutions is bolstered and additional appellate mechanisms are instituted. In conclusionBy paying attention to institutional design and revising our institutions accordingly, we can achieve the economic efficiency arguments for patent pools are enhanced when some firms are vertically integratedsystem we should have had all along.}, year = {2003}, publisher = {Columbia Law Review Association, Inc.}, copyright = {Copyright © 2003 Columbia Law Review Association, Inc.}, discipline={EconLaw}, research_type={Discussion, Theory, Mathematical},
industry={General},
thicket_stance={ProNeutral}, thicket_stance_extract={When distinct firms are selling inputs – all Defensive patenting has become particularly prominent in certain industries like the semiconductor industry, where innovation is cumulative, and a thicket of which are required for pro- duction relevant patents often exists. See Bronwyn H. Hall & Rosemarie Ham Ziedonis, The Patent Paradox Revisited: An Empirical Study of Patenting in the final product – they fail U.S. Semiconductor Industry, 1979-1995, 32 RAND J. Econ. 101, 104 (2001). In such industries, firms gain freedom to internalize operate through defensive patenting. Indeed, within the effect semiconductor industry, it appears that their royalty rates have on much of the increase in patenting per R&D dollar over the last two decades has been the demand for other inputsconsequence of defensive patenting. This results See id. (noting that firms "appear to be engaged in each 'patent portfolio races' aimed at reducing concerns about being held up by external patent holder setting too high a royalty rateowners and at negotiating access to external technologies on more favorable terms"). A ‘‘patent pool’’ has begun According to attract widespread attention as a solution Hall and Ziedonis, this increase in defensive patenting "is causally related to both the transaction cost and compro-patent shift in the U.S. legal environment in the 1980s." Id. I discuss this alleged "pro- plements problemspatent" shift infra Part III.B. }, thicket_def={Refs shapiro and heller#A, #C1, References Heller/eisenbergEisenberg, Transaction Costs, Dubious Patents, Unspecified Blocking Mechanism}, thicket_def_extract={The proliferation of fragmented and overlapping patent rights Defensive patenting has become particularly prominent in certain industries like the semiconductor industry, where innovation is increasingly being recognized as a serious problem; referred to as a ‘‘patent thicket’’ (or ‘‘anticommons’’ by Heller cumulative, and Eisenberg, 1998). Besides the additional transaction costs incurred in navigating a patent thicket, Shapiro (2001) has called attention to another source of inefficiency – the complements problemrelevant patents often exists.... When distinct firms are selling inputs – all of which are required for pro- duction of Moreover, the final product – they fail to internalize the effect guidelines on utility incorporate, at least implicitly, economic concerns that their royalty rates have on setting the demand for other inputs. This results in each patent holder setting utility standard too high low could impede scientific progress by creating a royalty rate. transaction-cost-heavy thicket of patents on basic research}, tags={vertical integration#IPR Reform, patent pools, raising rivals' costs, double marginalizationReview of Patent Validity}, filename={Kim Rai (20042003) - Vertical Structure Engaging Facts And Patent PoolsPolicy.pdf}
}
abstract={},
discipline={Law},
research_type={Commentary, Discussion},
industry={General},
thicket_stance={Assumed ProNeutral}, thicket_stance_extract={All three developments have led to what The competitive offensive advantage associated with a patent thicket can be high. It follows, of course, that there is perceived as also a marked increase in junk patents, substantial defensive advantage as well as what Carl Shapiro has termed . The result may be a “patent thicket”—overlapping sets of patent rights leading “race” to a maze of cross-licensing agreementsgrow one’s IP portfolio. Unfortunately, however, it is not clear whether that race will be “to the top” (i.e., in the social interest), as well as or “to the rise bottom” (i.e., harmful from a social point of hold-up litigationview).}, thicket_def={Refs #C1, #C2, References Shapiro, Quotes Shapiro, Dubious Patents, Single Firm, Unspecified Blocking Mechanism (Not DHCI), Strategic Patenting (Bad)}, thicket_def_extract={All three developments have led In this case, a firm with a large patent portfolio surrounding competitors’ key technologies (i.e., a “patent thicket”) has the opportunity to what use its patent portfolio to lessen competition in the final goods market.17 Suppose, for example, that within a patent thicket are a number of patents of dubious merit (perhaps some were obtained through inequitable conduct) and it is perceived costly to innovate around assertions of infringement.... Shapiro (2001) characterizes a patent thicket as a marked increase “dense web of overlapping 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 junk which a patent thicket can be used to strategic advantage. First, a company can patent new technology before potential competitors, including features and technologies that it never intends to commercialize (socalled “submarine patents).21 The patent thicket creates considerable uncertainty for competitors about whether their technology infringes, as well as what Carl Shapiro has termed especially with respect to a “patent thicket”—overlapping sets of hidden or submarine patent rights leading to . Even if a maze of cross-licensing agreementsfirm is not practicing submarine patents, as well as a patent thicket makes it hard to design and sell products without running the rise risk of hold-up litigationinfringing on a competitor’s patent.... A patent thicket is an especially effective means of extracting concessions from rivals.}, tags={supreme court#Firm Strategy, Value from Position/Portfolio, casesDefensive/Offensive Patenting, patent reformPackage Licenses}, filename={King Rubinfeld Maness (20072004) - Clearing The Patent ThicketStrategic Use Of Patents Implications For Antitrust.pdf}
}
@techreportarticle{lampe2009patentrey2012abuse, title={Do Patent Pools Encourage Innovation? Evidence from the 19th-century Sewing Machine IndustryAbuse of Dominance and Licensing of Intellectual Property}, author={LampeRey, R.LP. and MoserSalant, PD.}, yearjournal={2009International Journal of Industrial Organization}, institutionyear={National Bureau of Economic Research2012}, abstract={Members This paper examines the impact of the licensing policies of one or more upstream owners of a patent pool agree essential intellectual property (IP hereafter) on the downstream firms that require access to use a set of patents that IP, as well as if they were jointly owned by all members on consumers and license them as social welfare. The paper considers a package to other firmsmodel in which there is product differentiation downstream. Regulators favor pools as a means to encourage innovation: Pools are expected to reduce litigation risks for their members and lower license License fees and transactions fixed entry costs for other firmsdetermine the number of downstream competitors and thus variety. This paper uses We first consider the example case where there is a single upstream owner of essential IP. Increasing the first patent pool in Unumber of licenses enhances product variety, which creates added value, but it also intensifies downstream competition, which dissipates profits.S. historyWe derive conditions under which the upstream IP monopoly will then want to provide an excessive or insufficient number of licenses, the Sewing Machine Combination (1856-1877) relative to perform the first empirical test number that maximizes consumer surplus or social welfare.When there are multiple owners of essential IP, royalty stacking can reduce the effects number of a patent pool on innovationthe downstream licensees, but also the downstream equilibrium prices the consumers face. Contrary The paper derives conditions determining whether this reduction in downstream price and variety is beneficial to theoretical predictionsconsumers or society. Finally, the sewing machine pool appears to have discouraged patenting and innovation, in particular for paper explores the members impact of alternative licensing policies. With fixed license fees or royalties expressed as a percentage of the pool. Data on stitches per minuteprice, as an objectively quantifiable measure upstream IP owner cannot control the intensity of innovationdownstream competition. In contrast, confirm these findingsvolumebased license fees (i.e. Innovation for both members , per-unit access fees), do permit an upstream owner to control downstream competition and outside firms slowed as soon as to replicate the pool had been established outcome of complete integration. The paper also shows that vertical integration can have little impact on downstream competition and resumed only after it had dissolvedlicensing terms when IP owners charge fixed or volume-based access fees.},
discipline={Econ},
