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thicket_stance_extract={Possibilities and facts are not the same thing, however, and there is surprisingly little empirical data to show that the patent thicket is subtracting from the rate of innovation or society's benefit from it. Maybe that is happenning without anyone noticing, but the available evidence suggests otherwise.},
thicket_def={def11},
thicket_def_extract={"As Professor Correa writes, the resulting thicket of patents could 'deprive society of the benefits[of] ... widespread use and dissemination of basic scinetific ideas. Possibilities and facts are not the same thing, however, and there is surprisingly little empirical data to show that the patent thicket is subtracting from the rate of innovation or society's benefit from it. Maybe that is happening without anyone noticing, but the available evidence suggests otherwise."...the resulting lack of legal certainty harms everyone...},
tags={Against Thickets!},
filename={Attaran (2004) - Patents Do Not Strangle Innovation But Their Quality Must Be Improved.pdf}
tags={information, drm, control},
filename={Wagner (2003) - Information Wants to be Free}
}
@article{allison2003business,
title={The Business Method Patent Myth},
author={Allison, J.R. and Tiller, E.H.},
journal={Berkeley Tech. LJ},
volume={18},
pages={987},
year={2003},
abstract={Internet business method patents have been roundly criticized by most observers as being singularly inferior to most other patents. Many have even argued that business methods should not be patentable subject matter. As a result, Congress and the Patent and Trademark Office (“PTO”) singled them out for special treatment. All of these criticisms were, however, voiced without empirical support. We gathered data on most Internet business method patents issued through the end of 1999 and compared them with a large contemporaneous data set of patents in general. We also compared them with patents in fourteen individual technology areas within the general patent data set. Our comparison focused on several metrics that we believe serve as good proxies for patent quality and value. We found that Internet business method patents appear to have been no worse than the average patent, and possibly even better than most. They also appear to have been no worse, and possibly even better, than patents in most individual technology areas. These findings lead us to question the conventional wisdom that Internet business method patents were uniquely deficient. We briefly explore some possible explanations for the chasm between the accepted view and what we believe to have been the reality, including the possibility that negative opinions about these patents may have been the result of an information cascade. More importantly, we believe that efforts to single out these patents for special treatment not only lacked sound justification in the particular case but also reveal more fundamental problems associated with ex ante definitions to carve out any particular technology area for different treatment.},
discipline={Law},
research_type={empirical},
industry={Internet},
thicket_stance={Assumed Pro},
thicket_stance_extract={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. Re- gardless of the particular manifestation of portfolio value, previous research has not cap- tured this aspect of patent value, and we have not ascertained a way to estimate the effect of a patent’s contribution to a portfolio apart from whatever stand-alone value it may or may not have.},
thicket_def={refs shapiro, quotes shapiro},
thicket_def_extract={Carl Shapiro has called “a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.” Carl S. Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting,},
tags={patent quality, internet business methods are patentable, inter-industry comparison of patents and prior art references},
filename={Allison Tiller (2003) - The Business Method Patent Myth.pdf}
}
@inproceedings{arundel2003strategic,
title={Strategic Patenting},
author={Arundel, A. and Patel, P.},
booktitle={Background report for the Trend Chart Policy Benchmarking Workshop" New Trends in IPR Policy},
year={2003},
abstract={},
discipline={Policy},
research_type={Theory, Statistics from other papers},
industry={General, Public Research},
thicket_stance={Neutral},
thicket_stance_extract={Although there has been extensive discussion in the literature on patent thickets and licensing hold-ups, we know very little about how serious this problem is today or if it has slowed technological progress.},
thicket_def={Pro, quotes and refs shapiro, heller eisenberg},
thicket_def_extract={This has been called a patent thicket, or a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology” (Shapiro, in press).},
tags={offensive and defensive use of patents, discussion of balancing incentives and strategic patenting},
filename={Arundel Patel (2003) - Strategic Patenting.pdf}
}
@article{baluch2005re,
title={In re Kumar: the First Nanotech Patent Case in the Federal Circuit},
author={Baluch, A.S. and Radomsky, L. and Maebius, S.B.},
journal={Nanotech. L. \& Bus.},
volume={2},
pages={344},
year={2005},
