PTLR Annotated BibTeX Master
This page is part of the Patent Thicket Litature Review
Notes
This page contains the Annotated BibTeX Master file. It is a series of BibTeX entries, sorted approximately alphabetically by author, with notes after each entry. The notes were written during the second step of the review process and should not be trusted. Notes should only be erased when entries leave this file. At present entries should only leave this file when they have been edited and updated with the appropriate tags and entered into the PTLR Up Group Processed BibTeX. If/when this file is copied to a text file for remote work, please keep this header.
The Master File
@article{aggarwal2009modes,
jstor_articletype = {research-article},
title = {Modes of Cooperative R&D Commercialization by Start-Ups},
author = {Aggarwal, Vikas A. and Hsu, David H.},
journal = {Strategic Management Journal},
jstor_issuetitle = {},
volume = {30},
number = {8},
jstor_formatteddate = {Aug., 2009},
pages = {pp. 835-864},
url = {http://www.jstor.org/stable/20536081},
ISSN = {01432095},
abstract = {This study empirically examines the determinants of heterogeneous firm-level cooperative R&D commercialization strategies. While the volume of interfirm collaboration has increased dramatically in recent decades, the determinants of firm-level choices among alternate modes of such cooperative activity remain relatively understudied. We develop a conceptual model of factors determining collaborative mode choice at the organizational portfolio level. These factors include the firm-level appropriation environment, in which deal-level choices have portfolio-level spillover implications, as well as governance capabilities developed by the firm over time. Using a random sample of innovating biotechnology start-ups, we assemble a firm-year panel dataset that aggregates transaction-level collaboration data to the firm-year level, allowing us to characterize firms' portfolios of collaborative deals. We find broad empirical support for our model, suggesting that a firm's appropriation environment and governance capabilities strongly influence portfolio-level collaboration mode choices. In addition, we explore the implications of governance capability development, finding that experience with particular modes, as well as deviations from existing capabilities, impact firm valuation.},
language = {English},
year = {2009},
publisher = {Wiley},
copyright = {Copyright © 2009 Wiley},
filename={Aggarwal Hsu (2009) - Modes Of Cooperative R And D Commercialization By Start Ups.pdf}
}
Econ: Empirical Biotech
Biotech: all firms in Standard Industrial Classification (SIC) codes 2833–2836 located in the United States that have conducted an initial public offering (IPO)17 in the past 25 years. From this list of 468 firms, we randomly select 117 for our sample.
A firm’s patent portfolio can enable the firm to mitigate appropriation concerns that arise across multiple deals. This occurs when patents are not specific to an individual deal, but rather apply across multiple technology commercialization projects. Such an intellectual property portfolio can thus act as a ‘patent thicket’ (Shapiro, 2000), making it more difficult for collaborative partners to expropriate the innovating firm’s technology. 11 The degree of protection afforded by such a portfolio will, of course, necessarily be dependent on the degree to which patents are relevant across multiple commercialization projects.
While the prior literature has discussed patent thickets in the context of fragmented markets for intellectual property, we conceptualize an analogous situation with the innovator holding a stock of interrelated patents that deters potential expropriation of a range of related products, a situation especially relevant for start-up innovators, as most such firms confine their product development to a single or small number of related products for resource reasons.
@article{allison2003business,
title={The Business Method Patent Myth},
author={Allison, J.R. and Tiller, E.H.},
journal={Berkeley Tech. LJ},
volume={18},
pages={987},
year={2003},
publisher={HeinOnline},
filename={Allison Tiller (2003) - The Business Method Patent Myth.pdf}
}
Law: Empirical: Business Method Patents
In other words, many closely related patents may cover a single product, making it much more difficult for competitors to invent noninfringing substitutes. Patent thickets increase the probability of “hold-up” licensing, that is, exercising the ability to charge a premium for patent licenses in the case of technologies in which competitors have already invested heavily. Id. A patent thicket is just one instance of portfolio value, because a group of patents on related technologies can have a value greater than the sum of its parts even if the patents do not create overlapping rights in the same product.
Our initial search for all patents issued from the beginning of 1990 to the end of 1999 that included the terms “Internet or World Wide Web” yielded over 9,000, most of which used these terms in an incidental fashion (such as a cite to a piece of prior art on the Internet).149 Although a survey of these patents found a few initially promising candidates in older computer industry classifications such as 345, 365, 370, and 375, we found by far the heaviest concentration in the newer 700-series “data processing” or “electrical computer” classifications.150 In particular, most contenders for inclusion appeared in Class 705, 707, and 709.151
@article{aoki2008promoting,
title={Promoting access to intellectual property: patent pools, copyright collectives, and clearinghouses},
author={Aoki, R. and Schiff, A.},
journal={R\&d Management},
volume={38},
number={2},
pages={189--204},
year={2008},
publisher={Wiley Online Library},
filename={Aoki Schiff (2008) - Promoting Access To Intellectual Property.pdf}
}
Econ: Theory: Pools, Collectives, Clearinghouses. ICT and Biotech.
In the context of patents, a proliferation of IP rights may result in a ‘patent thicket’ (Shapiro, 2001) that can increase costs for downstream activities such as cumulative innovation and the development of new products that combine multiple existing innovations.
For example, development of a new genetic diagnostic test typically requires licenses to a number of patents on gene sequences and related technologies (Scherer, 2002). The greater the number of licenses required, the greater the cost of developing the new test. This paper is concerned with ways in which these costs can be reduced so that markets for technology can function more efficiently.
@inproceedings{arundel2003strategic,
title={Strategic patenting},
author={Arundel, A. and Patel, P.},
booktitle={Background report for the Trend Chart Policy Benchmarking Workshop" New Trends in IPR Policy},
year={2003},
filename={Arundel Patel (2003) - Strategic Patenting.pdf}
}
Policy
One of the worst-case outcomes of the patenting strategies of private firms is the creation of an ‘anti-commons’ in which the necessary knowledge to conduct further research is covered by a large number of patents held by a large number of firms. This has been called a patent thicket, or a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology” (Shapiro, in press).
@article{balasubramanian2011what,
jstor_articletype = {research-article},
Title = {What Happens When Firms Patent? New Evidence From U.S. Economic Census Data},
author = {Balasubramanian, Natarajan and Sivadasan, Jagadeesh},
journal = {The Review of Economics and Statistics},
jstor_issuetitle = {},
volume = {93},
number = {1},
jstor_formatteddate = {February 2011},
pages = {pp. 126-146},
url = {http://www.jstor.org/stable/23015924},
ISSN = {00346535},
abstract = {We build a new concordance between the NBER Patent Data and U.S. Census microdata and use it to examine what happens when firms patent. We find strong evidence that increases in patent stock are associated with increases in firm size, scope, and skill and capital intensity. We find somewhat weaker evidence that changes in patenting are positively correlated with changes in total factor productivity. We also analyze firsttime patentees and find similar effects following initial patent application. Together, these results suggest that patenting is indeed associated with real changes within firms, in particular with growth through increases in scope.},
language = {English},
year = {2011},
publisher = {The MIT Press},
copyright = {Copyright © 2011 The MIT Press},
filename={Balasubramanian Sivadasan (2011) - What Happens When Firms Patent.pdf}
}
Econ: Empirical: Cross industry, large scale, TFP
We find strong evidence that increases in patent stock are associated with increases in firm size, scope, and skill and capital intensity. We find somewhat weaker evidence that changes in patenting are positively correlated with changes in total factor productivity. We also analyze firsttime patentees and find similar effects following initial patent application. Together, these results suggest that patenting is indeed associated with real changes within firms, in particular with growth through increases in scope.
@article{baluch2005re,
title={In re Kumar: the first nanotech patent case in the federal circuit},
author={Baluch, A.S. and Radomsky, L. and Maebius, S.B.},
journal={Nanotech. L. \& Bus.},
volume={2},
pages={344},
year={2005},
publisher={HeinOnline},
filename={Baluch Radomsky Maebius (2005) - In Re Kumar The First Nanotech Patent Case In The Federal Circuit.pdf}
}
Law: Nanotech
For example, a claim in a later patent may cover a new and nonobvious improvement on a basic invention claimed in an earlier patent. In this case, both patents would properly cover the improved product. A large number of patents containing overlapping claims which cover the same product are often referred to as a "patent thicket."
@article{bargill2003thevalue,
jstor_articletype = {research-article},
title = {The Value of Giving Away Secrets},
author = {Bar-Gill, Oren and Gideon Parchomovsky},
journal = {Virginia Law Review},
jstor_issuetitle = {},
volume = {89},
number = {8},
jstor_formatteddate = {Dec., 2003},
pages = {pp. 1857-1895},
url = {http://www.jstor.org/stable/3202368},
ISSN = {00426601},
abstract = {},
language = {English},
year = {2003},
publisher = {Virginia Law Review},
copyright = {Copyright © 2003 Virginia Law Review},
filename={BarGill Parchomovsky (2003) - The Value Of Giving Away Secrets.pdf}
}
Law: Cummulative Innovation -> give away rights can be best
In growingn umbersf, irmse lect to foregop atentp rotection, a nd choose instead to publishp otentiallyp atentabler esearchf inding
Indeed, from an ex post perspective, the original inventor would prefer a broader patent. The ex post perspective is deceptive, how- ever, since it presumes the existence of the cumulative invention- an existence which cannot be taken for granted. Generally, the cumulative inventor would need to sink substantial development costs before she can approach the original inventor and bargain for a license. Therefore, if a broad patent protects the original inven- tion and, consequently, the cumulative inventor expects to be held- up in the bargaining stage, she might decide to forego the cumula- tive invention altogether. Critically, the breadth of the original pat- ent determines the division of surplus between the original and cumulative inventors.5 If the share that the cumulative inventor ex- pects to receive does not cover her ex ante development costs, then the cumulative invention will not be developed in the first place. This result is clearly detrimental not only to the cumulative inven- tor, but also to the original inventor
@article{baron2010patent,
title={Patent quality and value in discrete and cumulative innovation},
author={Baron, J. and Delcamp, H.},
journal={CERNA Working Paper},
number={2010-07},
year={2010},
filename={Baron Delcamp (2010) - Patent Quality And Value In Discrete And Cumulative Innovation.pdf}
}
Econ: Empirical: Patent quality and value in discrete vs. cummulative innovation
Patent thickets are webs of overlapping and mutually blocking patents held by different owners. Mutually blocking patent rights result from cumulative innovation, where no technological component can be marketed individually without the technological complements potentially protected by patent rights of different companies.
@article{baron2010strategic,
title={Strategic inputs into patent pools},
author={Baron, J. and Delcamp, H.},
journal={Cerna working paper},
year={2010},
filename={Baron Delcamp (2010) - Strategic Inputs Into Patent Pools.pdf}
}
Econ: Emprical Pools
The patent thicket describes a situation in which holders of different patents that are all necessary for complying with a standard mutually block each other in the implementation of the standard.
We have produced a unique database of 7 patent pools with 8046 patent observations: DVD6C, MPEG2, MPEG4 Systems, MPEG4 Visuals, AVC H/264, IEEE 1394 and DVB-T.
@inproceedings{baron2011patent,
title={Patent Pools and Patent Inflation},
author={Baron, J. and Pohlmann, T.},
booktitle={Conference Proceedings: 4th ZEW Conference on the Economics of Innovation and Patenting},
year={2011},
filename={Baron Pohlmann (2011) - Patent Pools And Patent Inflation.pdf}
}
Econ: Empirical Pools
Building upon theoretical propositions drawn from Dequiedt and Versaevel (2007) and a database of 64.619 declarations of essential patents to major international Standard Developing Organizations (SDO), we investigate how patent pools influence the number of patents on a standard over time
Shapiro, 2001 def.