research_type={EmpiricalTheory}, industry={SewingGeneral}, thicket_stance={Assumed Pro}, thicket_stance_extract={Almost one hundred years later, patent pools Patent thickets have re-emerged as long been a remedy concern due to the potential for industries that are plagued by litigation delaying deployment of products and patent blocking, which occurs when owners of competing patents prevent the commercialization of new technologiesadversely affecting consumers.}, thicket_def={Refs shapiro#A, Complementary Inputs, Diversely-Held, Deliberate Royalty Stacking}, thicket_def_extract={Patent thickets, layers of licenses a firm needs to be able to offer products that embody technologies owned by multiple firms, and licensing policies have drawn increasing scrutiny from policy makers. Patent thickets involve complementary products, which gives rise to double marginalization - the so-called royalty stacking problem - and has the potential to retard diffusion of new technologies and reduce consumer welfare.}, tags={Patent pools#Private Mechanisms, Licensing, incentives to innovationRoyalties}, filename={Lampe Moser Rey Salant (20092012) - Do Patent Pools Encourage InnovationAbuse Of Dominance And Licensing Of Intellectual Property.pdf}
}
@techreportbook{lampe2012patentschacht2006patent, title={Do Patent Pools Encourage Innovation? Evidence from 20 US Reform: Issues in the Biomedical and Software Industries under the New Deal}, author={LampeSchacht, RW.L. and Moser, PH.}, year={20122006}, institutionpublisher={National Bureau of Economic Congressional ResearchService (7 April 2006), available at: http://sharp.sefora.org/wp-content/uploads/2007/12/rl33367.pdf},
abstract={},
discipline={EconPolicy Report}, research_type={Empirical, Econometric ModelDiscussion}, industry={GeneralBiotech, Software}, thicket_stance={Weak ProNeutral}, thicket_stance_extract={For example, Concerns have been expressed in the creation of a pool may reduce academic community that the need for member firms propensity to create patent thickets by reducing and the threat extensive use of litigation (ecross licensing has resulted in a “patent thicket” where ownership of patent title is used to block others from innovating..g. Others agree that innovation in the software industry is not hindered by a patent thicket. In one study where actual software companies and investors were surveyed, Shapiro 2001; Gilbert 2004)the analyst found new companies were not concerned with existing patent portfolios as a barrier to their work...}, thicket_def={refs shapiro#A, #B, #D, References Heller/Eisenberg, Unspecified Blocking Mechanism, Single Firm}, thicket_def_extract={We also investigate whether part of the observed decline may be driven by a reduction Concerns have been expressed in lower-quality or “strategic” patents. For example, the creation of a pool may reduce academic community that the need for member firms propensity to create patent thickets by reducing and the threat extensive use of litigation (ecross licensing has resulted in a “patent thicket” where ownership of patent title is used to block others from innovating...gOthers agree that innovation in the software industry is not hindered by a patent thicket.In one study where actual software companies and investors were surveyed, Shapiro 2001; Gilbert 2004)the analyst found new companies were not concerned with existing patent portfolios as a barrier to their work}, tags={patent poolsPatent Reform, effects on innovationexistence of thickets}, filename={Lampe Moser [[Schacht (20122006) - Do Patent Pools Encourage InnovationReform Issues In The Biomedical And Software Industries]].pdf}
}
@article{leaffer2009patentshapiro2003antitrust, title={Antitrust Limits to Patent Misuse and InnovationSettlements}, author={LeafferShapiro, MC.}, journal={J. High Tech. L.}, volume={10RAND Journal of Economics}, pages={142391--411}, year={20092003}, abstract={Patents, patent litigation, and patent settlements increasingly influence competition. Settlements of patent disputes come in many forms,including licensing and cross-licensing agreements, patent pools, mergers, and joint ventures. While frequently procompetitive, such settlements can stifle competition and harm consumers. I propose a specific antitrust rule limiting such settlements: a settlement must leave consumers at least as well off as they would have been from ongoing patent litigation. After establishing that profitable settlements satisfying this constraint generally exist, I show how this antitrust rule can be used to evaluate three types of settlements: mergers, patent pools, and negotiated entry dates.}, discipline={LawEcon}, research_type={Written Theory},
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={They are often viewed as the “simplest solution” to intellectual property rights As described in Shapiro (IPR2001) bottlenecks with multiple stakeholders that have overlapping sets of IP (a.k., more and more companies are facing a patent thickets) or are uncertain if there is possible infringement of patent issues (a.k.a. Patent Hold-Up)thicket requiring them to obtain multiple licenses to bring their products safely to market.}, thicket_def={def37#A, #C1, #C2, References Shapiro, Diversely-Held, Unspecified Blocking Mechanism}, thicket_def_extract={Making matters even more complex, many products can potentially infringe multiple patents.As described in Shapiro (2001), more and more companies are facing a patent thicket requiring them to obtain multiple licenses to bring their products safely to market..The need to negotiate licenses or other settlements of intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets disputes is made even greater because of the danger of IP (hidden or submarine patents, which make it all too easy for a company unintentionally to infringe on apatent that was not yet issued when the company's product was designed.k2 Likewise, the need to resolve intellectual property disputes is arguably made yet greatert o the extent thatt he U.S. Patenta nd TrademarkO ffice has issued "bad"p atents, i.e., patentso n technology that does not in fact meet the novelty requirements.a patent thickets)}, tags={patent pool#Firm Strategy, Mergers, #Private Mechanisms, Pools, Settlements, nanotechnologyNegotiated Entry Dates}, filename={Lee Shapiro (20062003) - Examining The Viability Of Patent Pools For The Growing Nanotechnology Antitrust Limits To Patent ThicketSettlements.pdf}
}
@article{lei2009patentssabety2004nanotechnology, title={Patents versus PatentingNanotechnology innovation and the patent thicket: Implications of Intellectual Property Protection for Biological ResearchWhich IP policies promote growth}, author={LeiSabety, ZT. and Juneja}, R journal={Alb. and Wright, BLJ Sci.D\& Tech.}, volume={15}, pages={477}, year={20092004}, abstract={A new survey shows scientists consider the proliferation of intellectual property protection to have a strongly negative effect on research.}, discipline={BiologyLaw}, research_type={Survey, RegressionDiscussion}, industry={BiologyNanotech}, thicket_stance={AntiNeutral}, thicket_stance_extract={Our respondents do not encounter an anticommons or a On the one hand, the fear of the patent thickethas been raised: "[i]f you get monopoly rights down at the bottom, you may stifle competition that uses those patents later on and so . Rather. . the breadth and utilization of patent rights can be used not only to stifle competition, they believe that institutionally mandated MTAs put sand but also have adverse effects in the wheels of a lively system of intradisciplinary exchanges of research toolslong run on innovation. Seeing no countervailing effect on "9On the supply other hand, encouraging private investment in commercialization has also been raised: "[b]y enabling corporations to negotiate exclusive licenses of these toolspromising technologies [that were publicly funded], they conclude that patenting impedes ... [this] encourage[s] them to invest in the progress of 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={cites #A, #B1, Quotes Shapiro, References Shapiro and heller/eisenberg, Unspecified Blocking Mechanism}, thicket_def_extract={This question has been Yet, several commentators have raised concerns that the extraordinary pace of particular concern for the biological sciences, where production and exchange patenting of biological ‘research tools’ are important for ongoing scientific progress. Recent studies addressing this issue nanotechnology5 will result in the United States1,2, Germany3, Australia4 a patent deadlock6 that will stifle innovation and Japan5 find that “patent thickets”6 or impede economic growth.7... Carl Shapiro defines "patent thicket" as "an “anticommons”7 rarely affect the research overlapping set of academic scientistspatent rights requiring that those seeking to commercialize new technology obtain licenses from multiple patentees."}, tags={research access#Private Mechanisms, Licensing, open source#IPR Reform, IP RightsGovernment Funding}, filename={Lei Juneja Wright Sabety (20092004) - Patents Versus PatentingNanotechnology Innovation And The Patent Thicket.pdf}
}