abstract={On August 15, 2005, the Court of Appeals for the Federal Circuit decided what is arguably its first nanotech patent case, In re Kumar. Although the court adjudicated the case on procedural grounds, practitioners in the field of nanotechnology will appreciate several substantive themes in this decision. First, the court appears to treat a nanotechnology patent appeal no differently than patent appeals in cases involving other technologies. In this regard, the court did not establish any special rules for nanotechnology patents. Second, the U.S. Patent and Trademark Qffice ("PTO') is apparently taking the quality of nanotechnology patents seriously, with the Solicitor himself as lead counsel on the brief for the Commissioner of Patents and Trademarks. Third, the court's dicta provides nanotech inventors with guidance for overcoming § 103 obviousness rejections based on overlapping sizes of nanoparticles. Such an argument, as nanotech commentators had predicted, may be used to rebut a prima facie case of obviousness where, as in this case, the claimed nanotech product is made by a different process than that of the prior art,},
discipline={Law},
research_type={Discussion},
industry={Nanotech},
thicket_stance={Neutral},
thicket_stance_extract={While there is nothing in the patent law to prohibit new and nonobvious claims from overlapping (i.e., claims in different patents which cover the same product and which are new and not obvious over the prior art), the commentators expressed concern that the allowed claims in some patents may be obvious over the prior art},
thicket_def={Def28},
thicket_def_extract={A large number of patents containing overlapping claims which cover the same product are often referred to as a "patent thicket"},
tags={Kumar case, prior art, patentability},
filename={Baluch Radomsky Maebius (2005) - In Re Kumar The First Nanotech Patent Case In The Federal Circuit.pdf}
}
@article{baron2010strategic,
title={Strategic inputs into patent pools},
author={Baron, J. and Delcamp, H.},
journal={Cerna working paper},
year={2010},
abstract={This article explores what factors determine the decision of a patent pool to accept new inputs. We propose a dynamic analysis of 1337 U.S. patent inputs into 7 important pools. This analysis highlights a trade-off between firm and patent characteristics as the determinants of inclusion of patents into pools. For instance we prove that firms already member of the pool or holding large patent portfolios are able to include lower quality patents. These findings can be explained both by bargaining power and information asymmetry. In particular, as measured by a new indicator, insiders and firms practicing the technology file patents that are better aligned with the criteria of essentiality.},
discipline={Econ},
research_type={Empirical, Econometric Model},
industry={ICT},
thicket_stance={Pro},
thicket_stance_extract={One aspect of this patent proliferation is the « patent thicket » problem5. 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.},
thicket_def={References shapiro, quotes shapiro},
thicket_def_extract={The creator of this term defines the patent thicket as « a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology. » (Shapiro, 2001)..},
tags={patent pools, inputs, theory on pool patent inputs},
filename={Baron Delcamp (2010) - Strategic Inputs Into Patent Pools.pdf}
}
@inproceedings{baron2011patent,
title={Patent Pools and Patent Inflation},
author={Baron, J. and Pohlmann, T.},
booktitle={Conference Proceedings: 4th ZEW Conference on the Economics of Innovation and Patenting},
year={2011},
abstract={This article provides empirical evidence that patent pools contribute to the patent inflation around technological standards. Building upon theoretical propositions drawn from Dequiedt and Versaevel (2007) and a database of 64.619 declarations of essential patents to major international Standard Developing Organizations (SDO), we investigate how patent pools influence the number of patents on a standard over time. While the high number of patents in ICT technologies is increasingly recognized as hampering the implementation of standards, this is the first thorough empirical analysis of the driving factors of this patent inflation. We control for a wide array of factors relating to standardization and the technological field to isolate the incremental effect of patent pools. We find that patent pools increase the number of essential patents especially through patent races in view of patent pool creation. To a lower extent, we also find evidence for opportunistic patent introductions into existing patent pools.},
discipline={Econ},
research_type={Theoretical, Empirical, Econometric},
industry={ICT},
thicket_stance={Pro},
thicket_stance_extract={In view of these benefits, patent pools are seen as indispensable instruments in cutting through the patent thickets in ICT.},
thicket_def={Refs Shpiro},
thicket_def_extract={Patent pools are seen as a potential solution to inefficiencies resulting from dense “thickets” of overlapping patents (Shapiro, 2001).},
tags={patents losing quality as more are being added to pools, uncertainty about pools ability to nurture R&D},
filename={Baron Pohlmann (2011) - Patent Pools And Patent Inflation.pdf}
}
@article{barpujari2010patent,
title={The patent regime and nanotechnology: issues and challenges},
author={Barpujari, I.},
journal={Journal of Intellectual Property Rights},
volume={15},
number={3},
pages={206--213},
year={2010},