@article{barpujari2010patent,
title={The patent regime and nanotechnology: issues and challenges},
author={Barpujari, I.},
journal={Journal of Intellectual Property Rights},
volume={15},
number={3},
pages={206--213},
year={2010},
filename={Barpujari (2010) - The Patent Regime And Nanotechnology Issues And Challenges.pdf}
}
Law: Nanotech
Building upon theoretical propositions drawn from Dequiedt and Versaevel (2007) and a database of 64.619 declarations of essential patents to major international Standard Developing Organizations (SDO), we investigate how patent pools influence the number of patents on a standard over time
@article{bawa2007nanotechnology,
title={Nanotechnology patent proliferation and the crisis at the US Patent Office},
author={Bawa, R.},
journal={Alb. LJ Sci. \& Tech.},
volume={17},
pages={699},
year={2007},
publisher={HeinOnline},
filename={Bawa (2007) - Nanotechnology Patent Proliferation And The Crisis At The Us Patent Office.pdf}
}
Law: Nanotech Discussion
Not Copyable
@article{bessen2003patent,
title={Patent thickets: Strategic patenting of complex technologies},
author={Bessen, J.},
journal={Available at SSRN 327760},
year={2003},
filename={Bessen (2003) - Patent Thickets Strategic Patenting Of Complex Technologies.pdf}
}
Econ (weak): Theory of thickets
These occur when each product may involve many patents, in contrast with the one-to-one correspondence between products and patents that is assumed in the patent race literature. Recent commentators suggest that lower patenting standards encourage patent thickets, creating difficulties for innovators (see Gallini, 2002, for a review). When innovators must negotiate with large numbers of patentholders, they may face excessive transaction costs (Heller and Eisenberg, 1998), “holdup,” and problems of vertical monopoly (Shapiro, 2001).
@article{bessen2008value,
title={The value of US patents by owner and patent characteristics},
author={Bessen, J.},
journal={Research Policy},
volume={37},
number={5},
pages={932--945},
year={2008},
publisher={Elsevier},
filename={Bessen (2008) - The Value Of Us Patents By Owner And Patent Characteristics.pdf}
}
Econ: Empirical: Thicketing may add to patent value
A larger number of patents may simply reflect that an owner is protecting more inventions with patents, or that owner may be “fencing” off the technology by patenting possible substitute technologies or building a patent “thicket.”
@article{bergman2007global,
title={The global stem cell patent landscape: implications for efficient technology transfer and commercial development},
author={Bergman, K. and Graff, G.D.},
journal={Nature biotechnology},
volume={25},
number={4},
pages={419--424},
year={2007},
publisher={Nature Publishing Group},
filename={Bergman Graff (2007) - The Global Stem Cell Patent Landscape.pdf}
}
Biology: Stem Cells (could give rise to thickets)
Given the particular characteristics of stem cells as a broadly enabling technology, many expect the field to be particularly susceptible to the emergence of a patent thicket8–13, also known in property rights theory as an ‘anticommons’ 14. In a patent thicket, the existence of many overlapping patent claims can cause uncertainty about freedom to operate, impose multiple layers of transaction costs and stack royalty payments beyond levels that can be supported by the value of single innovations. By blocking pathways to market and dampening investor interest in commercialization, a patent thicket has the potential to slow and skew the overall development of new technical applications.
@article{blind2009influence,
title={The influence of strategic patenting on companies’ patent portfolios},
author={Blind, K. and Cremers, K. and Mueller, E.},
journal={Research Policy},
volume={38},
number={2},
pages={428--436},
year={2009},
publisher={Elsevier},
filename={Blind Cremers Mueller (2009) - The Influence Of Strategic Patenting On Companies Patent Portfolios.pdf}
}
Econ: Effects of strategic patenting
Furthermore, an observed offensive blocking strategy results in frequent oppositions and rather limited citations of a company’s patent portfolio. Such a strategy could also lead to “patent thickets”,
@article{braun2007barriers,
title={Barriers to user innovation: moving towards a paradigm of'licence to innovate'?},
author={Braun, V. and Herstatt, C.},
journal={International Journal of Technology, Policy and Management},
volume={7},
number={3},
pages={292--303},
year={2007},
publisher={Inderscience},
filename={Braun Herstatt (2007) - Barriers To User Innovation.pdf}
}
Econ: Discussion based on seed-breeding
An investigation of the barriers that users face when attempting to innovate is nevertheless lacking completely. In this paper, we attempt to fill this gap by discussing various factors that can prevent users from innovating. The evolution of the seed-breeding industry will be used for illustration purposes. We will argue that the barriers to user innovation seem to be progressing, potentially indicating that a paradigm change may be imminent.
This refers to an overlapping set of IPRs, which requires those seeking to commercialise new technologies to obtain licences (Shapiro, 2001). It exists in many industries, such as in semiconductors and biotechnology (Hall and Ziedonis, 2001; Heller and Eisenberg, 1998).
@article{brenner2009optimal,
title={Optimal formation rules for patent pools},
author={Brenner, S.},
journal={Economic Theory},
volume={40},
number={3},
pages={373--388},
year={2009},
publisher={Springer},
filename={Brenner (2009) - Optimal Formation Rules For Patent Pools.pdf}
}
Econ: Theory: Model of pool formation
No real mention of thickets but builds off complementary patents
@article{burk2003policy,
title={Policy levers in patent law},
author={Burk, D.L. and Lemley, M.A.},
journal={Va. L. Rev.},
volume={89},
pages={1575},
year={2003},
publisher={HeinOnline},
filename={Burk Lemley (2003) - Policy Levers In Patent Law.pdf}
}
Law: Theory - Direct discussion of thicket problem
Closely related to the problem of complementarity is the prob- lem of horizontal overlaps between patents.122 Patents are fre- quently broader than the products the inventors actually make. Multiple patents often cover the same ground, sometimes as an in- tentional result of the patent system"' and sometimes because pat- ents regularly issue that are too broad or tread on the prior art.'24 Various parties may be able to lay claim to the same technologies or to aspects of the same technology. Carl Shapiro has termed this overlap of patent claims the "patent thicket." 125
@article{calderini2006standardisation,
title={Standardisation in the ICT sector: The (complex) interface between antitrust and intellectual property},
author={Calderini, M. and Giannaccari, A.},
journal={Econ. Innov. New Techn.},
volume={15},
number={6},
pages={543--567},
year={2006},
publisher={Taylor \& Francis},
filename={Calderini Giannaccari (2006) - Standardisation In The Ict Sector.pdf}
}
Econ/Policy: Discussion: Stardardization in ICT
It is obvious that the characteristics of the aforementioned technological paradigm determine a complex network of intertwined property rights to which a company intending to develop a new product must access. This network is defined a patent thicket (Shapiro, 2001). A patent thicket consists of a number of adjacent and overlapping property rights, which impose on whoever wishes to use certain intermediate goods to ask for licenses from several patent holders. Obviously, this frequently results in high monetary and transaction costs. The entity of such costs is often so great as to discourage innovative activity in the downstream phases of the innovation process. This finding represents a real turning over of one of the funding concepts of the economics of intellectual property rights, according to which a tighter enforcement of intellectual property rights favours innovative activity. Contrarily, in the presence of cumulative and systemic innovative activities, there are reasons to believe that too strict intellectual property rights would lead to perverse effects on innovative activity within the industry.
@article{calderini2004intellectual,
title={Intellectual property rights as strategic assets: the case of European patent opposition in the telecommunications industry},
author={Calderini, M. and Scellato, G.},
journal={CESPRI, Cen tre for Research on Innovation and Internationalisation, Universita'Bocconi, Working Paper},
volume={158},
year={2004},
filename={Calderini Scellato (2004) - Intellectual Property Rights As Strategic Assets.pdf}
}
Econ: Discussion: Close to Mexican Standoff
We suggest that in an industry characterised by strong technological complementarities the distribution of patent rights may induce situations of mutual hold-up among innovators. The risk of retaliation through countersuits represents a credible threat that can eventually favour the instauration of collusive behaviours. Our results confirm this hypothesis, since the occurrence of patent oppositions among large incumbents is significantly lower than industry average.
No explicit definition.
@article{carnabuci2009knowledge,
jstor_articletype = {research-article},
title = {Knowledge Specialization, Knowledge Brokerage and the Uneven Growth of Technology Domains},
author = {Carnabuci, Gianluca and Bruggeman, Jeroen},
journal = {Social Forces},
jstor_issuetitle = {},
volume = {88},
number = {2},
jstor_formatteddate = {December 2009},
pages = {pp. 607-641},
url = {http://www.jstor.org/stable/40645818},
ISSN = {00377732},
abstract = {Why do certain domains of knowledge grow fast while others grow slowly or stagnate? Two distinct theoretical arguments hold that knowledge growth is enhanced by knowledge specialization and knowledge brokerage. Based on the notion of recombinant knowledge growth, we show that specialization and brokerage are opposing modes of knowledge generation, the difference between them lying in the extent to which homogeneous vs. heterogeneous input ideas get creatively recombined. Accordingly, we investigate how both modes of knowledge generation can enhance the growth of technology domains. To address this question, we develop an argument that reconciles both specialization and brokerage into a dynamic explanation. Our contention is that specializing in an increasingly homogeneous set of input ideas is both more efficient and less risky than brokering knowledge. Nevertheless, specializing implies progressively exhausting available recombinant possibilities, while brokerage creates new ones. Hence, technology domains tend to grow faster when they specialize, but the more specialized they become, the more they need knowledge brokerage to grow. We cast out our argument into five hypotheses that predict how growth rates vary across technology domains.},
language = {English},
year = {2009},
publisher = {Oxford University Press},
copyright = {Copyright © 2009 Social Forces, University of North Carolina Press},
filename={Carnabuci Bruggeman (2009) - Knowledge Specialization Knowledge Brokerage.pdf}
}
Econ/Soci: Theory and empirics
Might provide an interesting counter to the measures...
the present study extends our understanding of how public technological knowledge accumulate Our analysis showed that the process of recombinant growth driving the accumulation of public technological knowledge is far from combinatorially unconstrained. Rather, at any point in time, the rate of future accumulation of public technological knowledge is affected in important and predictable ways by the extent to which the body of accumulated prior knowledge in a technology domain is specialize
@article{carrier2002antitrust,
title={Why Antitrust Should Defer to the Intellectual Property Rules of Standard-Setting Organizations: A Commentary on Teece \& (and) Sherry},
author={Carrier, M.A.},
journal={Minn. L. Rev.},
volume={87},
pages={2019},
year={2002},
publisher={HeinOnline},
filename={Carrier (2002) - Why Antitrust Should Defer To The Intellectual Property Rules Of SSOs.pdf}
}
Econ/Law (Commentary on Teece/Sherry).
No definition of thickets.
@article{carrier2012roadmap,
title={A Roadmap to the Smartphone Patent Wars and FRAND Licensing},
author={Carrier, M.},
journal={CPI Antitrust Chronicle},
volume={2},
year={2012},
filename={Carrier (2012) - A Roadmap To The Smartphone Patent Wars And Frand Licensing.pdf}
}
Law: Smartphone wars (short)
No def
@article{choi2005live,
title={Live and let live: A tale of weak patents},
author={Choi, J.P.},
journal={Journal of the European Economic Association},
volume={3},
number={2-3},
pages={724--733},
year={2005},
publisher={Wiley Online Library},
filename={Choi (2005) - Live And Let Live A Tale Of Weak Patents.pdf}
}
Econ: Theory: Substitute patents
The lack of rigorous scrutiny in the examination process - in conjunction with the recent explosion of patents granted - has led to a serious concern that the current patent system may impede, rather than promote, innovation by creating a "patent thicket" (Shapiro 2001; Gallini 2002; Bessen 2003).