@article{lerner2005theeconomicssantore2010patent, title = {The Economics Patent Pools as a Solution to Efficient Licensing of Technology Sharing: Open Source and BeyondComplementary Patents? Some Experimental Evidence}, author = {LernerRudy Santore and Michael McKee, Josh and Tirole, JeanDavid Bjornstad}, journal = {The Journal of Economic PerspectivesLaw and Economics}, volume = {1953}, number = {21}, pages = {pp. 99167-120183}, 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 = {This paper reviews our understanding 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 growing open source movement. We highlight how many aspects package of open source software appear initially puzzling to an economistpatents. As we have acknowledgeRoyalties, because they function as excise taxes, our ability add to answer confidently many marginal costs, resulting in higher prices and reduced quantities of the issues raised here questions is likely downstream product and lower payoffs to increase as the open source movement itself grows and evolvespatent holders. At the same timeUsing fixed fees eliminates this inefficiency but yields a more complex coordination game in which there are multiple equilibria, it is heartening to us how much of open source activities which are very fragile in that small mistakes can be understood within existing economic frameworks, despite lead the presence of claims downstream firm to not license the contrarytechnology, resulting in inefficient outcomes. The labor and industrial organization literatures provide lenses through which We report on a laboratory market investigation of the structure efficiency effects of coordinated pricing of open source projects, patents in a patent pool. We find that pool-like pricing agreements can yield fewer coordination failures in the role pricing of contributors, and the movement's ongoing evolution can be viewedcomplementary patents.}, year = {2005}, publisher = {American Economic Association}, copyright = {Copyright © 2005 American Economic Association},
discipline={Econ},
research_type={DiscussionTheory, Written TheoryEmpirical},
industry={General},
thicket_stance={Assumed Pro}, thicket_stance_extract={Firms can also address these problems in non-open-source ways, such as patent pools, standard-setting organizationsMore recently, and self-imposed commitments. In a patent poolNational Academy of Sciences (2006) committee studied the issue, firms blend their patents with those concluding that even though evidence of other firms. These pools allow users blocking or market failures has yet to access a number of firms’ patents simultaneouslyemerge, thereby avoiding the “patent thicketanticommons or patent thickets may well emerge as profit opportunities in biomedical markets grow.”}, thicket_def={def38#A, References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={SecondRoyalty fees are an inherently inefficient mechanism for pricing patents. In effect, open source avoids 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 compounded when a set of patents is required to produce the good.3 Each patent holder sets a use fee (a royalty), and since each of these acts as an excise tax on the downstream producer, the cumulative effect of several fees being charged (what Lemley and Shapiro [2007] refer to as “patent thicket” when multiple firms have overlapping intellectual property rightsstacking”) is a higher cost of producing the good and a smaller quantity of output. The welfare losses consist of the sum of the patent holder’s lost returns, the lost profits of the downstream firm, and at least one party attempts to extract 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 a “patent thicket” in which possible outcomes include excessively high fee fees for its particular contributionthe use of the patent set, uncertainty regarding potential patent infringement, and, in the limit, holdup problems.}, tags={open source#Private Mechanisms, patent poolsPools, Complements, Licensing}, filename={Lerner Tirole Santore McKee Bjornstad (20052010) - The Economics Patent Pools As A Solution To Efficient Licensing Of Technology Sharing Open Source And BeyondComplementary Patents.pdf}
}
@article{lerner2003structureschmidt2008complementary, title={The Complementary Patents and Market Structure and Performance of Patent Pools: Empirical Evidence}, author={LernerSchmidt, J. and Strojwas, M. and Tirole, JK.}, journalyear={Working paper2008}, yearpublisher={2003CEPR Discussion Paper No. DP7005}, abstract={Many high technology goods are based on standards that require access to several patents that are owned by different IP holders. We investigate the royalties chosen by IP holders under different market structures. Vertical integration of an IP holder and a downstream producer solves the double mark-up problem between these firms. Nevertheless, it may raise royalty rates and reduce output as compared to non-integration. Horizontal integration 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 innovation.},
discipline={Econ},
research_type={Empirical, RegressionTheory},
industry={General},
thicket_stance={Assumed Pro}, thicket_stance_extract={Numerous commentators have suggested that This “patent thicket” (Shapiro, 2001) gives rise to a complements problem: each patent holder does not internalize the negative external effect on the proliferation revenues of these awards has had socially detrimental consequences: overlapping intellectual property rights may make it difficult for inventors to commercialize new innovationsthe other patent holders when setting his royalties, so the sum of all royalties will be inefficiently high. (Gallini [2002] reviews this literature.)}, thicket_def={def39#A, References Shapiro, Complementary Inputs, Diversely-Held}, thicket_def_extract={A more benign alternative is that firms enter into patent pools to solve the This “patent thicket” (Shapiro, 2001) gives rise to a complements problem: each patent holder does not internalize the presence negative external effect on the revenues of overlapping intellectual property holdings that make it difficult for third parties to license the other patent holdings and develop new technologiesholders when setting his royalties, so the sum of all royalties will be inefficiently high.}, tags={#Private Mechanisms, Pools, Licensing, Standards}, filename={Lerner Strojwas Tirole Schmidt (20032008) - The Complementary Patents And Market Structure And Performance Of Patent Pools Empirical Evidence.pdf}
}
@techreportarticle{lerner2002efficientschneider2008fences, title={Efficient Fences and Competition in Patent PoolsRaces}, author={LernerSchneider, JC. and Tirole}, journal={International Journal of Industrial Organization}, volume={26}, J. number={6}, yearpages={20021348--1364}, institutionyear={National Bureau of Economic Research2008}, abstract={The This paper builds a tractable model studies the behaviour of ?firms facing the decision to create a patent poolfence, an agreement among patent owners to license de?fined as a set portfolio of their substitute patents to one another or to third parties. It Þrst provides a necessary and sufficient condition for We set up a patent pool race model, where ?firms can decide either to patent their inventions, or to enhance welfarerely on secrecy. It shows is shown that requiring pool members to be able to independently license patents matters if and only if the pool is otherwise welfare reducingfi?rms build patent fences, a property that allows when the antitrust authorities to use this requirement to screen out unattractive pools. The paper then undertakes a number duopoly profi?ts net of extensions: cases where patents differ in importance, where asymmetric blocking patterns exist, and where licensors R&D costs are also licenceespositive. We also undertake some initial explorations 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 impact of pools on innovationcompetitor?s. We conclude by showing that Furthermore, we compare the model under the analysis has broader applicability than poolsFirst-to-Invent and First-to-File legal rules. Finally, as it is also relevant to a number we analyze the welfare implications of co-marketing arrangementspatent fences.},
discipline={Econ},
research_type={Theory},
industry={General},
thicket_stance={Weak Assumed Pro}, thicket_stance_extract={Innovations While the issue of "thickets" of complementary technologies in computer hardwarecumulative innovations has been extensively analyzed2, softwareas well as the institutional solutions to overcome this problem (Lerner and Tirole, 2005 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 severeShapiro, 2001), little attention has been paid to fencing patents so far.}, thicket_def={def40#A, #B2, #D, Complementary Inputs, Single Firm}, thicket_def_extract={Innovations in computer hardwareMore precisely, softwarefirms will patent a coherent group of inventions, and biotechnology often build on which form what is sometimes called a patent "bulk", aimed at protecting one product. The "bulk" can either be a number "fence" of other innovations owned by substitute patents or a diverse set "thicket" of owners complementary patents (see Reitzig, 2004 and Cohen et al., 2000).... In complex product industries, where innovation is highly cumulative, ?rms use patents to force rivals into negotiations and, as a result patent thicketconsequence, they create "thickets" problems - overlapping patent claims that preclude the adoption of new complementary technologies - can be severe.}, tags={Patent pools#Firm Strategy, #Private Mechanisms, Regime Selection, welfareSecrecy}, filename={Lerner Tirole Schneider (20022008) - Efficient Fences And Competition In Patent PoolsRaces.pdf}
}
discipline={Econ},
research_type={Theory},