abstract={The emergent field of nanotechnology (NT) is currently very active worldwide with respect to intellectual property rights (IPR), especially patents, with both developed and developing countries joining in the nano-patents race. With the emergence of any new technology, nanotechnology creates opportunities as well as challenges in adapting the patent regime to its particular context. There is some consensus that patenting NT innovations poses more porblems than other technologies, owing to their multi-disciplinary character, cross-sectoral applications, broad claims as well as difficulties in fulfilling the patentability criteria of novelty, non-obviousness and industrial application. This is aggravated by a lack of standardized terminology which impedes easy identification of nano-patents and also teh fac that patent offices may not be well-equipped to handle nanotechnology. These problems are likely to be compounded for developing and least developed countries, which irrespective of their state of technological advancement, and capacity of the domestic regime, are obliged to confed IPR in the new technology. This paper seeks to examine the challenges which patenting of NT entails for the patent regimes of nations and how these could be addressed. it relies on a study of the patent regimes and case laws of other countries, namely, the United States to draw lessons for India. The low volume of NT patent applications and grants at the Indian Patent office and lack of Indian case laws on teh subject make the discussion anticipatory and suggestive in nature. The paper finally arrives at certain recommendations, to help reconcile the need to incentivize innovation in the new technology, with the imperative of ensuring that the public interest is served and access to the patented knowledge is not hindered.},
discipline={Policy Report},
research_type={Discussion},
industry={Nanotechnology},
thicket_stance={Weak Pro},
thicket_stance_extract={The patent thicket like situation in nanotechnology created as a result of many broad, building block patents, could seriously impede developing country researchers from engaging in research in nanotechnology},
thicket_def={def27},
thicket_def_extract={When holders of such broad patents refuse to license their patents or license these on exclusive basis or at prohibitive prices or with restrictive conditions, it leads to the growth of patent thickets impeding downstream research in nanotechnology. The existence of a high number of such patents with broad and sometimes, overlapping claims adds to the problem of thickets and leads to the fragmentation of the patent landscape.},
tags={problems of patentability, special categories for nanotech, problems with too many restrictions on patent quality.},
filename={Barpujari (2010) - The Patent Regime And Nanotechnology Issues And Challenges.pdf}
}
@article{bawa2007nanotechnology,
title={Nanotechnology Patent Proliferation and the Crisis at the US Patent Office},
author={Bawa, R.},
journal={Alb. LJ Sci. \& Tech.},
volume={17},
pages={699},
year={2007},
abstract={There is enormous excitement and expectation regarding nanotechnology's potential impact. However, securing valid and defensible patent protection will be critical here. Although early forecasts for nanotechnology commercialization are encouraging, there are bottlenecks as well. One of the major hurdles is an emerging thicket of patent claims, resulting primarily from patent proliferation, but also because of issuance of surprisingly broad patents by the U.S. Patent and Trademark Office (PTO). Adding to this confusion is the fact taht the U.S. National Nanotechnology Initiative's widely-cited definition of nanotechnology is inaccurate and irrelevant. This has also resulted in the PTO's flawed nanotechnology patent classification system. All of this is creating a chaotic, tangled patent landscape in vairous sectors of nanotechnology (e.g., nanoelectronics and nanomedicine) in which competing players are unsure as to the validity and enforceability of numerous issued patents. If this trend continues, it could stifle competition, limit access to some inventions and simply grind commercialization efforts to a halt. Therefore, reforms are urgently needed at the PTO to address problems ranging from poor patent quality and questionable examiniation practices to iinadequate search capabilities, rising attrition, poor employee morale, and a skyrocketing patent application backlog. Only a robust patent system will stimulate the development of commercially viable nanotechnology products.},
discipline={Policy Report},
research_type={Theory, Basic Facts about the industry },
industry={Nanotechnology},
thicket_stance={Pro},
thicket_stance_extract={Therefore, if the current dense patent landscape becomes more entangled and the patent thicket problem worsens, it may prove to be the major bottleneck to viable commercialization, negatively impacting the entire nanotechnology revolution. For investors, competing in this high-stakes patent game may prove too costly},
thicket_def={refs, quotes shapiro},
thicket_def_extract={Patent thickets are broadly defined in acadmeic discourse as "a 'dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.'"... Such patent thickets, a result of multiple blocking patents, naturally discourage and stifle innovation...},
tags={too many rightsholders, cross-licensing, enforceability of patents, issues with patents in nanotechnology},
filename={Bawa (2007) - Nanotechnology Patent Proliferation And The Crisis At The Us Patent Office.pdf}
}
@article{bessen2003patent,
title={Patent thickets: Strategic patenting of complex technologies},
author={Bessen, J.},
journal={Available at SSRN 327760},
year={2003},