@article{clark2008fragmented,
jstor_articletype = {research-article},
title = {Fragmented Property Rights and Incentives for R&D},
author = {Clark, Derek J. and Konrad, Kai A.},
journal = {Management Science},
jstor_issuetitle = {},
volume = {54},
number = {5},
jstor_formatteddate = {May, 2008},
pages = {pp. 969-981},
url = {http://www.jstor.org/stable/20122444},
ISSN = {00251909},
abstract = {Where product innovation requires several complementary patents, fragmented property rights can limit firms' willingness to invest in R&D. We consider the research intensity in multiple simultaneous R&D contests and how it depends on whether firms already hold relevant patents as well as the availability of an option to invent around. A measure of technological uncertainty is also analyzed. The multiple patent product involves an important hold-up problem that can reduce the overall R&D effort. Invent-around options moderate this problem. We also analyze targeted equilibria in which the aim of R&D can be to hold up a rival.},
language = {English},
year = {2008},
publisher = {INFORMS},
copyright = {Copyright © 2008 INFORMS},
filename={Clark Konrad (2008) - Fragmented Property Rights And Incentives For R And D.pdf}
}
Econ: Theory: Model of cummulative innovation where fragmentation is endogeneous?
Complementarity of multiple patents has been identified recently—by academics and industry practitioners— as a potential problem, particularly in biotechnology and other nascent industries based on complex technologies. We have considered the incentives for cumulative R&D effort if firms need several complementary patent rights for producing multicomponent products. Complementarity weakens the incentives to invest in R&D effort. Intuitively, when many complementary patents are needed to produce a particular multicomponent good, a firm will very likely fail to obtain all patents even if it invests heavily in each of the single patent contests. At the same time, holding a single patent secures the firm veto power, and its payoff is therefore the same whether it holds one, two, or even all but one of the patents. This makes it less worthwhile to spend much effort trying to win all the simultaneous contests. This effect is strengthened if there is technological uncertainty regarding whether each single patented innovation is technically feasible and is weakened if patents have a commercial value apart from the complementary use in the multicomponent application. When some firms already hold some patents in their portfolios and others do not, this yields some secure payoff to the leading firms. Although this is good news for owners of firms that already hold large stocks of patents, such stocks also yield a disincentive for these leading firms to invest in ongoing patent contests, unless only one patent remains unwon. With a large number of further patents, the leading firms are discouraged from participating in these contests. The reason for this discouragement effect is very different from Arrow’s well-known replacement effect by which a new, superior patent invalidates an incumbent firm’s existing one. Instead, the strategic game becomes asymmetric because the firm that has a nonempty portfolio still needs to win all further patents to make the multicomponent product as a monopolist, whereas the competing firm needs to win only one of these further patents to secure some of the monopoly profit.
@article{clarkson2004objective,
title={Objective Identification of Patent Thickets: A Network Analytic Approach},
author={Clarkson, G.},
journal={Harvard Business School Doctoral Thesis},
year={2004},
filename={Clarkson (2004) - Objective Identification Of Patent Thickets A Network Analytic Approach.pdf}
}
Law: Theory and cases: CORE THICKET PAPER
Despite all that has been written about patent thickets,2 an objective methodology for verifying the existence of a patent thicket has never been developed. Throughout the last 150 years, however, organizations have stumbled into a number of patent thickets and have occasionally responded by constructing patent pools, which this paper defines as organizational structures where multiple firms collectively aggregate patent rights into a package for licensing, either among themselves or to any potential licensees irrespective of membership in the pool. Such collaboration among technologically competing firms, however, has often encountered difficulty from an antitrust standpoint, even if the formation of the pool is pro-competitive.
@article{clarkson2005patent,
title={Patent informatics for patent thicket detection: a network analytic approach for measuring the density of patent space},
author={Clarkson, G.},
journal={Academy of Management, Honolulu},
year={2005},
filename={Clarkson (2005) - Patent Informatics For Patent Thicket Detection.pdf}
}
Law: Empirical: CORE PAPER
Discusses measures etc. Review in detail.
@article{clarkson2006problem,
title={The problem of patent thickets in convergent technologies},
author={Clarkson, G. and DeKorte, D.},
journal={Annals of the New York Academy of Sciences},
volume={1093},
number={1},
pages={180--200},
year={2006},
publisher={Wiley Online Library},
filename={Clarkson DeKorte (2006) - The Problem Of Patent Thickets In Convergent Technologies.pdf}
}
Law: Discussion with network measures: CORE PAPER
Patent thickets are unintentionally dense webs of overlapping intellectual property rights owned by different companies that can retard progress.
@article{cockburn2006entry,
title={Entry and Patenting in the Software Industry},
author={Cockburn, I.M. and MacGarvie, M.J.},
year={2006},
journal={NBER Working Paper},
institution={National Bureau of Economic Research},
filename={Cockburn MacGarvie (2006) - Entry And Patenting In The Software Industry.pdf}
}
Econ: Empirical: CORE PAPER
Many firms, nonetheless, acquire large portfolios of patents, and even where the primary motivation for doing this goes beyond the potential to exclude competitors, the impact of an accumulated patent “thicket” on entry costs may be substantial (see Shapiro 2001 for a definition of patent thickets).
@article{cockburn2009patents,
title={Patents, Thickets and the Financing of Early-Stage Firms: Evidence from the Software Industry},
author={Cockburn, I.M. and MacGarvie, M.J.},
journal={Journal of Economics \& Management Strategy},
volume={18},
number={3},
pages={729--773},
year={2009},
publisher={Wiley Online Library},
filename={Cockburn MacGarvie (2009) - Patents Thickets And The Financing Of Early Stage Firms.pdf}
}
Econ: Empirical: CORE PAPER
In this paper we attempt to characterize the extent to which entrants into a software market at any given point in time face a patent “thicket”—i.e. a “a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology”3—and evaluate the impact of patent thickets on the interaction between new software ventures and capital markets.
@article{cockburn2011entry,
title={Entry and Patenting in the Software Industry},
author={Cockburn, I.M. and Macgarvie, M.J.},
journal={Management science},
volume={57},
number={5},
pages={915--933},
year={2011},
publisher={Institute for Operations Research and the Management Sciences},
filename={Cockburn Macgarvie (2011) - Entry And Patenting In The Software Industry.pdf}
}
Revised version of above (only keep above if different)
@article{cockburn2010patent,
title={Patent thickets, licensing and innovative performance},
author={Cockburn, I.M. and MacGarvie, M.J. and M{\"u}ller, E.},
journal={Industrial and Corporate Change},
volume={19},
number={3},
pages={899--925},
year={2010},
publisher={Oxford Univ Press},
filename={Cockburn MacGarvie Muller (2010) - Patent Thickets Licensing And Innovative Performance.pdf}
}
Econ: Empirical: CORE PAPER
Defined by Shapiro (2001) as “a dense web...
@misc{cockburn2007patents,
title={Patents and the Survival of Internet-related IPOs},
author={Cockburn, I.M. and Wagner, S.},
year={2007},
publisher={National Bureau of Economic Research Cambridge, Mass., USA},
filename={Cockburn Wagner (2007) - Patents And The Survival Of Internet Related Ipos.pdf}
}
Econ: Empirical: CORE PAPER
DOES NOT MENTION THICKETS!!! But the results do not support thickets in internet-software firms.
@techreport{cohen2000protecting,
title={Protecting their intellectual assets: Appropriability conditions and why US manufacturing firms patent (or not)},
author={Cohen, W.M. and Nelson, R.R. and Walsh, J.P.},
year={2000},
institution={National Bureau of Economic Research},
filename={Cohen Nelson Walsh (2000) - Protecting Their Intellectual Assets.pdf}
}
Econ: Empirical: Why firms patent
For example, the building of patent fences can be carried to the extreme noted by Scherer [1980] and others to the point of creating "patent thickets" that foster broader monopolies than anticipated by patent policy which in turn impede entry and the innovation that may accompany it.
Our data do not show the degree to which patent portfolio races distort the nature of R&D incentives or lead to socially wasteful outcomes, or whether such portfolio races or patent thickets actually block entry. Nor do they indicate whether fee stacking or the breakdown of negotiations in complex technology industries have ever undermined the commercialization of innovation. The data do suggest, however, that the potential for such outcomes may be more pervasive than previously thought.
@incollection{cohen2008real,
title={Real impediments to academic biomedical research},
author={Cohen, W.M. and Walsh, J.P.},
booktitle={Innovation Policy and the Economy, Volume 8},
pages={1--30},
year={2008},
publisher={University of Chicago Press},
filename={Cohen Walsh (2008) - Real Impediments To Academic Biomedical Research.pdf}
}
Econ: Empirical: Academic research anticommons problems
Although their focus is largely on com mercial projects, Heller and Eisenberg (1998) and Shapiro (2000) suggest that the patenting of a broad range of research tools that researchers need to do their work has spawned "patent thickets" that may make the acquisition of licenses and other rights too burdensome to permit the pursuit of what should otherwise be scientifically and socially worth while research, (engendering a tragedy of the "anticommons" [Heller and Eisenberg 1998]).15
We do find restrictions imposed on the flow of information and materials across biomedical researchers. While patents play some role, they are not determinative. What appears to mat ter are both academic and commercial incentives and effective excludability. Ex clusion is rarely associated with the existence of a patent in academic settings, but is more readily achieved through secrecy or not sharing research materials.
@misc{competition2008pharmaceutical,
title={Pharmaceutical Sector Inquiry-Preliminary Report},
author={Competition, DG},
year={2008},
filename={Competition (2008) - Pharmaceutical Sector Inquiry Preliminary Report.pdf}
}
Policy: Pharmaceuticals
One commonly applied strategy is filing numerous patents for the same medicine (forming so called "patent clusters" or "patent thickets"). Documents gathered in the course of the inquiry confirm that an important objective of this strategy is to delay or block the market entry of generic medicines. In this respect the inquiry finds that individual blockbuster medicines are protected by up to 1,300 patents and/or pending patent applications EU-wide and that, as mentioned above, certain patent filings occur very late in the life cycle of a medicine.
@article{cotter2008patent,
title={Patent Holdup, Patent Remedies, and Antitrust Responses},
author={Cotter, T.F.},
journal={J. Corp. L.},
volume={34},
pages={1151},
year={2008},
publisher={HeinOnline},
filename={Cotter (2008) - Patent Holdup Patent Remedies And Antitrust Responses.pdf}
}
Law: Definition of patent holdup (and ambush)
Doesn't mention thickets except in a footnote.
@article{cowin2007policy,
title={Policy options for the improvement of the European patent system},
author={Cowin, R. and Van der Eijck, W. and Lissoni, F. and Lotz, P. and Van Overwalle, G. and Schovsbo, J.},
journal={Scientific Technology Options Assessment (STOA) of the European Parliament},
year={2007},
filename={Cowin (2007) - Policy Options For The Improvement Of The European Patent System.pdf}
}
Policy: How to reform patent system. Focus on thickets
The sectors which are most affected by this phenomenon, at least in the US, are those whose process and product innovations rely upon complex technologies where an individual piece of equipment is the result of a very large number of components, all susceptible to patent protection. Here, the recent boom in patenting observed by many researchers is largely explained not by a firms’ drive to innovate more than before, but by a need to accumulate large enough “patent thickets”. These patent thickets work as a sort of insurance against possible legal actions from other companies. They are in effect therefore, a kind of defensive manoeuvre.
@article{csardi2007modeling,
title={Modeling innovation by a kinetic description of the patent citation system},
author={Cs{\'a}rdi, G. and Strandburg, K.J. and Zal{\'a}nyi, L. and Tobochnik, J. and {\'E}rdi, P.},
journal={Physica A: Statistical Mechanics and its Applications},
volume={374},
number={2},
pages={783--793},
year={2007},
publisher={Elsevier},
filename={Csardi (2007) - Modeling Innovation By A Kinetic Description Of The Patent Citation System.pdf}
}
Physics: Patent Citation Networks
Since 1991, preferential attachment in the patent system has become increasingly strong, indicating that patents are more and more stratified, with fewer and fewer of the patents receiving more and more of the citations. A few very important, perhaps “pioneer”, patents seem to dominate the citations. This trend may be consistent with fears of an increasing patent “thicket”, in which more and more patents are issued on minor technical advances in any given area. These technically dense patents must be cited by patents that build upon or distinguish them directly, thus requiring that more citations be made, but few of them will be of sufficient significance to merit citation by any but the most closely related patents. Further work will be needed to understand this change in citation network kinetics.