industry={General, Policy}, thicket_stance={ProWeak Anti}, thicket_stance_extract={Many observers have suggested 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 problems where key patents are widely held affect many emerging industriesproblem is severe. Patent thickets may lead to three problems. First, royalty stacking may result: each individual patent holder may charge a royalty A problem 26 with this argument is that seems reasonable when viewed in isolation, but together they represent an unreasonable burden. Second, even if other firms agree the returns 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 Finallymajor innovations would be reduced by collective negotiation, not just the very process of arranging returns to the needed licenses may prove minor advances that contribute more to be time consuming. Patent pools thus offer a one-stop shop through which these problems can be avoidedpatent thickets than to real progress.}, thicket_def={def41#C1-ST, References Shapiro, Dubious Patents, Unspecified Blocking Mechanism (Not DHCI)}, thicket_def_extract={Many observers Patent Office has been awarding patents too easily and that US courts have suggested been too willing to uphold the validity of dubious patents.9 To the extent that patentpolicy 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-thicket problems - where key patents are widely held affect many emerging industriessetting must pass.}, tags={patent pools#Private Mechanisms, licensingStandards, grantbackSSOs, royalties#IPR Reform, substitutes and complementsBalance with Anti-trust, welfarePrevent Hold-up/Royalty Stacking}, filename={Lerner Tirole Schmalensee (20082009) - Public Standard Setting Innovation Specialists And Competition Policy Toward Patent Pools.pdf}
}
@article{lerner2007impactshand2007trends, title={What is Trends in Intellectual Property and Nanotechnology: Implications for the Impact of Software Patent Shifts? Evidence from Lotus v. BorlandGlobal South}, author={LernerShand, JH. and ZhuWetter, FK.J.}, journal={International Journal of Industrial OrganizationIntellectual Property Rights}, volume={25}, number={312}, pages={511111--529117},
year={2007},
abstract={Economists have debated the extent The race is on to which strengthening patent protection spurs or detracts from technological innovationwin exclusive monopoly patents on nano-scale materials, devices and processes. This paper examines The US National Science Foundation predicts that the reduction immensely broad power and scope of software copyright protection 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 the Lotus v. Borland decision. If its infancy, patent thickets on fundamental nano-scale materials, tools and copyright protections processes are substitutes, weakening of one form should already creating thorny barriers for would-be associated with an increased reliance on the otherinnovators. We find Industry analysts warn that , 'IP roadblocks could severely retard the firms affected 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 diminution World trade Organization's Trade-Related Asapects of copyright protection disproportionately accelerated their patenting in subsequent yearsIntellectual Property (TRIPS) to acccommodate nanotechnology-related inventions. But little evidence can be found Despite rosy predictions that nanotech will provide a technical fix for any harmful effects on firms' performance health, sustainable energy, and incentive environmental security in the South, researchers in the developing world are likely to innovate: find that participation in fact, the increased reliance on patents proprietary 'nanotech revolution' is correlated with growth in measures such as sales highly restricted by patent tolbooths, obliging them to pay royalties and R&D expenditureslicensing fees to gain access.}, discipline={EconLaw}, research_type={Empirical, Regression, ModelDiscussion}, industry={Software, TechnologyNanotech},
thicket_stance={Weak Pro},
thicket_stance_extract={The environment Although industry analysts assert that nanotech is a complex one: many other changesin its infancy, such as the widespread dissemination of the Internetpatent thickets on fundamental nano-scale materials, may have differentially affected firms during this period. While our result contradicts the claim by Bessen tools and Hunt (2004) that software patents substitute processes are already creating thorny barriers 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 industrywould-be innovators. 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={refs shapiro#B, Broad Patents, Unspecified Blocking Mechanism, Cummulative Invention}, thicket_def_extract={ThereforeWill overly broad patents or 'patent thickets' on emerging nano-scale materials, processes and devices prevent researchers in the patent thicket problem – an overlapping set of patent rights requiring those seeking to commercialize new technology obtain licenses global South from multiple patentees (Shapiro, 2001) – could still exist}participating in the nanotech revolution?}, tags={uncertaintyTRIPS, patent and copyright protectionsIndustry Commentary}, filename={Lerner Zhu Shand Wetter (2007) - What Is The Impact Of Software Patent ShiftsTrends In Intellectual Property And Nanotechnology.pdf}
}
@article{lin2001researchsomaya2003strategic, title={Research Versus Development: Strategic Determinants of Decisions Not to Settle Patent Pooling, Innovation and Standardization in the Software IndustryLitigation}, author={LinSomaya, D.Deepak}, journal={J. Marshall Rev. Intell. Prop. L.Strategic Management Journal}, volume={124}, pagesnumber ={i1}, yearpages ={2001pp. 17-38}, abstract={Despite 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 impressive pace use of modern inventionpatents 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 certain “patent thicket” effect sample selection probit model provide support for the strategic stakes hypotheses, while the evidence for mutual hold-up is inconclusive. Interindustry comparisons show that may be impeding what has become 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 increasingly difficult road to the commercialization of new technologiesimportant role in computer patent suits. Specifically}, as new technologies build upon old technologies year = {2003}, they necessarily become increasingly complex publisher = {Wiley}, and as a result copyright = {Copyright © 2003 Wiley}, abstract={Settlement outcomes in patent litigation are often subject to the protection of multiple patents, covering both the new cumulative technologies modeled as well as old foundational resulting from strategies pursued by firms with their patented technologies. The difficulties Hypotheses are derived for two types of influences: the use of acquiring licenses (e.g. hold-out problems) for all such patents has the potential as isolating mechanisms to stifle the development protect valuable strategic stakes, and commercialization of these new their 'defensive' role in obtaining access to external technologiesthrough mutual hold-up. As such, patent pooling, once condemned as facilitating antitrust violations in past eras, has been reintroduced as Parameter estimates from a practice thatsample selection probit model provide support for the strategic stakes hypotheses, if properly structured, has potentially strong prowhile the evidence for mutual hold-competitive benefitsup is inconclusive. Patent pooling has the potential to reduce the level Interindustry comparisons show that nonsettlement of patent suits in both research medicines and invention computers is increased by strategic stakes and, in new technologies that can compete with an incumbent standard. Recent patent jurisprudence and lenient federal antitrust agency of recent patent pooling proposals seem addition, mutual hold-up appears to create play an environment that encourages the resurgence of important role in computer patent poolingsuits.}, discipline={LawMgmt}, research_type={Written Theory, Empirical}, industry={SoftwareICT, TechnologyBiotech}, thicket_stance={Assumed ProAnti}, thicket_stance_extract={Despite When strong, watertight patents are available, as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). On the impressive pace other hand, in systems products industries, thickets of modern invention, commentators have observed a certain “patent thicket” effect that patents may be impeding what has become an increasingly difficult road necessary to foil attempts to invent around the commercialization of new technologiespatent, and obtain a robust patent position.1 SpecificallyMoreover, as new technologies build upon old technologies, they necessarily defen sive patenting?the building of large patent port folios may become increasingly complexnecessary if rivals, and as aided by a resultstrong enforcement regime, are often subject able to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies.2 The difficulties of acquiring licenses effectively threaten to hold up a firm's commercial operations (e.g.Hall and Ziedonis, hold-out problems2001) for all such patents has the potential to stifle the development and commercialization of these new technologies.}, thicket_def={Refs Shapiro#B2, #D, Single Firm, Unspecified Blocking Mechanism, Strategic Patenting (Bad), Hold-up}, thicket_def_extract={Despite When strong, watertight patents are available, as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). On the impressive pace other hand, in systems products industries, thickets of modern invention, commentators have observed a certain “patent thicket” effect that patents may be impeding what has become an increasingly difficult road necessary to foil attempts to invent around the commercialization of new technologiespatent, and obtain a robust patent position.1 SpecificallyMoreover, as new technologies build upon old technologiesdefensive patenting, they necessarily the building of large patent port folios may become increasingly complexnecessary if rivals, and as aided by a resultstrong enforcement regime, are often subject able to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies.2 The difficulties of acquiring licenses effectively threaten to hold up a firm's commercial operations (e.g.Hall and Ziedonis, hold-out problems2001) for all such patents has the potential to stifle the development and commercialization of these new technologies.}, tags={Open standards#Firm Strategy, SSOValue from Position/Portfolio, #Private Mechanisms, Settlements}, filename={Lin Somaya (20012003) - Research Versus DevelopmentStrategic Determinants Of Decisions Not To Settle Patent Litigation.pdf}