abstract={Patent race models assume that an innovator wins the only patent covering a product. But when technologies are complex, this property right is defective: ownership of a product’s technology is shared, not exclusive. In that case I show that if patent standards are low, firms build “thickets” of patents, especially incumbent firms in mature industries. When they assert these patents, innovators are forced to share rents under cross-licenses, making R&D incentives sub-optimal. On the other hand, when lead time advantages are significant and patent standards are high, firms pursue strategies of “mutual non-aggression.” Then R&D incentives are stronger, even optimal.},
discipline={Econ},
research_type={Theory, Mathematical},
industry={General, ICT},
thicket_stance={Pro},
thicket_stance_extract={This paper argues that patent thickets can reduce R&D incentives even when there are no transaction costs, holdup or vertical monopoly problems.},
thicket_def={def29},
thicket_def_extract={The problem Baker describes is often called a “patent thicket.” 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).},
tags={low innovation incentives, lack of lead time advantages, subsidize losers of innovation races},
filename={Bessen (2003) - Patent Thickets Strategic Patenting Of Complex Technologies.pdf}
}
@article{calderini2006standardisation,
title={Standardisation in the ICT sector: The (complex) interface between antitrust and intellectual property},
author={Calderini, M. and Giannaccari, A.},
journal={Econ. Innov. New Techn.},
volume={15},
number={6},
pages={543--567},
year={2006},
publisher={Taylor \& Francis},
abstract={This article investigates the issue of standardisation in the ICT sector, analysing the most relevant aspects concerning intellectual property rights and anticompetitive strategies that can arise in standard setting organisations. The strategic dimension of this activity is also scrutinised, highlighting the different approaches followed by the United States and by the European Union. In this respect, after underlining the benefits of processes not lead by public structures, the article describes the fundamental role of internal regulations, which are necessary both for the purpose of having a sound process, and also reducing the risk of collusion and other anticompetitive conducts among members.},
discipline={Econ, Policy},
research_type={Discussion},
industry={ICT},
thicket_stance={Pro},
thicket_stance_extract={Obviously, this frequently results in high monetary and transaction costs. The entity of such costs is often so great as to discourage innovative activity in the downstream phases of the innovation process... Contrarily, in the presence of cumulative and systemic innovative activities, there are reasons to believe that too strict intellectual property rights would lead to perverse effects on innovative activity within the industry.},
thicket_def={refs shapiro},
thicket_def_extract={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.},
tags={SSO, IP Rights, Definition of SSOs},
filename={Calderini Giannaccari (2006) - Standardisation In The Ict Sector.pdf}
}
@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, Centre for Research on Innovation and Internationalisation, Universita'Bocconi, Working Paper},
volume={158},
year={2004},
abstract={The paper empirically investigates the phenomenon of patent litigation through the analysis of the all population of European patents’ opposition cases in the telecommunication industry. We recover the complete legal history of each dispute and the patent portfolios of the firms involved. We suggest that in an industry characterised by strong technological complementarities the distribution of patent rights may induce situations of mutual hold-up among innovators. The risk of retaliation through counter- suits represents a credible threat that can eventually favour the instauration of collusive behaviours. Our results confirm this hypothesis, since the occurrence of patent oppositions among large incumbents is significantly lower than industry average.},
discipline={Econ},
research_type={Theory, summary statistics},
industry={Telecommunications, ICT},
thicket_stance={n/a},
thicket_stance_extract={n/a},
thicket_def={n/a},
thicket_def_extract={n/a},
tags={patent portfolios, strategic use of patents, retaliation risk},
filename={Calderini Scellato (2004) - Intellectual Property Rights As Strategic Assets.pdf}
}
@article{carrier2002antitrust,
title={Why Antitrust Should Defer to the Intellectual Property Rules of Standard-Setting Organizations: A Commentary on Teece \& (and) Sherry},
author={Carrier, M.A.},
journal={Minn. L. Rev.},
volume={87},
pages={2017-2034},
year={2002},
abstract={},
discipline={Law},
research_type={Discussion},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={The clearing of patent thickets and fostering of cumulative innovation and new markets through SSOs offers perhaps the most powerful benefits for competition and innovation.},
thicket_def={},
thicket_def_extract={},
tags={SSOs, Role of Antitrust},
filename={Carrier (2002) - Why Antitrust Should Defer To The Intellectual Property Rules Of SSOs.pdf}
}
@article{carrier2012roadmap,
title={A Roadmap to the Smartphone Patent Wars and FRAND Licensing},
author={Carrier, M.},
journal={CPI Antitrust Chronicle},
volume={2},
year={2012},
abstract={The smartphone industry today is characterized by a thicket of patents and wars based on those patents. Every day brings a new lawsuit or development between Apple, HTC, Microsoft, Motorola Mobility (“MMI”), Nokia, and Samsung. The lawsuits span numerous courts and several continents. And they often pit Apple or Microsoft on one side and manufacturers of Google’s Android operating system—HTC, MMI, and Samsung—on the other.},