@article{denicolo2007do,
jstor_articletype = {research-article},
title = {Do Patents Over-Compensate Innovators?},
author = {Denicolò, Vincenzo},
journal = {Economic Policy},
jstor_issuetitle = {},
volume = {22},
number = {52},
jstor_formatteddate = {Oct., 2007},
pages = {pp. 679+681-729},
url = {http://www.jstor.org/stable/4502213},
ISSN = {02664658},
abstract = {Is the current level of patent protection too high or too low? To address this issue, this paper reformulates the theoretical analysis of the optimal level of patent protection to take into account the empirical findings of the innovation production function literature. This literature finds a strong relationship between R&D spending and inventions and estimates an elasticity of the supply of inventions of 0.5 or more. Thepaper then assesses the current level of patent protection, exploiting estimates of the private and social returns to R&D taken from the empirical literature and other available sources. Although more research is needed for a more precise assessment, the evidence available suggests that patents do not overcompensate innovators.},
language = {English},
year = {2007},
publisher = {Wiley on behalf of the Centre for Economic Policy Research, Center for Economic Studies, and the Maison des Sciences de l'Homme},
copyright = {Copyright © 2007 Centre for Economic Policy Research, Center for Economic Studies and Maison des Sciences de l'Homme},
filename={Denicolo (2007) - Do Patents Over Compensate Innovators.pdf}
}
Econ: Theory: 'Correct' allocation of returns to patent-holders
T. his literaturfien ds a strongr elationshibpe tweenR &D spendinagn di nventionasn de stimateasn elasticitoyf thes upplyo f inventionosf 0.5 orm oreT. hepapetrh ena ssessetsh ec urrenlet veol f patentprotectieoxnp, loiting estimateos f thep rivatea nds ocialr eturntso R&D takenfr om the empirical literaturaen d othera vailables ourcesA. lthoughm orer esearcihs needefdo r a morpe recisea ssessmentth, ee videncaev ailablseu ggesttsh atp atentsd o noto vercompensaitnen ovators.
In certain industries, such as telecommunications and biotechnology, production of new products often requires many complementary innovative components that are owned by different firms.17 The proliferation and fragmentation of intellectual property rights creates a 'patent thicket' that is often viewed as an obstacle to innovation. Two main problems may emerge. First, a proliferation of patents held by different owners increases transaction costs and might even prevent manufacturers from obtaining the right to develop the new products, creating the tragedy of the anticommons (Heller and Eisenberg, 1998). Second, with complementary patents there may be a problem of Cournot complements (Shapiro, 2001) that increases the deadweight loss to profit ratio D/17. How serious those problems are is a matter of controversy,8
@article{devlin2009indeterminism,
jstor_articletype = {research-article},
title = {Indeterminism and the Property-Patent Equation},
author = {Devlin, Alan},
journal = {Yale Law & Policy Review},
jstor_issuetitle = {},
volume = {28},
number = {1},
jstor_formatteddate = {fall 2009},
pages = {pp. 61-106},
url = {http://www.jstor.org/stable/27871287},
ISSN = {07408048},
abstract = {},
language = {English},
year = {2009},
publisher = {Yale Law & Policy Review, Inc.},
copyright = {Copyright © 2009 Yale Law & Policy Review, Inc.},
filename={Devlin (2009) - Indeterminism And The Property Patent Equation.pdf}
}
Law: Theory: Comparison of real and intellectual property rights
Property rights advocates further note that such fears such as irrational hold-out?most often voiced in the con text of patent thickets and experimental use?are not supported by empirical evidence.34 Instead, strong, overlapping property rights give rise to their own solution through patent pools, portfolio cross-licenses, standard-setting organi zations (SSOs), and invent-around.35 See F. Scott Kieff, Property Rights and Property Rules for Commercializing Inven tions, 85 Minn. L. Rev. 697, 719-27 (2001) (arguing that patents do not create a hold-out problem but in fact promote innovation and commercialization). See, e.g., Daniel F. Spulber, Unlocking Technology: Antitrust and Innovation, 4 J. Competition L. & Econ. 915, 963 (2008). Patent pools are entities that accumu late and license blocking patents. They serve a valuable role in bypassing the un desirable economic phenomenon of royalty stacking, which can hinder or even prevent the commercialization of technologies that require the use of intellectual property-protected information. Sometimes a small number of companies that possess large patent portfolios can achieve the same result by cross-licensing one another.
More fundamentally still, the innumerable overlapping patents in certain high tech fields create an impenetrable "thicket" that frustrates quixotic conceptions of Coasian bargaining and acts only as an anticommons that paradoxically fore closes innovation.200 One's exclusion of another from his land is isolated; a sin gle patentee's ability to enjoin production of a semiconductor chip that impli cates thousands of patents creates powerful negative externalities.201 Given such distinctions, many view the worlds of patent law and traditional property as sufficiently distinct to be unworthy of direct analogy.
@article{dhar20071,
title={The Impact of Intellectual Property Rights in the Plant and Seed Industry},
author={Dhar, T. and Foltz, J.},
journal={Agricultural Biotechnolgy and Intellectual Property Protection: Seeds of Change},
pages={161},
year={2007},
publisher={CABI},
filename={Dhar Foltz (2007) - The Impact Of Intellectual Property Rights In The Plant And Seed Industry.pdf}
}
Econ: Theory with some empirics: Plant/Seed Industry
UBC Marketing Prof...
A number of observers of patenting, particularly in the biological sciences, have suggested that patenting rules and overlapping claims have generated a "patent thicket" 8 that has impeded innovation and made the R&D process more costly (Rai, 2001; Rai, 1999). Rai (2001) for example, argues that broad patents especially on upstream platform technologies represent a threat to competition and the cumulative process of innovation in the biopharmaceutical industry
Our work makes a start both theoretically and empirically in recognizing the important strategic role of revelation loss in firm strategies of choice of intellectual property rights or trade secrets.
@article{d2009pools,
title={Pools, thickets and open source nanotechnology},
author={D'Silva, J.},
journal={European intellectual property review},
volume={31},
number={6},
pages={300--306},
year={2009},
filename={DSilva (2009) - Pools Thickets And Open Source Nanotechnology.pdf}
}
Law: Discussion: Nanotech
When multiple organisations each own individual patents that are collectively necessary for a particular technology, their competing intellectual property rights form a "patent thicket".
@article{eisenmann2008managing,
jstor_articletype = {research-article},
title = {Managing Proprietary and Shared Platforms},
author = {Eisenmann, Thomas R.},
journal = {California Management Review},
jstor_issuetitle = {},
volume = {50},
number = {4},
jstor_formatteddate = {Summer 2008},
pages = {pp. 31-53},
url = {http://www.jstor.org/stable/41166455},
ISSN = {00081256},
abstract = {In a platform-mediated network, users rely on a common platform (provided by one or more intermediaries) that encompasses infrastructure and rules required by users to transact with each other. A fundamental design decision for firms that aspire to develop platform-mediated networks is whether to preserve proprietary control or share their platform with rivals. A proprietary platform has a single provider that solely controls its technology (for example, Federal Express, Apple Macintosh, or Google). With a shared platform such as Visa, DVD, or Linux, multiple firms collaborate in developing the platform's technology and then compete in offering users different but compatible versions of the platform. This article examines factors that favor proprietary versus shared models when designing platforms and then explains how management challenges differ for proprietary and shared platform providers when mobilizing new networks.},
language = {English},
year = {2008},
publisher = {University of California Press},
copyright = {Copyright © 2008 University of California Press},
filename={Eisenmann (2008) - Managing Proprietary And Shared Platforms.pdf}
}
Mgmt: Discussion: Platforms (TV adds)
A second type of IP-based claim can occur when shared platforms rely on many different patented technologies, each of which has no obvious substitute. Firms may find themselves in a patent "thicket," in which several parties are able to derail a shared platform by threatening to withhold necessary contribu- tions.12 Each firm can issue an ultimatum, demanding a large share of the plat- form's added value
@article{eisenstein2010up,
title={Up for grabs},
author={Eisenstein, M.},
journal={Nature Biotechnology},
volume={28},
number={6},
pages={544--546},
year={2010},
publisher={Nature Publishing Group},
filename={Eisenstein (2010) - Up For Grabs.pdf}
}
Biology: Discussion: Stem Cells
As recently as three months ago, it still all seemed so simple. Shinya Yamanaka, whose team at the University of Kyoto in Japan is generally acknowledged by the research community as the first to successfully reprogram differentiated cells into iPS cells1, was also the sole patent holder for the technology. But as with any other patent land grab, iPS cell intellectual property (IP) is beginning to look less and less like a one-horse race. Two other recently issued patents in the United States and United Kingdom (Table 1), each awarded to a different inventor with a potentially strong claim to priority, now stand alongside Yamanaka’s patent, which was exclusively issued in Japan. With this newly tangled IP landscape, questions are arising about the possible emergence of a patent thicket.
@misc{entezarkheir2010patent,
title={Patent Thickets and Market Value: An Empirical Analysis},
author={Entezarkheir, M.},
year={2010},
filename={Entezarkheir (2010) - Patent Thickets And Market Value An Empirical Analysis.pdf}
}
Econ: Empirical: CORE PAPER
In this paper, I study how the fragmentation of the ownership of complementary patents impacts the market value of the firm. This fragmentation builds a patent thicket, which contains a set of overlapping patents.3 The patent thicket requires obtaining permission from several right holders to commercialize a product. Firms that face a fragmented technology market have to pay higher transaction costs and royalty payments to license external patents, because they are confronted with larger number of entities in the thicket. They are more prone to opportunistic behaviour by external entities, since the likelihood of infringing other firms’ patents is high. They are also more exposed to the risk of being litigated against by other patent holders. Finally, they incur higher costs in finding out whether the technologies they use have been patented by other firms.
@article{evans2004software,
title={Software patents and open source: the battle over intellectual property rights},
author={Evans, D.S. and Layne-Farrar, A.},
journal={Va. JL \& Tech.},
volume={9},
pages={10--13},
year={2004},
publisher={Virginia Journal of Law and Technology Virginia Journal of Law and Technology},
filename={Evans LayneFarrar (2004) - Software Patents And Open Source.pdf}
}
Econ: Discussion: Sofware CORE PAPER
The theoretical economics literature argues that when innovations are sequential and cumulative, patents may impose more than the typical exclusion-period costs.113 For instance, a patent for an invention early in the innovative process could impose a toll on each sequential innovation that relies on it. Subsequent inventors, therefore, face higher transaction costs––they must pay licensing fees before they can further refine a technology. As the tolls build during the technology’s development path, later research could be discouraged altogether. Alluding to the famous argument for property rights, over-patenting has been dubbed the “tragedy of the anticommons,” as too many people with exclusionary rights can cause underutilization of resources.114 Shapiro uses another metaphor: the patent thicket
the truth resides in one strain of the theoretical literature arguing against patents. Similarly, while the law and economics literature has established that patent thickets are possible, what little empirical evidence is available on this point indicates that they are not inevitable. Means of working around the exclusionary effects of patents––such as patent pools and cross-licensing––are available to the software industry.