}
@article{lin2011licensingsomaya2011innovation, title={Licensing Strategies Innovation in the Presence of Patent ThicketsMulti-Invention Contexts: Mapping Solutions to Technological and Intellectual Property Complexity}, author={LinSomaya, D. and Teece, LD. and Wakeman, S.}, journal={Journal of Product Innovation California ManagementReview}, volume={2853}, number={54}, pages={69847--72579},
year={2011},
publisher={JSTOR}, abstract={Many key industries (e.g., biomedical, pharmaceuticals, telecommunications, and information technologies) are characterized by cumulative innovations, where the introduction of a new product or service often requires many complementary technologies. When these technologies are protected by intellectual property rights owned by many firms, patent thickets exist, which researchers have argued may hinder the development of cumulative innovations. Specifically, patent thickets may lead to excessive royalty burdens for potential licensees, which is called ‘‘royalty stacking,’’ and if such costs are passed on to consumers, prices of products based on cumulative technologies will be driven up, dubbed as ‘‘double marginalization.’’ The literature, however, does not address these issues under different forms of licensing contracts. This article develops a game-theoretic model where a downstream firm seeks to license N patents that read on its product from upstream firms. It discusses a variety of licensing forms widely used in practice and attempts to discover whether royalty stacking and double marginalization occur under these forms of licenses. It also studies the impact of bargaining power between parties. It is found that when patent ownership becomes more fragmented, neither royalty stacking nor double marginalization occurs under profit-based royalty, fixed fee, and hybrid licenses. Such problems occur only under pure quantity-based or pure revenue-based royalty licenses when the downstream firm’s bargaining power is low. It is also shown that no matter how fragmented the ownership structure of patent is, hybrid licenses consisting of a fixed fee and a quantity- or revenue-based royalty rate lead to the same market outcomes as a fully integrated firm that owns all the patents and the downstream market. This article has interesting implications for both research and practice. First, the results show that even under the same patent ownership structure, different forms of licenses lead to quite different market outcomes. Therefore, it is suggested that firms and policy makers pay more attention to contractual forms of licenses when trying to minimize the negative impact of patent thickets. Second, the extant literature has largely assumed that quantity-based royalties are used, where double marginalization is the most severe. In practice, revenue-based royalties are most common, under which double marginalization is much milder. Third, the results show that patent pools can be most effective in mitigating royalty stacking and double marginalization when quantity-based or revenue-based royalties are the sole or primary payment form, especially when downstream firms have low bargaining power.}, discipline={EconMgmt}, 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 firmsScholars such as Michael Heller and Rebecca Eisenberg, patent thickets existCarl Shapiro, which researchers and others have argued may hinder drawn attention—arguably too much attention—to the transactional problems created for innovators by such dispersed ownership and the development density (or so-called thickets) of cumulative innovationspatents. Specifically, patent thickets may lead 58 Less attention has been paid by those authors to excessive royalty burdens the equally important role of patents for potential licensees, which is called ‘‘royalty stacking,’’ supporting innovation in multi-invention settings. Innovators and if such costs entrepreneurs are often among the most enthusiastic supporters of the patent system because they perceive it as providing safeguards from misappropriation of their inventions.59 Research has also shown that innovators are passed on often able to devise “working solutions” to consumersnavigate patent access concerns, prices of products based on cumulative technologies will and that patents may in turn be driven up, dubbed as ‘‘double marginalizationcrucial for enabling transactions in technology.’’60}, thicket_def={Refs #A-ST, References Heller/Eisenberg/Lessig/Shapiro/Bessen and Maskin, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={RelatedScholars such as Michael Heller and Rebecca Eisenberg, and often overlappingCarl Shapiro, patents owned by many entities are often described as ‘‘patent thickets’’ and researchers others have argued that patent thickets can be detrimental to innovation, especially in information industries drawn attention—arguably too much attention—to the transactional problems created for innovators by such as software dispersed ownership and the density (seeor so-called thickets) of patents... Indeed, among othersthe plethora of IP implicated, Heller and Eisenbergthe resulting complex licensing required, 1998; Lessighas led some academics to despair that some sections of the economy have—or are about to—experience a “tragedy of the anticommons” (i.e., 2001; Shapiro, 2001; Bessen and Maskin, 2009no one will use the patented technology because licensing the required technologies is simply too challenging or too expensive).}, tags={Patent Pools#Private Mechanisms, LicensingPre-emptive patenting, Royalties#Firm Strategy Value from Position/Portfolio, double marginalizationDefensive/Offensive Patenting, upstream, downstreamLicensing}, filename={Lin Somaya Teece Wakeman (2011) - Licensing Strategies Innovation In The Presence Of Patent ThicketsMulti Invention Contexts.pdf}
}
@article{macdonald2004meanstullis2005application, title={When Means Become EndsApplication of the Government License Defense to Federally Funded Nanotechnology Research: Considering the Impact of The Case for a Limited Patent Strategy on InnovationCompulsory Licensing Regime}, author={MacdonaldTullis, ST.K.}, journal={Information Economics and PolicyUCLA L. Rev.}, volume={16}, number={153}, pages={135--158279}, year={20042005}, 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 is supposed to be a means nanotechnologies may lead to an end, overcrowded nanotechnology patent thicket that end being could deter critical innovationand continued product development in the United States. Whether the innovation comes from the protection the patent affords the inventorAt this early stage of nanotechnology's life cycle, or from the dissemination increasing numbers of broad and potentially overlapping patents are being issued--while few nonexclusive licenses are being offered. Furthermore, the information lack of invention the significant case law provides little guidance on proper nanotechnology patent allowsscope and validity, while the patent is not meant decline of legal defenses such as experimental use leaves innovators exposed to be an end in itself. This seems to be changing, potential infringement liability for even the patent acquiring a strategic value increasingly independent most fundamental of innovationscientific research studies. If In this development has gone largely unnoticedComment, it may be because the patent system tends to be viewed from author proposes that the U.S. government exercises the entrenched perspectives full extent of lawyers its rights under the twenty-five year old Bayh-Dole Act and economists, and of develop the government license defense to create a number limited patent compulsory licensing regime for the fruits of interest groups federally funded research. The author argues that justify their reliance on recipients of the system billions of dollars in terms 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 innovation it is supposed extent to encourage. These groups have never included small firms and developing countries in whose name they frequently defend the which an "infringing" act against a federally funded patent system. They may have some difficulty justifying falls along a spectrum of fair use, would provide a system whose strategic value is so divorced from its value means for overcoming the innovation-impeding effects of absolute exclusion rights.}, discipline={ManagementLaw}, research_type={Discussion, Commentary}, industry={Strategy, GeneralNanotech}, thicket_stance={Weak Assumed Pro}, thicket_stance_extract={The pharmaceutical industry has been instrumental in creating development of such a patent system for the pharmaceutical industrythicket could deter further innovation, appropriate to 6 and the orderly innovation active enforcement by nanotechnology patent holders of that industry. Acceptance their exclusivity rights ultimately could result in the creation of the innovation myth has meant that this logic is rarely challenged. Thus, for instance, development may relate a nanotechnology anticommons-a situation in which a scarce resource becomes prone to underuse because there are too many patents, not just one (Heller and Eisenberg, 1998). The costs of navigating through mazes of overlapping patent rights – through patent thickets – are likely owners holding the right to be considerable (Shapiro, 2001)exclude others from that resource, and are likely to be no one has an obstacle to innovationeffective privilege of use.}, thicket_def={refs shapiro#A, #B, References Shapiro, Overlapping Patents, Diversely-Held, Unspecified Blocking Mechanism}, thicket_def_extract={The costs Unfortunately, the rush to secure worldwide intellectual property rights in nanotechnology could lead to the development of navigating through mazes a "patent thicket." This term, coined by intellectual property scholars, refers to an overlapping set of overlapping patent rights – through patent thickets – are likely that requires researchers, inventors, and entrepreneurs seeking to commercialize new technologies to be considerable (Shapiro, 2001)..obtain licenses from multiple patentees.}, tags={strategic use of patents#IPR Reform, Compulsory Licensing}, filename={Macdonald Tullis (20042005) - When Means Become EndsApplication Of The Government License Defense To Federally Funded Nanotechnology Research.pdf}