discipline={Law},
research_type={Discussion},
industry={ICT},
thicket_stance={Neutral},
thicket_stance_extract={The smartphone industry today is characterized by a thicket of patents and wars based on those patents.},
thicket_def={},
thicket_def_extract={},
tags={SSOs, FRAND, Smartphone, Antitrust},
filename={Carrier (2012) - A Roadmap To The Smartphone Patent Wars And Frand Licensing.pdf}
}
@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},
abstract={Patent protection has gradually expanded over time, and many patents of suspect value are routinely granted owing to the lack of rigorous scrutiny in the examination process. This has resulted in the recent explosion of patents granted and potentially creates a "patent thicket" that hinders future innovation. I investigate the question of whether the litigation process can be relied on to restore competition when an imperfect market outcome is sustained through patents of suspect value. The analysis undertaken in the paper points out the serious lack of private incentives to eliminate patents of suspect value through litigation. I also discuss potential measures to restore the soundness of the patent system.},
discipline={Econ},
research_type={Theory},
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={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).},
thicket_def={refs shapiro, gallini, bessen},
thicket_def_extract={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).},
tags={patents of suspect value, litigation issues, substitute patents, exclusive rights to first invalidator},
filename={Choi (2005) - Live And Let Live A Tale Of Weak Patents.pdf}
}
@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},
abstract={Based on a survey questionnaire administered to 1478 R&D labs in the U.S. manufacturing sector in 1994, we find that firms typically protect the profits due to invention with a range of mechanisms, including patents, secrecy, lead time advantages and the use of marketing complementary marketing and manufacturing capabilities Of these mechanisms, however, patents tend to be the least emphasized by firms in the majority of manufacturing industries, and secrecy and lead time tend to be emphasized most heavily.A comparison of our results with the earlier survey findings of Levin et al.[1987]sugest that patents may be relied upon somewhat more heavily by larger firms now than in the early 1980s.For the protection of product innovations, secrecy now appears to be much more heavily employed across most industries than previously Our results on the motives to patent indicate that firms patent for reasons that often extend beyond directly profiting from a patented innovation through either its comercialization or licensing.In addition to the prevention of copying,the most prominent motives for patenting include the prevention of rivals from patenting related inventions (i.e.,"patent blocking"),the use of patents in negotiations and the prevention of suits. We find that firms commonly patent for different reasons in "discrete" product industries, such as chemicals, versus "complex" product industries, such as telecommunications equipment or semiconductors. In the former, firms appear to use their patents commonly to block the development of substitutes by rivals, and in the later, firms are much more likely to use patents to force rivals into negotiations.},
discipline={Econ},
research_type={Empirical},
industry={General, Manufacturing},
thicket_stance={Neutral},
thicket_stance_extract={Our data do not show the degree to which patent portfolio races distort the nature of R&D incentives or lead to socially wasteful 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.},
thicket_def={def30},
thicket_def_extract={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.},
tags={patenting strategy, patent portfolio races},
filename={Cohen Nelson Walsh (2000) - Protecting Their Intellectual Assets.pdf}
}
@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},
abstract={Numerous scholars have expressed concern over the growing "privatization of the scientific commons" represented by the growth in academic patenting. Even before the Bayh-Dole Act and the pervasive patenting of academic science, how ever, there was an earlier concern over the extent to which the drive for recognition among scientists and competition for priority and associated rewards also limited contributions to the scientific commons. This suggests the utility of a more open-ended consideration of the different factors-not just patenting-that might affect knowledge flows across scientists. In this paper, we use a simple economic perspective that emphasizes the benefits and costs of excluding others from research results and analyze the empirical evidence on exclusion in biomedical research. We suggest, first, that one might distinguish between legal and practical (i.e., lower cost) excludability- and that practical excludability, at least in the world of academic research, may have little to do with patents. At the same time, however, we suggest that excludability may indeed be a real concern for academic and, particularly, biom?dical research, but to understand where and how it occurs, we need to look beyond patents to consider additional ways in which flows of knowledge and other inputs into research may be restricted (including secrecy and control over materials). We do find restrictions imposed on the flow of information and materials across biom?dical researchers. While patents play some role, they are not determinative. What appears to matter are both academic and commercial incentives and effective excludability. Exclusion is rarely associated with the existence of a patent in academic settings, but is more readily achieved through secrecy or not sharing research materials.},