@article{farrell2009intellectual,
jstor_articletype = {research-article},
title = {Intellectual Property as a Bargaining Environment},
author = {Farrell, Joseph},
journal = {Innovation Policy and the Economy},
jstor_issuetitle = {},
volume = {9},
number = {1},
jstor_formatteddate = {2009},
pages = {pp. 39-53},
url = {http://www.jstor.org/stable/10.1086/592420},
ISSN = {15313468},
abstract = {Executive Summary Intellectual property policy relies on bargaining in the shadow of exclusivity. But bargaining is generically less than fully efficient, and the bargaining that would be needed to reach efficient arrangements in the shadow of exclusivity may be especially difficult in certain ways. I explore these issues and illustrate with brief discussions of patent pools and standards organizations, among others.},
language = {English},
year = {2009},
publisher = {The University of Chicago Press},
copyright = {Copyright © 2009 The National Bureau of Economic Research},
filename={Farrell (2009) - Intellectual Property As A Bargaining Environment.pdf}
}
Econ: Discussion: Bargaining in IP CORE and DOWN paper
One common and intuitively difficult information problem arises when a producer does not know with whom it must negotiate concerning patents. One might call this a “potential-patent thicket,” as distinct from the “actual-patent thicket” that can create multiple-marginalization problems when many patents are known to be infringed by a product.
@article{federal2003promote,
title={To promote innovation: The proper balance of competition and patent law and policy},
author={Federal Trade Commission},
journal={Washington, DC},
year={2003},
filename={FTC (2003) - To Promote Innovation.pdf}
}
Policy: Key FTC report
This tends to create a “patent thicket” – that is, a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.
Questionable patents contribute to the patent thicket. In the context of a patent thicket, questionable patents can introduce new kinds of licensing difficulties, such as royalties stacked one on top of another, and can increase uncertainty about the patent landscape, thus complicating business planning. Questionable patents in patent thickets can frustrate competition by current manufacturers as well as potential entrants. Because a manufacturer needs a license to all of the patents that cover its product, firms can use questionable patents to extract high royalties or to threaten litigation
@article{federal2011evolving,
title={The Evolving IP Marketplace: Aligning patent notice and remedies with competition.”},
author={Federal Trade Commission},
journal={March, available at http://www.ftc.gov/os/2011/03/110307patentreport.pdf},
year={2011},
filename={FTC (2011) - The Evolving IP Marketplace.pdf}
}
Policy: Key FTC report
See above. We should compare the two reports!
@article{feldman2004open,
title={The Open Source Biotechnology Movement: Is It Patent Misuse?},
author={Feldman, R.},
journal={Minnesota Journal of Law, Science \& Technology},
volume={6},
year={2004},
filename={Feldman (2004) - The Open Source Biotechnology Movement Is It Patent Misuse.pdf}
}
Law: Theory/Discussion: Biotech, open source
Scholars have used the term “patent thicket” to describe the problem of multiple overlapping rights that can hamper innovation by creating transaction barriers.20 Most scholars and those reporting from the field agree that large numbers of rights hamper research and innovation, particularly in the biotech field.21 One scholar, however, has challenged the notion.22 John Walsh argues that firms simply work around the problem of multiple rights for example, by moving offshore beyond the reach of the patent rights, inventing around the rights, and using public research tools.23 In particular, Walsh argues that academic researchers routinely ignore rights structures and that patent holders passively acquiesce.
@article{feldman2008open,
title={Open Source, Open Access, Open Transfer: Market Approaches to Research Bottlenecks},
author={Feldman, R. and Nelson, K.},
year={2008},
filename={Feldman Nelson (2008) - Open Source Open Access Open Transfer.pdf}
}
Law: Theory: Academic research tools
On the patent front, a key debate concerns the existence, or non-existence, of bottlenecks such as patent thickets and the extent to which any patent thickets may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation.1 In theory, multiple overlapping patent rights can hamper innovation by creating high transactions costs as researchers try to navigate the tangle of existing rights. These costs can discourage investment in research or distort the paths that researchers take due to the difficulty of identifying and negotiating all of the underlying rights necessary to begin researching. This leads to inefficiencies and underutilization of intellectual resources. Across the years, patent mavens traded stories of research deterred or research deferred due to patent thickets.2 Innovation costs also may rise as rational enterprises factor in the risk that their inventions will be plagued by suits from patent holders who emerge from the shadows of the patent thicket to claim a share as soon as the invention is successful.3
@article{fischer2011patent,
title={Patent Trolls on Markets for Technology-An Empirical Analysis of Trolls' Patent Acquisitions},
author={Fischer, T. and Henkel, J.},
journal={Available at SSRN 1523102},
year={2011},
filename={Fischer Henkel (2011) - Patent Trolls On Markets For Technology.pdf}
}
Econ: Empirical: Trolls - which patents they buy
The second patent characteristic patent trolls should favor is a high cost of substituting the underlying invention in products. This substitution cost increases with the difficulty of inventing around the patent, which in turn is high if the patent density and complexity of the relevant technology field is high. This means that many patents exist that have a high degree of overlap between them and with the patent under consideration, so that finding a gap for a non-patented substitutive technology is difficult. In other words, the focal patent is part of a patent thicket (Shapiro, 2001).
@article{galasso2007broad,
title={Broad cross-license agreements and persuasive patent litigation: theory and evidence from the semiconductor industry},
author={Galasso, A.},
journal={LSE STICERD Research Paper No. EI45},
year={2007},
filename={Galasso (2007) - Broad Cross License Agreements And Persuasive Patent Litigation.pdf}
}
Econ: Theory and empirics: Determining cross-license agreements
To uncover the incentives behind these contracts, I have developed a model of bargaining with learning in which firms litigate over their patent disputes if they do not agree upon a cross-license. The model predicts that the incentive to litigate decreases with firm investment in specific technology. More precisely, I have shown that whereas firms with low asset specificity prefer not to sign a cross-license agreement, firms with high sunk costs are better off cross-licensing their intellectual property. In addition, the model predicts that firms with intermediate levels of sunk costs will engage in inefficient “persuasive” litigation aimed at obtaining a better deal in a broad cross-license contract. I have tested the predictions of the model using a novel dataset merging data on cross-license agreements, patent litigation and financial variables for firms in the semiconductor industry.
renders it difficult to commercialize a new technology. In some industries the number of intellectual property rights a firm requires to produce a new product is so large, and their ownership is so dispersed, that it is quite easy to unintentionally infringe on a patent. In this environment there is, therefore, a hold-up problem: when the manufacturer starts selling its product a patentee might show up threatening to shut production down unless it is paid high royalties.
@article{galasso2008patent,
title={Patent Thickets and the Market for Innovation: Evidence from Settlement of Patent Disputes},
author={Galasso, A. and Schankerman, M.},
year={2008},
publisher={CEPR Discussion Paper No. DP6946},
filename={Galasso Schankerman (2008) - Patent Thickets And The Market For Innovation.pdf}
}
Econ: Empirical: Fragmentation leads to quicker settlement (CORE PAPER)
are the fragmentation of patent rights (often referred to as ‘patent thickets’)
In this paper we investigate how the fragmentation of patent rights and the introduction 2 in 1982 of the Court of Appeal for the Federal Circuit (CAFC) affected the length of (costly) patent infringement disputes. We develop a model that focuses on how the uncertainty of the enforcement regime and ‘upstream’ fragmentation affect ‘downstream’ bargaining behavior during patent litigation. Our model extends the settlement negotiation game of Bebchuk (1984) and Spier (1992) by considering features of patent ownership fragmentation similar to those described in Lerner and Tirole (2004). The model shows that settlement agreements will be reached more quickly when the patent rights needed by the infringer are more fragmented (ownership is more dispersed) and in the more ‘certain’ enforcement regime associated with CAFC.
@article{galasso2010patent,
title={Patent thickets, courts, and the market for innovation},
author={Galasso, A. and Schankerman, M.},
journal={The RAND journal of economics},
volume={41},
number={3},
pages={472--503},
year={2010},
publisher={Wiley Online Library},
filename={Galasso Schankerman (2010) - Patent Thickets Courts And The Market For Innovation.pdf}
}
Econ: Theory and Empirical: Fragmentation leads to quicker settlement (CORE PAPER)
Seems like an improved version of above with a model? READ IT PROPERLY!
@article{gallini2011private,
title={Private agreements for coordinating patent rights: the case of patent pools},
author={Gallini, N.},
journal={Economia e Politica Industriale},
year={2011},
publisher={FrancoAngeli Editore},
filename={Gallini (2011) - Private Agreements For Coordinating Patent Rights.pdf}
}
Econ: Theory: Patent Pools
In synthesizing the ideas advanced in the economic literature, this paper explores whether these antitrust concerns apply to pools with complementary patents and, if they do, the implications for competition policy to constrain them. Special attention is given to the application of the U.S. Department of Justice-Federal Trade Commission Guidelines for the Licensing of Intellectual Property (1995) and its companion Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (2007) to recent patent pool cases.
A patent thicket arises when there are overlapping patent rights that must be identified and licensed in order for an innovator to bring a new product or technology to market
@article{gallini2002economics,
title={The economics of patents: Lessons from recent US patent reform},
author={Gallini, N.T.},
journal={Journal of Economic Perspectives},
pages={131--154},
year={2002},
publisher={JSTOR},
filename={Gallini (2002) - The Economics Of Patents Lessons From Recent Us Patent Reform.pdf}
}
Econ/Policy: Patent Policy basics and reform
Doesn't mention thickets explicitly.
Good material for the underpinnings...
@incollection{gallini2002intellectual,
title={Intellectual property: when is it the best incentive system?},
author={Gallini, N. and Scotchmer, S.},
booktitle={Innovation Policy and the Economy, Volume 2},
pages={51--78},
year={2002},
publisher={MIT Press},
filename={Gallini Scotchmer (2002) - Intellectual Property When Is It The Best Incentive System.pdf}
}
Econ/Policy: Best IP incentive system
Doesn't mention thickets explicitly.
Good material for the underpinnings...
A recurring theme, especially evident in these contexts, is that despite the efficiencies that contracting can ensure, contracting may also facilitate anti-competitive behavior. See Hall and Ham (1999), Shapiro (2000), Denicolò (2000). To understand whether the property system is too strong, too weak, or necessary at all requires us to understand the incentives for contracting, and its potential anticompetitive consequences.
@article{ganslandt2009intellectual,
title={Intellectual property rights and competition policy},
author={Ganslandt, M.},
year={2009},
publisher={Emerald Group Publishing Limited},
filename={Ganslandt (2009) - Intellectual Property Rights And Competition Policy.pdf}
}
Policy: Patent and Antitrust
Intellectual property rights and competition policy are intimately related. In this paper I survey the economic literature analyzing the interaction between intellectual property law and competition law and how the boundary between these two policies is drawn in practice.
In some industries, particularly biotechnology and information technologies, it is common that a new entrant, in order to engage in research or production, must obtain a large number of licenses from existing and previous innovators and producers. This problem raises the cost of product commercialization and may create substantial entry barriers for new firms. For example, Bessen and Meurer (2006) point to the fact that the large number of patents facing a typical innovator makes careful assessment of avenues open for competition burdensome and costly.
@article{gaule2006towards,
title={Towards Patent Pools in Biotechnology?},
author={Gaul{\'e}, P.},
journal={Innovation Strategy Today},
volume={2},
number={2},
pages={123--143},
year={2006},
filename={Gaule (2006) - Towards Patent Pools In Biotechnology.pdf}
}
Mgmt/Law: Discussion (v. small): Biotech
The IP rights situation described above was arguably a classical case of a patent thicket with fragmented IP rights and uncertainty about technology ownership. The option of a patent pool for this technology was raised (Fedson 04), but instead the situation was resolved by one patent owner acquiring exclusive licenses from the other ones.