}
@article{mallo2008patenttaylor2003american, title={American Patent-related Barriers to Market Entry Policy, Biotechnology, and African Agriculture: The Case for Generic Medicines in the European Union: A Review of Weaknesses in the Current European Patent System and Their Impact on Market Access of Generic MedicinesPolicy Change}, author={MalloTaylor, LM. and Roox, KR. and PikeCayford, J. and Brown}, A journal={Harv. and BeckerJL \& Tech.}, S. and Thaler volume={17}, G. pages={321}, journalyear={Journal of Generic Medicines: The Business Journal for the Generic Medicines Sector2003}, volumeabstract={5}, numberdiscipline={4Law}, pagesresearch_type={255--280Theory}, yearindustry={2008Biotech}, publisherthicket_stance={SAGE PublicationsPro}, abstractthicket_stance_extract={Patents are effective tools for promoting innovation in the pharmaceutical sector. Originator companies should be able to recoup their R & D investments during the term of the basic patent / SPC on an active pharmaceutical substance. Generic competition should be available immediately after expiry of that term. The chances of market entry for generic medicines companies in all markets the day following expiry of the main basic patent in all European Union markets is, however, not possible or, at best, is extremely diffi cult. Due to a diminishing number of newly registered products and contracting product pipelines, originator companies may be tempted to unjustly prolong the patent monopoly of existing products. The result thicket is known as the ‘ evergreening ’ of a basic patent with the help of follow-on patents to keep generic competitors off the market. These follow-on patents are often weak or trivial and, upon careful examination, it is clear that they should never have been granted. Patent quality is therefore of the utmost importance. The European patent system should only reward true inventions and should discourage patent applications for ordinary problem because useful innovation. An important way of reducing the incidence of poor quality follow-on patents is to remedy certain structural defi ciencies and weaknesses in the current examination procedure. Priority must be given to ensuring that the European Patent Offi ce (EPO) has the resources it needs to continue to improve the quality of patent examiners, along with their training biotechnology requires multiple inventive steps and remuneration, and to increase the number of more experienced senior examiners in order to give every patent application the deliberate, expert review it deservestechnologies. This would lead to a more stringent application The field of the patentability requirements and fewer trivial patents. Applicants should be more rigorously required to provide patent applications of the highest quality accompanied by all relevant information at the start of the examination process. Similarly, they should be under obligation to disclose all information known to them that biotechnology is material to the patentability of their invention. Furthermore, better third-party participation would also help to avoid inappropriate follow-particularly dependent on patents from being granted. When such patents are granted, an immediate review should be possible to avoid the assertion cumulative work of ultimately invalid patents to hinder generic competition. This would require an acceleration of the current opposition proceedings that today can take many years. The structure established under the European Patent Convention only provides for a common and single European patent application and granting system by the EPO. A European patent is not a unitary patent, but essentially a bundle of national patents. As a resultresearchers, questions of patent infringement and validity are governed by various national laws and are handled by the national courts operating under different procedural rules. This purely national litigation system results in a complex arena of multiple patent litigation involving high costs, forum shopping and diverging, even contradictory, court decisions. The lack of a central judiciary composed of experienced patent judges therefore is regarded as one of the major defects in the current patent system. An effective solution would be the creation of a central European patent court that would deal with questions of invalidity and infringement at a pan-European level. Until this has been achieved, specialised national patent courts should be created with technically skilled judges with powers vulnerable to reach a decision within an acceptable timeframe. Furthermore, the standard for obtaining an interim injunction should be returned to its roots as an equitable remedy since injunctions today are often used simply as a litigious tactic. This change would require a litigant to establish the existence of irreparable harm that cannot be compensated by monetary damages before a court would take the far-reaching step of enjoining a product. Finally, measures should be taken to ensure that originator companies do not use other means to unjustly prolong their monopoly by, for example, introducing a system of patent linkage, obtaining improperly granted SPCs, deploying inaccurate marketing campaigns for promoting ‘ new ’ products with no substantial added therapeutic value as innovative products, etc“anticommons” problem mentioned earlier.}, disciplinethicket_def={Policy}References Shapiro, research_type={CommentaryOverlapping Patents, Discussion}Broad Patents, industry={PharmaceuticalUnspecified Blocking Mechanism}, thicket_stancethicket_def_extract={Weak Pro}#B1, thicket_stance_extract={Certain structural defi ciencies and weaknesses in This pattern — the current examination procedureincreasing number of patents, howeverincreasing patent breadth, result in and the grant issuance of patents of variable quality, giving on more basic discoveries — has created what some call a patent owner / originator company facing expiry thicket in biotechnology: “an overlapping set of a basic product patent the opportunity rights requiring that those seeking to create what is known as a ‘ patent thicket ’ (see below). The most obvious structural issues are discussed below.commercialize new technology obtain licenses from multiple patentees}, thicket_deftags={}#IPR Reform, Research Exemption, thicket_def_extract={}Compulsory Licensing, tags={EvergreeningIndustry Commentary}, filename={Mallo Taylor Cayford (20082003) - American Patent Related Barriers To Market Entry For Generic Medicines In The European UnionPolicy Biotechnology And African Agriculture.pdf}
}
@article{maskus2006reformingvan2006clearing, title={Reforming US patent policyA Clearing House for Diagnostic Testing: getting the incentives rightSolution to Ensure Access to and Use of Patented Genetic Inventions?}, author={MaskusVan Zimmeren, KE. and Verbeure, B. and Matthijs, G.Eand Van Overwalle, G.}, journal={Innovations: Technology, Governance, GlobalizationBulletin of the World Health Organization}, volume={184}, number={45}, pages={127352--153359},
year={2006},