@article{george2006hiding,
title={What Is Hiding in the Bushes-Ebay's Effect on Holdout Behavior in Patent Thickets},
author={George, G.D.},
journal={Mich. Telecomm. \& Tech. L. Rev.},
volume={13},
pages={557},
year={2006},
publisher={HeinOnline},
filename={George (2006) - What Is Hiding In The Bushes Ebays Effect On Holdout Behavior In Patent Thickets.pdf}
}
Law: Discussion: CORE PAPER
A patent thicket exists where there are numerous different firms holding patents that are legally and technologically distinct, but overlap to cover a much smaller number of actual or potential commercial products.2 For example, over five thousand patents have now been granted in the area of nanotechnology despite the fact that no nanotech products have yet been commercialized.3
@article{geradin2007royalty,
title={Royalty stacking in high tech industries: separating myth from reality},
author={Geradin, D. and Layne-Farrar, A. and Padilla Blanco, A.},
year={2007},
publisher={CEPR Discussion Paper No. DP6091},
filename={Geradin (2007) - Royalty Stacking In High Tech Industries Separating Myth From Reality.pdf}
}
Econ: Review: CORE Paper
Shaprio def. But has lit review and history.
@article{geradin2008complements,
title={The complements problem within standard setting: assessing the evidence on royalty stacking},
author={Geradin, D. and Layne-Farrar, A. and Padilla Blanco, A.},
journal={Boston University Journal of Science and Technology Law, Vol. 14, No. 2, 2008},
year={2008},
filename={Geradin LayneFarrar PadillaBlanco (2008) - The Complements Problem Within Standard Setting.pdf}
}
Econ: Review: CORE PAPER (Might be same as above)
@article{geroski2005intellectual,
title={Intellectual Property Rights, Competition Policy and Innovation: Is There a Problem?},
author={Geroski, P.A.},
journal={SCRIPT ed},
volume={2},
year={2005},
filename={Geroski (2005) - Intellectual Property Rights Competition Policy And Innovation.pdf}
}
Policy: Competition vs. patents
The second problem arises with complex innovations. When a new innovation draws on several different areas of technology, then the innovator will need to undertake a series of bilateral negotiations with existing intellectual property rights holders if his/her innovation is to see the light of day. This, in turn, means that any individual antecedent patent holder has the ability to hold up the new innovation, possibly using this bargaining power to extract most of the returns that it promises to produce for its creator. These “patent thickets”, as they are sometimes called, basically inflate the (2005) 2:4 SCRIPT-ed 425 transactions costs of developing a new innovation, and are, therefore, likely to inhibit the rate of development of new ideas or the good and services that come from them.
I started this paper with a question - is the system of intellectual property rights, with which we are all familiar, the best way to stimulate innovation? The gist of what I have had to say is that the answer is “maybe”. In a sense, this is not a surprising conclusion: it is just too hard to be sure what the best policy is in almost every setting in which this question comes up. At a more sensible level, however, “maybe” is an answer pregnant with possibilities. Most of these arise from two different types of observations: first, that intellectual property rights systems can inhibit innovation, or at least distort it in particular directions; and second, that competition and innovation are not inimical. For me, as a competition policy practitioner, the argument that competition stimulates innovation is an important one, for it suggests that competition policy is not necessarily in conflict with the use of intellectual property rights to stimulate innovation. At a practical level, this argument seems to me to have two implications. First, it seems clear that one ought to regard restrictive licensing practices as just what they are: namely, restrictive practices. In this, as in many other areas of anti-trust, the rule of reason ought to apply. That is, such practices should be evaluated in the context of the benefits which they might – or might not – bring to consumers, in both the short and also the long run. Second, anything that substantially lessens, or adversely affects, competition in a particular market is, or should at least potentially be regarded as, a threat to innovation. And, finally, the need to stimulate innovation is the one thing that both competition policy and intellectual property rights have in common.
@article{gilbert2004antitrust,
title={Antitrust for patent pools: A century of policy evolution},
author={Gilbert, R.J.},
journal={Stanford Technology Law Review},
volume={2004},
year={2004},
filename={Gilbert (2004) - Antitrust For Patent Pools A Century Of Policy Evolution.pdf}
}
Law: History of Anti-trust and patent pools
The court ruled that the agreement to license present and future patents and to share know-how contributed to a patent thicket that created a barrier to new entry and allowed DuPont and National Lead to control the domestic industry for titanium dioxide products.
@article{gilbert2010ties,
title={Ties That Bind: Policies to Promote (Good) Patent Pools},
author={Gilbert, R.J.},
journal={Antitrust Law Journal},
year={2010},
filename={Gilbert (2010) - Ties That Bind Policies To Promote Good Patent Pools.pdf}
}
Law: Discussion: Patent Pools as a solution to thickets - anti-trust's take on this...
A “patent thicket,” in which many independent patent holders have rights that cover a technology, is one example of the anticommons.5 A patent thicket exists when rights to many patents from different patentees are necessary to lawfully make or sell a product (overlapping rights).6 Patent thickets are common to many high-technology industries in which the manufacture, use, or sale of a device or process may require rights to hundreds of patents.7 Overlapping patent rights raise numerous potential economic problems. Transaction costs of licensing can be high because licensees must identify, search out, and negotiate with numerous separate licensors. Litigation risks can be high because an incomplete portfolio of patent licenses can expose a firm to potentially large infringement damages. Royalties can be high if each of many independent licensors of complementary patents attempts to obtain a large share of the economic value of products that may infringe its patent. For these reasons a patent thicket can raise prices and discourage innovation relative to a situation with fewer patents or with coordinated licensing of the overlapping patent rights.8
@article{gilbert1982preemptive,
title={Preemptive patenting and the persistence of monopoly},
author={Gilbert, R.J. and Newbery, D.M.G.},
journal={The American Economic Review},
pages={514--526},
year={1982},
publisher={JSTOR},
filename={Gilbert Newbery (1982) - Preemptive Patenting And The Persistence Of Monopoly.pdf}
}
Econ: Theory: Entry deterence (monopoly)
This paper takes a different tack and inquires whether institutions such as the patent system create opportunities for firms with monopoly power to maintain their monopoly power. The results apply to other situations such as brand identification, spatial location, and capacity expansion, which share the characteristic that early, or preemptive, actions may lower the returns to potential competitors. Preemptive invention is not without topical interest. In a recent antitrust case-the longest jury trial on record in the federal courts-the SCM Corporation sought more than $500 million in damages on its claim that the Xerox Corporation, among other alleged anticompetitiveb ehavior,h ad maintained a "patent thicket" where some inventions were used while others were neither used nor licensed to others
@article{goozner2006innovation,
title={Innovation in biomedicine: can stem cell research lead the way to affordability?},
author={Goozner, M.},
journal={PLoS medicine},
volume={3},
number={5},
pages={e126},
year={2006},
publisher={Public Library of Science},
filename={Goozner (2006) - Innovation In Biomedicine.pdf}
}
Biology: Policy: Stem Cell
The current innovation system encourages researchers to patent and commercialize discoveries that in an earlier era were considered basic science insights. This has led to an active market in the building blocks of further research, which can be anything from a genetic sequence or a cell receptor to the reagents needed to culture cells. This proliferation of basic science patents has raised the bar— what economists call transaction costs— for other researchers who want access to those research tools. While many researchers, especially in academia, fi nd ways around patent restrictions, and many companies have no trouble executing license agreements, there are cases where “patent thickets” have discouraged other researchers from pursuing similar or subsequent lines of inquiry [5].
@article{grindley1997licensing,
title={Licensing and Cross-Licensing in Semiconductors and Electronics},
author={Grindley, P.C. and Teece, D.J.},
journal={California Management Review},
volume={39},
number={2},
year={1997},
filename={Grindley Teece (1997) - Licensing And Cross Licensing In Semiconductors And Electronics.pdf}
}
Mgmt: Cross-licensing, semiconductors
No mention of thickets. But old (seminal) paper.
@article{gugler2007market,
jstor_articletype = {research-article},
title = {Market Power versus Efficiency Effects of Mergers and Research Joint Ventures: Evidence from the Semiconductor Industry},
author = {Gugler, Klaus and Siebert, Ralph},
journal = {The Review of Economics and Statistics},
jstor_issuetitle = {},
volume = {89},
number = {4},
jstor_formatteddate = {Nov., 2007},
pages = {pp. 645-659},
url = {http://www.jstor.org/stable/40043091},
ISSN = {00346535},
abstract = {Merger control authorities may approve a merger based on an "efficiency defense." An important aspect in clearing mergers is that the efficiencies need to be merger-specific. Joint ventures, and in particular research joint ventures (RJVs), may achieve comparable efficiencies possibly without the anticompetitive (market power) effects of mergers. We empirically account for the endogenous formation of mergers and RJVs and provide evidence that at the semiconductor level, mergers and RJVs achieve dominant (net) efficiency effects. Our counterfactuals provide evidence that the efficiency gains caused by mergers would have been achieved by RJVs as well. Therefore, RJVs often represent viable alternatives to mergers from the consumer welfare point of view. At the more disaggregate level we find that the efficiency effects are larger in the microcomponents than in the memory market. This finding emphasizes the importance of market determinants (such as product differentiation and entry) having an impact on efficiency and market power effects.},
language = {English},
year = {2007},
publisher = {The MIT Press},
copyright = {Copyright © 2007 The MIT Press},
filename={Gugler Siebert (2007) - Market Power Versus Efficiency Effects Of Mergers And Research Joint Ventures.pdf}
}
Econ: Semiconductor: Efficiency of mergers
Our counterfactuals pro- vide evidence that the efficiency gains caused by mergers would have been achieved by RJVs as well. Therefore, RJVs often represent viable alternatives to mergers from the consumer welfare point of view. At the more disaggregate level we find that the efficiency effects are larger in the microcomponents than in the memory market. This finding emphasizes the importance of market determinants (such as product differentiation and entry) having an impact on efficiency and market power effects
Incre- mental process innovations occur more frequently in the memory segment, creating a higher density of the patent thicket. This fact is in line with the patent thicket literature see, for example, Hall and Ziedonis (2001) and Shapiro (2001).1
@article{hall2005note,
title={A note on the bias in Herfindahl-type measures based on count data},
author={Hall, B.H.},
journal={Revue D' Economie Industrielle, Paris Editions, Techniques Et Economiques},
volume={110},
pages={149},
year={2005},
publisher={Citeseer},
filename={Hall (2005) - A Note On The Bias In Herfindahl Type Measures Based On Count Data.pdf}
}
Econ: Econometrics: CORE PAPER!
@article{hall2005exploring,
title={Exploring the patent explosion},
author={Hall, B.},
journal={Essays in Honor of Edwin Mansfield},
pages={195--208},
year={2005},
publisher={Springer},
filename={Hall (2005) - Exploring The Patent Explosion.pdf}
}
Econ: Patents
No mention of thickets in 2005 paper!
I am able to confirm that after the mid-1980s, patents held by entrants to the publicly traded sector are indeed more highly valued than those held by incumbents. An industry decomposition of this effect shows that it is concentrated in what Cohen, Nelson, and Walsh (2001) label complex product industries, which are industries where a single products can contain intellectual property covered by thousands of patents held by hundreds of patentholders. In such industries, patent portfolios often serve the defensive function of facilitating cross-licensing negotiations, rather than the traditional role of excluding competitors and securing the ownership of particular inventions. Although patent yield per se is not valued for incumbents in any of the industries, I show that in complex product industries there has been a strong positive shift in valuation for entrants as we enter the pro-patent era.
@article{hall2007patents,
title={Patents and patent policy},
author={Hall, B.H.},
journal={Oxford Review of Economic Policy},
volume={23},
number={4},
pages={568--587},
year={2007},
publisher={Oxford Univ Press},
filename={Hall (2007) - Patents And Patent Policy.pdf}
}
Econ: Patents
Barely mentions thickets, but sets the stage well.
During the U.S. Federal Trade Commission/Department of Justice hearings on the patent 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 “held-up” ex post by a patent on a technology that was only a small component of their product. This complaint was heard largely from those in the complex product industries (the ICT sector), such as Robert Barr, then Vice-President for Intellectual Property and Worldwide Patent Counsel at Cisco Corporation. He described two types of problems faced by firms in the sector: the first being the large stockpiling of patents necessary as a defensive measure against others in the industry and the second being the threat posed by small entities that have nothing at risk themselves and may not even be producers.
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.
@article{hall2012study,
title={A Study of Patent Thickets},
author={Hall, B.H. and Helmers, C. and von Graevenitz, G. and Rosazza-Bondibene, C.},
journal={Draft Report to the UK IPO},
pages={1--66},
year={2012},
filename={Hall (2012) - A Study Of Patent Thickets.pdf}
}
Econ: Patent Thickets!: CORE PAPER
A patent thicket is “a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology” (Shapiro, 2000). Patent thickets consist of patents that protect components of a modular and complex technology. Here modular means that different sets of components can be assembled to yield a variety of technological products. Complex means that products consist of tens or hundreds of such modular components. Each component may end up being used in several products. Often there are partial or complete overlaps in the functionality of components and then the patents protecting the components may also overlap. If overlapping patents belong to different firms, then a patent thicket exists.
@article{hall2001patent,
title={The patent paradox revisited: an empirical study of patenting in the US semiconductor industry, 1979-1995},
author={Hall, B.H. and Ziedonis, R.H.},
journal={RAND Journal of Economics},
pages={101--128},
year={2001},
publisher={JSTOR},
filename={Hall Ziedonis (2001) - The Patent Paradox Revisited.pdf}
}
Econ: Semiconductors: CORE PAPER
@article{hargreaves2011digital,
title={Digital opportunity: a review of intellectual property and growth: an independent report},
author={Hargreaves, I.},
year={2011},
publisher={Intellectual Property Office},
filename={Hargreaves (2011) - Digital Opportunity.pdf}
}
Policy: CORE PAPER
This patenting boom is leading to problems of patent office backlogs and the emergence of so called “patent thickets”, which obstruct entry to some markets and so impede innovation. 6. Patent thickets and other obstructions to innovation. In order to limit the effects of these barriers to innovation, the Government should: • take a leading role in promoting international efforts to cut backlogs and manage the boom in patent applications by further extending “work sharing” with patent offices in other countries; • work to ensure patents are not extended into sectors, such as non-technical computer programs and business methods, which they do not currently cover, without clear evidence of benefit; • investigate ways of limiting adverse consequences of patent thickets, including by working with international partners to establish a patent fee structure set by reference to innovation and growth goals rather than solely by reference to patent office running costs. The structure of patent renewal fees might be adjusted to encourage patentees to assess more carefully the value of maintaining lower value patents, so reducing the density of patent thickets.
This finding may be due to the existence of patent thickets – meaning “an overlapping set of patent rights” which require innovators to reach licensing deals for multiple patents from multiple sources.12 These thickets appear to enable patent holders to exclude new and innovative firms from entering the market, thereby inhibiting growth. In these high technology and information intensive sectors we need to ensure that the IP system acts as a net incentive to innovation and growth.
@article{harhoff2008incidence,
title={Incidence and Growth of Patent Thickets-The Impact of Technological Opportunities and Complexity},
author={Harhoff, D. and Von Graevenitz, G. and Wagner, S.},
journal={CEPR Discussion Papers},
volume={6900},
year={2008},
publisher={CEPR Discussion Papers},
filename={Harhoff (2008) - Incidence And Growth Of Patent Thickets.pdf}
}
Econ: Patent thickets: 88-02, 30 industries, EPO data CORE PAPER
fragmentation index has predominantly been studied in complex industries (Ziedonis, 2004, Schankerman and Noel, 2006) where increasing fragmentation raises firms’ patent applications. This is attributed to firms’ efforts to reduce potential hold-up by opportunistic patentees owning critical or blocking patent rights – a situation which is associated with the existence of patent thickets. This index does not measure hold-up potential as precisely as the complexity measure we discuss above.
@article{harhoff2012conflict,
title={Conflict Resolution, Public Goods and Patent Thickets},
author={Harhoff, D. and Von Graevenitz, G. and Wagner, S.},
journal={Public Goods and Patent Thickets (April 15, 2012)},
year={2012},
filename={Harhoff VonGraevenitz Wagner (2012) - Conflict Resolution Public Goods And Patent Thickets.pdf}
}
Econ: EPO data CORE PAPER
Moreover, the presence of patent thickets, i.e., fields with a high number of patents that have similar or overlapping claims
@article{hegde2009pioneering,
title={Pioneering Inventors or Thicket Builders: Which US Firms Use Continuations in Patenting?},
author={Hegde, D. and Mowery, D.C. and Graham, S.J.H.},
journal={Management Science},
volume={55},
number={7},
pages={1214--1226},
year={2009},
publisher={INFORMS},
filename={Hegde Mowery Graham (2009) - Pioneering Inventors Or Thicket Builders.pdf}
}
Econ: Patent Continuations: CORE PAPER (just) These lower-quality patents can be valuable to patentholders seeking to accumulate a thicket of patents for “defensive” purposes and/or to improve their bargaining position in patent cross-licensing negotiations (Shapiro 2001). Additionally, according to Lemley and Moore (2004), inventors may use the continuations procedure to increase uncertainty for rivals’ research and development (R&D) investment decisions, or to acquire so-called “submarine patents.”1�2
A high proportion of backward self-cites is another potential correlate of patenting strategies that accumulate “thickets” of patents that overlap and cite one another. We found that patents owned by Compustat firms issuing from post-1995 CAPs contained a significantly higher proportion of backward self-citations than any other group of patents, whereas CAPs prior to 1995 cited their own patents less frequently than patents issuing from any other type of continuation. This provides additional evidence on the increased use of CAPs in post-1995 strategies that involve building thickets of patents.
@article{heller1998thetragedy,
jstor_articletype = {research-article},
title = {The Tragedy of the Anticommons: Property in the Transition from Marx to Markets},
author = {Heller, Michael A.},
journal = {Harvard Law Review},
jstor_issuetitle = {},
volume = {111},
number = {3},
jstor_formatteddate = {Jan., 1998},
pages = {pp. 621-688},
url = {http://www.jstor.org/stable/1342203},
ISSN = {0017811X},
abstract = {Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another. When too many owners hold such privileges of use, the resource is prone to overuse - a tragedy of the commons. Depleted fisheries and overgrazed fields are canonical examples of this familiar tragedy. In an anticommons, according to this Article, multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use. When too many owners hold such rights of exclusion, the resource is prone to underuse - a tragedy of the anticommons. Empty Moscow storefronts are a canonical example of the tragedy of underuse. Anticommons property may appear whenever governments define new property rights in both post-socialist and developed market economies. Once an anticommons emerges, collecting rights into usable private property bundles can be brutal and slow. The difficulties of overcoming a tragedy of the anticommons suggest that policymakers should pay more attention to the content of property bundles, rather than focusing just on the clairty of rights.},
language = {English},
year = {1998},
publisher = {The Harvard Law Review Association},
copyright = {Copyright © 1998 The Harvard Law Review Association},
filename={Heller (1998) - The Tragedy Of The Anticommons.pdf}
}
Law: SEMINAL DOWN (FOUNDATION) ARTICLE.
In an anticommons, according to this Article, multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use. When too many owners hold such rights of exclusion, the resource is prone to underuse - a tragedy of the anticommons.
In the United States, vivid examples appear at the frontiers of Native American law and intellectual property protection.20
See infra section IV.D (discussing an anticommons in Native American allotted lands). In a forthcoming article, Rebecca Eisenberg and the author of this Article show how the recent proliferation of patent rights in basic biomedical research may lead paradoxically to fewer useful pharmaceutical products and procedures in the United States. A tragedy of the anticommons may be the unintended consequence of privatizing basic biomedical research.
@article{heller1998can,
title={Can patents deter innovation? The anticommons in biomedical research},
author={Heller, M.A. and Eisenberg, R.S.},
journal={Science},
volume={280},
number={5364},
pages={698--701},
year={1998},
publisher={American Association for the Advancement of Science},
filename={Heller Eisenberg (1998) - Can Patents Deter Innovation The Anticommons In Biomedical Research.pdf}
}
Law: CORE PAPER!!!
Never uses the term thicket. Foundational application of anti-commons to biotech patents.
In theory, in a world of costless transactions, people could always avoid commons or anticommons tragedies by trading their rights (10). In practice, however, avoiding tragedy requires overcoming transaction costs, strategic behaviors, and cognitive biases of participants (11), with success more likely within close-knit communities than among hostile strangers (12– 14). Once an anticommons emerges, collecting rights into usable private property is often brutal and slow (15).
@article{hemphill2003preemptive,
title={Preemptive patenting, human genomics, and the US biotechnology sector: balancing intellectual property rights with societal welfare},
author={Hemphill, T.A.},
journal={Technology in Society},
volume={25},
number={3},
pages={337--349},
year={2003},
publisher={Elsevier},
filename={Hemphill (2003) - Preemptive Patenting Human Genomics And The Us Biotechnology Sector.pdf}
}
Policy (academic): Biotech: human genomics
To forestall imitative activity and strengthen patent rights, firms often attempt to create a ‘patent thicket,’ i.e. obtaining patents not just on one central product or process, but on a host of related products or processes [11]. Firms that try to compete with the inventing firm will find their attempts to duplicate the central product or process blocked by the inventing firm’s grip on alternative technologies. Many of the firm’s patents on related products or processes may never be used or licensed; such ‘sleeping patents’ are held only to raise the costs of entry or imitation by potential rivals.
@article{holman2005biotechnology,
title={Biotechnology's Prescription for Patent Reform},
author={Holman, C.M.},
journal={J. Marshall Rev. Intell. Prop. L.},
volume={5},
pages={i},
year={2005},
publisher={HeinOnline},
filename={Holman (2005) - Biotechnologys Prescription For Patent Reform.pdf}
}
Law: 2005 patent reform act. Before discussing some of the implications of specific reforms on biotechnology, I digress briefly with a few general observations regarding biotechnology’s patent reform agenda. First, to a large extent, it is apparent that biotechnology values patents primarily for their ability to attract investment, and thus, the perceptions of investors with respect to patent reform play a dominant role in shaping the biotechnology position. Second, despite the widely-expressed fear that a proliferation of patents would have a deleterious effect on biomedical research, one sees very little evidence of that concern coming from the industry itself. To the contrary, biotechnology is one of the staunchest defenders of a strong patent system, and generally evinces little enthusiasm for reforms that might address the problem of a “patent thicket. serious threat to biotechnology research by creating a patent thicket, sometimes referred to as a “patent anticommons.”106 The theory is especially associated with articles published by Heller and Eisenberg in 1998, and Eisenberg and Rai in 2002.107 Proponents of the patent thicket hypothesis note that while patents traditionally were reserved for products, there has been an increasing tendency for biomedical researchers to patent upstream inventions, i.e., research tools and inputs If in fact a patent thicket is significantly impeding biotechnology research and development, one might expect that organizations representing the interests of biotechnology, such as BIO, WARF, and Genentech, would be advocating for reforms that would address the problem. Indeed, the biotechnology industry has never been shy about advocating for legislative action to address its concerns.112 But instead, these groups tend to be among the most adamant defenders of the status quo and strong patent rights. One might infer from this that a patent thicket is not in fact substantially impeding biotechnology.
@article{holman2006clearing,
title={Clearing a path through the patent thicket},
author={Holman, C.},
journal={Cell},
volume={125},
number={4},
pages={629--633},
year={2006},
publisher={Elsevier},
filename={Holman (2006) - Clearing A Path Through The Patent Thicket.pdf}
}
Law: Commentary: Biotech (plant seed?)