publisher={MIT PressSciELO Public Health}, abstract={In genetic diagnostics, the emergence of a so-called “patent thicket” is imminent. Such an overlapping set of patent rights may have restrictive effects on further research and development of diagnostic tests, and the provision of clinical diagnostic services. Currently, two models that may facilitate access to and use of patented genetic inventions are attracting much debate in various national and international fora: patent pools and clearing houses. In this article, we explore the concept of clearing houses. Several types 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 and the technology exchange clearing house. Second, three types of clearing houses are analysed that not only offer access to information but also provide an instrument to facilitate 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 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 be willing to participate.}, discipline={PolicyReport}, research_type={CommentaryDiscussion}, industry={Genetics}, thicket_stance={Weak Pro}, thicket_stance_extract={Moreover, there are factors that may lead to the emergence of a patent blocking problem in genetics in the future: increased awareness among researchers; and growing rate of patent enforcement caused by the strategic enforcement of their rights by patent holders and the proliferating complexity of biomedical research requiring a broader range and greater number of inputs of which a growing number is patented.}, thicket_def={#A-T, References Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={Scientists, patent attorneys and academics have expressed concerns about the 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 increase in property rights will ultimately lead to a “tragedy of 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 they need access to in order to legally perform their activities — that it will prove difficult to bargain licences to the patented inventions successfully.}, tags={#Private Mechanisms, Pools, Clearinghouses, Royalties}, filename={VanZimmeren (2006) - A Clearing House For Diagnostic Testing.pdf} } @article{vanoverwalle2010turning, title = {Turning Patent Swords into Shares}, author = {Van Overwalle, Geertrui}, journal = {Science}, volume = {330}, number = {6011}, series = {New Series}, pages = {pp. 1630-1631}, abstract = {}, year = {2010}, publisher = {American Association for the Advancement of Science}, copyright = {Copyright © 2010 American Association for the Advancement of Science}, abstract={Compulsory licenses and patent pools will assist modern patent law in fueling genetic test development.}, discipline={General Science}, research_type={Discussion}, industry={GeneralBiotech, Genetics},
thicket_stance={Weak Pro},
thicket_stance_extract={In addition to the costs Empirical data do not yet confirm existence of individual patents, researchers have to contend with “patent thickets.” That is, complex technologies, such as biomedical research tools,embody a number of technological inputspatent thicket in genetics at large (14, many of which are patented15). A different companyHowever, thicket problems in turn, genetic diag- nostics could own each patent. Negotiating these thickets raises grow with shifts (i) from mono- genetic to multifactorial testing (multiplex diagnostics) and (ii) toward diagnostics based on genome-wide association studies driven by the cost high-throughput of securing rightssingle nucleotide polymorphism platforms and next-generation sequencing possibilities (6, 16). Weaker patent standards encourage patent proliferation and Although not an enlargement illustrative example of this phenomenon, the thickets for research in areas such as biotechnology, agricultural chemicals, Myriad decision has invigorated concerns about potential negative effects of a dense and pharmaceuticals...That suggests dispersed patent thickets and transactions costs may slow down the diffusion of scientific researchlandscape.}, thicket_def={def42#A, #B1, Quotes Shapiro, References Shapiro, References Heller/Eisenberg, Complementary Inputs, Diversely-Held, Transaction Costs}, thicket_def_extract={In addition A second phenomenon relates to the costs dense and fragmented genetic patent landscape. Problems arise when “patent thickets” (a web of individual overlapping patentsthrough which a company must “hack” in order to commercialize a technology) emerge ( 12). Accumulation, researchers or “stacking,” of royalties that have to contend be paid when confronted with “patent thickets.” That is, complex technologies, such as biomedical research tools,embody a number patent thicket may lead to a “tragedy of technological inputs, many of which are patented.the anti-commons”}, tags={TRIPS#Private Mechanisms, Pools, patent proliferation#IPR Reforms, Compulsory Licensing}, filename={Maskus VanOverwalle (20062010) - Reforming Us Turning Patent Policy Getting The Incentives RightSwords Into Shares.pdf}
}
@article{masur2010costlyverbeure2006patent, title={Costly Screens Patent Pools and Patent ExaminationDiagnostic Testing}, author={MasurVerbeure, B. and van Zimmeren, E. and Matthijs, JG.Sand Van Overwalle, G.}, journal={Journal of Legal AnalysisTRENDS in Biotechnology}, volume={224}, number={23}, pages={687115--734120}, year={2010}, publisher={Oxford University Press2006}, abstract={The United States Patent There is increasing concern that overlapping patents in the field of genetics will create a costly and Trademark Office has acquired legally complex situation known as a well-deserved reputation for inefficacy and inefficiency. Proposals for reforming the patent office have thus focused on improving thicket, which, along with the quality associated issues of patent review while decreasing its costaccumulating royalty payments, can act as a disincentive for innovation. Yet One potential means of preventing this view overlooks is for the valuable function performed by the high costs associated with obtaining patent holders to enter into a so-called patent: these costs serve pool, such as an effective screen against low-value patentsthose established in the electronics and telecommunications industries. Moreover, due to asymmetries Precedents for these also exist in patent valuesthe field of genetics, notably with the costly screen is likely patents pertaining to select against socially harmful patents in disproportionate numbersthe SARS genome. Although In this review, we initially address the patent office is the most prominent forum pool concept in general and its application in which genetics. Following this type of costly screening operates, it is not we will explore patent pools in the only one. In a variety of other contextsdiagnostic field in more detail, the private costs and examine some existing and novel examples of navigating an administrative process may complement the process itself patent pools in screening out unwanted participantsgenetics.}, discipline={Law, PolicyGeneral Science}, research_type={Discussion, Commentary}, industry={GeneralBiotech}, thicket_stance={Assumed Weak Pro}, thicket_stance_extract={Third, there are There is increasing concern that overlapping patents in the field of low private value genetics will create a costly and low (or negative) social value; this class of patents includes both discardedlegally complex situation known as a patent thicket, which, unenforced patents that increase along with the search costs and risk imposed on commercial firms—the ‘‘patent thicketassociated issues of accumulating royalty payments,’’ in popular parlance (Shapiro 2001)—and worthless, largely unenforceable patents usable only can act as a disincentive for extracting nuisance settlements (see Section 2.2.)innovation.}, thicket_def={Refs #A-T, #B1-T, Quotes Shapiro, References Shapiro, References Heller/Eisenberg, Diversely-Held, Unspecified Blocking Mechanism}, thicket_def_extract={Third, there are patents Anticommons effect. An effect arising from the situation where multiple owners each have the right to exclude others from the use of low private value a resource and low (or negative) social value; no one has an effective privilege of use: this class results in under use of patents includes both discardedthe resource [7, unenforced patents 8].... Patent thicket: The intellectual property portfolios of several companies that increase form a dense web of overlapping intellectual property rights... Recent studies have reported on the licensing practices of the search costs owners of patents for genetic inventions [3–6], and risk imposed on commercial firms—the ‘‘patent thicketconcerns have been raised that patent thickets,’’ resulting in popular parlance royalty stacking (Shapiro 2001see Glossary), block access to 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 (see Glossary) of patents [7,8] has not been validated by comprehensive empirical data, it is pertinent to reflect on ways to remedy this}, tags={Screening Patents#Private Mechanisms, administrative costs of patentsPools}, filename={Masur Verbeure (20102006) - Costly Screens Patent Pools And Patent ExaminationDiagnostic Testing.pdf}
}
@article{merges2006introductorywang2010rise, title={Introductory Note to Brief Rise of Amicus Curiae in eBay v. MercExchangethe Patent Intermediaries}, author={MergesWang, RA.PW.},
journal={Berkeley Tech. LJ},
volume={2125}, pages={997159}, year={20062010}, abstract={Patents are evolving from purely exclusionary instruments into intellectual property assets that play a part in business strategy and have value as transactional goods. Businesses operating in the intellectual property marketplace have experienced an unprecedented explosion 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 the continued proliferation of patent transactions. These entities operate and thrive in the intermediary market between buyers and sellers of intellectual property as well as auxiliary markets related to the protection of intellectual property.},
discipline={Law},