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,” rendering it virtually impossible to conduct biomedical research without inadvertently infringing upon a host of conflicting patent claims (Heller and Eisenberg, 1998; Rai and Eisenberg, 2002). Although in theory a researcher should be able to license the necessary technology inputs, in practice it is generally not feasible owing to the large number of different patent holders, each with their own licensing agenda. Some patent holders will not even consider licensing their technol technology to competitors, and in the U.S., a patentee can virtually never be compelled to grant a license. The problem is exemplified by the experience of the developers of “golden rice,” a genetically modified crop engineered to produce elevated levels of vitamin A (Ye et al., 2000). The project reportedly required access to technology inputs covered by over 70 different patents, and licensing the required intellectual property was viewed as a major obstacle to achieving success (RAFI communiqué, 2000). In the end, the patent owners agreed to freely license the necessary technologies, probably because golden rice was being developed for humanitarian purposes to prevent blindness in children in the developing world and was not considered commercially viable.
@article{holman2008trends,
title={Trends in human gene patent litigation},
author={Holman, C.M.},
journal={Science},
volume={322},
number={5899},
pages={198--199},
year={2008},
publisher={American Association for the Advancement of Science},
filename={Holman (2008) - Trends In Human Gene Patent Litigation.pdf}
}
Policy: Commentary: Gene patents
3). Much of the focus has been on the alleged detrimental impact of gene patents on the development and availability of diagnostic testing (1, 3, 4). Some have postulated that a “thicket” of patents 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 prime example (5, 6). Others claim that gene patents are uniquely difficult to design around and, thus, fundamentally more restrictive of followon developments than “traditional” patents (6)
@article{holman2012debunking,
title={Debunking the myth that whole-genome sequencing infringes thousands of gene patents},
author={Holman, C.M.},
journal={Nature biotechnology},
volume={30},
number={3},
pages={240--244},
year={2012},
publisher={Nature Publishing Group},
filename={Holman (2012) - Debunking The Myth That Whole Genome Sequencing Infringes Thousands Of Gene Patents.pdf}
}
Law: Nature: Whole Gene Sequencing
Doesn't mention thickets - but explicitly debunks that there is one with respect to WGS (whole-genome sequencing)
The assumption that 20% of human genes are patented, and that as a consequence WGS will inevitably result in the infringement of thousands of gene patents, is based on a gross misinterpretation of a single Science article. My analysis of the claims from a substantial sampling of the patents which form the basis for the Jensen & Murray article indicates that the vast majority of these patents would almost certainly not be infringed by WGS, either because they are not gene patents at all, or because they only claim isolated DNA molecules unlikely to be produced in WGS (e.g., long sequences and/ or cDNA sequences), or methods of genetic testing that would not encompass WGS.
@article{horn2003alternative,
title={Alternative approaches to IP management: One-stop technology platform licensing},
author={Horn, L.},
journal={Journal of commercial biotechnology},
volume={9},
number={2},
pages={119--127},
year={2003},
publisher={Palgrave Macmillan},
filename={Horn (2003) - Alternative Approaches To IP Management.pdf}
}
Law: Technology Platform licensing: MPEG LA: Standards, pools
By providing the marketplace with fair, reasonable, nondiscriminatory access to a portfolio of worldwide essential patents under a single licence, this example of a one-stop technology platform licensing programme enables widespread implementation, interoperability and use of fundamental broad-based technologies covered by many patents owned by many patent owners. This paper will: (1) present observations from MPEG LA’s unique experience and perspective including a description of the necessary elements and principles on which such efforts are based, what works and why; and (2) describe efforts to apply this innovative licensing model to the biotechnology and pharmaceutical industries within the larger context of historical patent pooling as a solution to biotechnology bottlenecks.
But, products and the standards on which they are based increasingly rely upon many patents owned by many patent owners. Therefore, if the ‘thicket’2 of essential IP rights underlying their use cannot be accessed under reasonable terms and conditions (eg cost) applied evenly to all similarly situated competitors, the best of standards often go unused.
@article{huang2009does,
title={Does patent strategy shape the long-run supply of public knowledge? Evidence from human genetics},
author={Huang, K.G. and Murray, F.E.},
journal={Academy of Management Journal},
volume={52},
number={6},
pages={1193--1221},
year={2009},
publisher={Academy of Management},
filename={Huang Murray (2009) - Does Patent Strategy Shape The Long Run Supply Of Public Knowledge.pdf}
}
Econ: Thickets: Human Genome CORE PAPER
In testing whether this effect shapes contributions to public knowledge, we relied on two characteristics that define the patent landscape: “thickets” and “fragmentation.” A patent thicket is “an overlapping set of patent rights requiring those seeking to commercialize new technology to obtain licenses from multiple patentees” (Shapiro 2001:1). We measured thickets as the number of patents claiming the same set of (gene) knowledge inputs.
Hypothesis 5. The denser the thicket of patents over knowledge claimed in a publication, the more the patent thicket negatively impacts the rate of follow-on publications.
Although the 2 percent difference provides weak support for Hypothesis 5, the underlying relationship between gene patent grant and long-run public knowledge production is clearly not linear in the number of gene patents and does not increase smoothly with thicket density.
Hypothesis 6. The greater the ownership fragmentation of patents over knowledge claimed in a publication, the more the fragmentation negatively impacts the rate of follow-on publications.
We therefore turned to an analysis of the ownership fragmentation of such patent thickets to examine whether ownership complexity contoured the impact of patents on long-run knowledge production. When we analyzed the impact of increase in fragmentation in model 5 of Table 7, we found strong support for Hypothesis 6. Specifically, over and above the baseline decline in expected citations of 5 percent (also see model 3, Table 6), there is an incremental 7 percent decline (p � .05) in follow-on knowledge production for every unit increase in fragmentation of the patent thicket (relative to the mean and in absolute terms).19
@article{hussinger2006silence,
title={Is silence golden? Patents versus secrecy at the firm level},
author={Hussinger, K.},
journal={Economics of Innovation and New Technology},
volume={15},
number={8},
pages={735--752},
year={2006},
publisher={Taylor \& Francis},
filename={Hussinger (2006) - Is Silence Golden Patents Versus Secrecy At The Firm Level.pdf}
}
Econ: Trade Secrets!
The focus is on product innovating firms in German manufacturing in 2000. The Mannheim Innovation Panel (MIP) and patent information from the German Patent and Trademark Office constitute the data base. In 2000, the MIP identifies firms that use patents and firms that use secrecy as a means of protecting their IP. The importance of patents and secrecy is proxied by the protected inventions’ success in the market, which is ultimately reflected in figures of sales with new products. Using tobit and instrumental variables regression a significant positive correlation between patenting and sales with new products turns out, whereas there is no effect for secrecy. This finding is in line with the hypothesis that for product innovating firms patenting is the more important method to protecting inventions in their market phase as opposed to secrecy, even though over the recent years a more strategic use of patenting has gained in importance. This result is confirmed by survey evidence in the same year suggesting that patents are more important than secrecy to protect IP from the firms’ point of view. The frequent use of secrecy may be explained by its protective value for early-stage inventions.
A further development is that patents gained in value by their ability to be linked with other patents, which encourages patenting of marginal inventions. 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: 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 instruments.
@article{huys2009legal,
title={Legal uncertainty in the area of genetic diagnostic testing},
author={Huys, I. and Berthels, N. and Matthijs, G. and Van Overwalle, G.},
journal={Nature biotechnology},
volume={27},
number={10},
pages={903--909},
year={2009},
publisher={Nature Publishing Group},
filename={Huys (2009) - Legal Uncertainty In The Area Of Genetic Diagnostic Testing.pdf}
}
Biology/Law: Genetic Diagnostic Testing
Different stakeholders have expressed concerns about the effect of ‘blocking patents’ or ‘patent thickets’ on genetic technology, arguing that because such claims are difficult or impossible to circumvent, they would increase genetic testing prices and hinder innovation2,3. The debate has been directed towards the creation of possible solutions for the potential “tragedy of the anticommons” and several collaborative licensing models have been proposed4
As this study shows that not that many blocking gene patents exist, proposals aiming at banning patents on human genes do not provide a plausible solution24, unless the ban would be on patents for broad genetic diagnostic methods as such. For instance, the European Society of Human Genetics (Vienna) has recently recommended avoiding patenting of the pure link between a mutation and disease2. More attention should be paid to the licensing practices in a ‘responsible’ way16,35,36. Otherwise, the risk exists that the control by owners of patents containing those broad claims with respect to genetic diagnostic testing may in the future dissociate actual genetic diagnostic testing from genetic counseling and clinical investigation, which is to the detriment of progress of the genetic diagnostic service and public healthcare system.
@article{iyama2005uspto,
title={The USPTO's proposal of a biological research tool patent pool doesn't hold water},
author={Iyama, S.},
journal={Stanford Law Review},
pages={1223--1241},
year={2005},
publisher={JSTOR},
filename={Iyama (2005) - The Usptos Proposal Of A Biological Research Tool Patent Pool Doesnt Hold Water.pdf}
}
Law: Patent Pools: USPTO Biological Research Tools
2 Specifically, IP rights to research tools can limit the viability of particular research scenarios because of the phenomenon known as patent thicketing.3 Patent thickets arise because of well-distributed and overlapping patent rights. Thus, a given research process will be adversely affected where a would-be investigator encounters difficulty in the assembly of utilization rights for each research tool required for the particular research scheme.4 To mitigate this problem of patent thicketing, the U.S. Patent and Trademark Office (USPTO) issued a white paper arguing for the creation of a patent pool, composed of biological research tools, to mechanically facilitate a broad licensing scheme of the necessary use rights.
@article{jacob2009patents,
title={Patents and Pharmaceuticals},
author={Jacob, Robin},
year={2009},
journal={A paper given on 29th November at the Presentation of the Directorate-General of Competition’s Preliminary Report of the Pharma-sector inquiry},
filename={Jacob (2009) - Patents And Pharmaceuticals.pdf}
}
Public Sector Inquiry: Pharma
I wish to emphasise that the phenomenon of evergreening is not confined to the pharma field. Nor is it new. Far from it. Every patentee of a major invention is likely to come up with improvements and alleged improvements to his invention. By the time his main patent has expired there will be a thicket of patents intended to extend his monopoly. Some will be good, others bad. It is in the nature of the patent system itself that this should happen and it has always happened. There is nothing new about “evergreening”, only the name and the implication which flows from the word, that there is something sinister going on and that it has only recently been discovered. My quotation from Blanco White shows this. I would add that the particular figure of “up to 1,300” patents for a cluster needs more detail. I do not believe it to be typical. In any event one one needs to divide the figure by 27 (for the membership of the EU).
@article{jensen2004achieving,
title={Achieving the optimal power of patent rights},
author={Jensen, P.H. and Webster, E.},
journal={Australian Economic Review},
volume={37},
number={4},
pages={419--426},
year={2004},
publisher={Wiley Online Library},
filename={Jensen Webster (2004) - Achieving The Optimal Power Of Patent Rights.pdf}
}
Patent system: Designing one!
Not copyable. Some mention of thickets. Strange def.
@article{joshi2011strategic,
title={When do strategic alliances inhibit innovation by firms? Evidence from patent pools in the global optical disc industry},
author={Joshi, A.M. and Nerkar, A.},
journal={Strategic Management Journal},
volume={32},
number={11},
pages={1139--1160},
year={2011},
publisher={Wiley Online Library},
filename={Joshi Nerkar (2011) - When Do Strategic Alliances Inhibit Innovation By Firms.pdf}
}
Econ/Mgmt: Patent Pools
No mention of thickets
Research and development (R&D) consortia are specialized strategic alliances that shape the direction and scope of firm innovation activities. Little research exists on the performance consequences of participating in R&D consortia. We study the effect of patent pools, a unique form of R&D consortia, on firm performance in innovation. While prior research on alliances generally implies that patent pools enhance firm innovation, our study finds the opposite. Analyzing data on systemic innovation in the global optical disc industry, we find that patent pool formation substantially and significantly decreases both the quantity and quality of patents subsequently generated by licensors and licensees relative to the patenting activity of nonparticipants. Our empirical findings suggest that patent pools actually inhibit, rather than enhance, systemic innovation by participating firms.