research_type={Commentary, Discussion}, industry={General, TechnologyICT}, thicket_stance={Assumed Pro}, thicket_stance_extract={As noted above, the existence In this age of the patent thicket and the problem of low quality patents make thickets, an organization must tread carefully lest it especially easy for trolls to acquire infringe countless 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 just by doing business (through a patent "reissuance" or "continuation") in light of the targetcites Heller Eisenberg'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.Anticommons)}, thicket_def={refs #A-ST, Quotes Shapiro, References Shapiro, Diversely-Held, Transaction Costs, Unspecified Blocking Mechanism}, 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 Carl Shapiro defines a "patent thicket": "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." Carl Shapiro”... In this age of patent thickets, Navigating the Patent Thicket: Cross Licenses, Patent Pools60 an organization must tread carefully lest it infringe countless patents just by doing business, 61 and Standard-Setting, an aggregate license to a large cluster of patents in INNOVATION POLICY AND THE ECONOMY 119, 120-21 (Adam Jaffee et althe appropriate field of technology can provide peace of mind... eds.This is not the case for new entrants to the field, 2001); see also To Promote Innovation 2:27who 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-31related expenditures. However, 3:2, 34-35, 52-53without such expenditures they risk even more expensive litigation. }, tags={Patent Trolls, injunction}, filename={Merges Wang (20062010) - Introductory Note To Brief Rise Of Amicus Curiae In Ebay V MercExchangeThe Patent Intermediaries.pdf}
}
@article{mertes2010managingwagner2003information, title={Managing Information Wants to Be Free: Intellectual Property and the patent thicket and maximizing patent lifetime in vaccine technologyMythologies of Control}, author={MertesWagner, M.M.M. and St{\"o}tter, GR.Polk}, journal={Human VaccinesColumbia Law Review}, volume={6103}, number={104}, pages={860pp. 995--8631034}, year={20102003}, publisher={Landes BioscienceColumbia Law Review Association, Inc.}, abstract={PAtents are exclusive rights for This Essay challenges a limited period central tenet of the recent criticism of time intellectual property rights: the suggestion that are granetd the control conferred by such rights is detrimental to provide an incentive for innovation and in exchange for the continued flourishing of a public disclosure domain of an inventionideas and information. Patenting in the medical fieldIn this Essay, especially in Professor Wagner argues that such theories understate the field significance of human vaccine technologies, is full the intangible nature of pitfallsinformation, because and thus overlook the products contribution that finally access even perfectly controlled intellectual creations make to the market are often covered by a multitude public domain. In addition, this Essay shows that perfect control of exclusive IP rights. This commentary gives propertized information--an overview on obstacles animating assumption in vaccine patenting and how to overcome them, much of the contemporary criticism--is both counterfactual and intends likely to provide a patenting guideline for researchersremain so.}, discipline={Law, Policy}, research_type={Discussion, Commentary}, industry={Vaccine, Biology}, thicket_stance={Weak Pro}, thicket_stance_extract={Managing the patent thicket in These findings suggest that increasing the fields appropriability of vaccine technology information goods is challenging as one product may be covered by a plurality of exclusive IP rights that have likely to be considered when developing a product and building up a patent portfolio. Consequentlyincrease, rather than diminish, licensing is a key point in the vaccine industryquantity of "open" information.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 examinedFurther, whether the requirements to request benefits of control in fostering coordination and enabling flexibility in arrangements are essential elements of promoting progress in 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={Washchanging world. UJL \& Pol'y}, volume={8}, pages={309}, year={2002}, abstract={},
discipline={Law},
research_type={Theory, Discussion, Commentary}, industry={GeneralICT}, 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 crossControl-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 talk is 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 drugsecond enclosure movement, 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.}, 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 lurking "tragedy 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 States}anticommons, author={Nielsen, C.M. and Samardzija, 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 dangers 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 thickets" -not practicing his invention or is simply refusing to license mention 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 phenomenon 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 litigation efforts (2006or perhaps social movements?) - Compulsory Patent Licensing.pdf} } @article{rai2003engaging, title = {Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform}, author = {Rai, Arti K.}, journal = {Columbia Law Review}, volume = {103}, number = {5}, 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 sporting their own slogans (and Trademark Office (PTOlogos), 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 such as "Free 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 accordinglyMouse, 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, 1979-1995, 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 "Create Like It'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 Ziedoniss 1790, this increase in defensive patenting "is causally related to the pro-patent shift in the U.S. legal environment in the 1980s.or " IdWhen Copyright Attacks. 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={Unspecified Blocking Mechanism}, 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) " refer 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 fact 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 many areas 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 great numbers 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 related 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 exist at 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 thicketparticular time, scientists and corporations many might be forced to renegotiate constantly for the right have applicability to exercise any individual gene patent, or to use commercial products obtained from that geneproduct.}, 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 placeSee, 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}Carl Shapiro, 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}#Private Mechanisms, 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.}, year = {2003}, publisher = {Wiley}, copyright = {Copyright © 2003 Wiley}, abstract={Settlement outcomes in patent litigation are modeled as resulting from strategies pursued by firms with their patented technologies. Hypotheses are derived for two types of influences: the use of patents as isolating mechanisms to protect valuable strategic stakes, and their 'defensive' role in obtaining access to external technologies through mutual hold-up. Parameter estimates from a sample selection probit model provide support for the strategic stakes hypotheses, while the evidence for mutual hold-up is inconclusive. Interindustry comparisons show that nonsettlement of patent suits in both research medicines and computers is increased by strategic stakes and, in addition, mutual hold-up appears to play an important role in computer patent suits.}, discipline={Econ, Management}, research_type={Theory, Empirical, Econometric Model}, 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 (Merges, 1998). On the other hand, in systems products industries, thickets of patents may be necessary to foil attempts to invent around the patent, and obtain a robust patent position. Moreover, defen sive patenting?the building of large patent port folios may become necessary if rivals, aided by a strong enforcement regime, are able to effectively threaten to hold up a firm's commercial operations (Hall and Ziedonis, 2001).}, thicket_def={Strategic Value, Multiple Overlapping Blocking Patents}, thicket_def_extract={When strong, watertight patents are available, as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). On the other hand, in systems products industries, thickets of patents may be necessary to foil attempts to invent around the patent, and obtain a robust patent position. Moreover, defen sive patenting?the building of large patent port folios may become necessary if rivals, aided by a strong enforcement regime, are able to effectively threaten to hold up a firm's commercial operations (Hall and Ziedonis, 2001).}, tags={negotiatingIntermediaries}, filename={Somaya Wagner (2003) - Strategic Determinants Of Decisions Not To Settle Patent Litigation.pdf} } @article{somaya2011innovation, title={Innovation in Multi-Invention Contexts: Mapping Solutions to Technological and Intellectual Property Complexity}, author={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 thickets) of patents.58 Less attention has been paid by those authors to the equally important role of patents for supporting innovation in multi-invention settings. Innovators and entrepreneurs are often among the most enthusiastic supporters 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 Information Wants 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 of IP implicated, and the resulting complex licensing required, has led some academics to despair that some sections of the economy have—or are about to—experience a “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={multi-invention, negotiation, licensing, strategy}, filename={Somaya Teece Wakeman (2011) - Innovation In Multi Invention Contexts.pdfFree}
}