discipline={Econ},
research_type={Empirical},
industry={Biomedical},
thicket_stance={Weak Pro},
thicket_stance_extract={Even if patents do not stop ongoing research, the very prospect of a thicket or restricted access may dissuade researchers from choosing particular projects and limit lines of attack in that way.},
thicket_def={Refs Shapiro, Heller and Eisenberg},
thicket_def_extract={Although their focus is largely on commercial 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},
tags={incenties, sharing of information and knowledge, exclusionary behavior},
filename={Cohen Walsh (2008) - Real Impediments To Academic Biomedical Research.pdf}
}
@misc{competition2008pharmaceutical,
title={Pharmaceutical Sector Inquiry-Preliminary Report},
author={Competition, DG},
year={2008},
abstract={},
discipline={Policy Report},
research_type={Empirical, Data Study of Large Originator Companies},
industry={Pharmaceutical},
thicket_stance={Pro},
thicket_stance_extract={One commonly applied strategy is filing numerous patents for the same medicine (forming so called "patent clusters" or "patent thickets"). Documents gathered in the course of the inquiry confirm that an important objective of this strategy is to delay or block the market entry of generic medicines. In this respect the inquiry finds that individual blockbuster medicines are protected by up to 1,300 patents and/or pending patent applications EU-wide and that, as mentioned above, certain patent filings occur very late in the life cycle of a medicine...In their submissions, both generic and originator companies support the creation of a single Community patent to amend the current costly and burdensome system consisting of a bundle of national patents.},
thicket_def={},
thicket_def_extract={},
tags={Pharmaceutical Generics and Originators, Patent Filings, Industry Analysis, European},
filename={Competition (2008) - Pharmaceutical Sector Inquiry Preliminary Report.pdf}
}
@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},
abstract={},
discipline={Policy},
research_type={Empirical, Industry Data},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={To meet the challenges that the governance of the European patent system is facing because of the emergence of patent thickets the increasing number of patent applications and patenting for defensive and strategic reasons, three options were recommended. These were: (i) enhancing the patent awareness within the European Parliament; (ii) establishing a European Parliament Standing Committee on Patents, which should be linked with an External Advisory Body composed by experts, practitioners and stakeholders; and (iii) enhancing patent awareness within the Commission.},
thicket_def={def31},
thicket_def_extract={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.},
tags={reforming patent thickets in europe, defensive use of thickets},
filename={Cowin (2007) - Policy Options For The Improvement Of The European Patent System.pdf}
}
@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},
abstract={This work uses changes in intellectual property rights regimes for plants as a way to identify the value and cost to industries and society of the different components of property rights: exclusivity, research exemptions, and revelation of research outcomes. A simple model is described that can account for these differences in company choice of intellectual property versus keeping trade secrets. The data used include observations on multiple crop types over a span of 20+ years across 3 different intellectual property rights regimes. Differences in the replicability of crop types are shown to cause intellectual property rights to have diverse sets of incentives for research and property rights claims.},
discipline={Econ},
research_type={Theory, Empirical},
industry={Agriculture},
thicket_stance={Weak Pro},
thicket_stance_extract={A 2002 court ruling in Madey v. Duke University greatly contracts the research exemption rules on US patents especially for universities making this patent thicket potentially more of a problem.},
thicket_def={},
thicket_def_extract={A number of observers of patenting, particularly in the biological sciences, have suggested that patenting rules and overlapping claims have generated a "patent thicket" that has impeded innovation and made the R&D process more costly (Rai, 2001; Rai, 1999). Rai (2001) for example, argues that broad patents especially on upstream platform technologies represent a threat to competition and the cumulative process of innovation in the biopharmaceutical industry.},
tags={firm strategy, utility patents, revelation loss, IPR, trade secrets},
filename={Dhar Foltz (2007) - The Impact Of Intellectual Property Rights In The Plant And Seed Industry.pdf}
}
@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},
abstract={Discusses how to promote the development of nanotechnology by overcoming problems with the patent system. Considers how patent thickets and patent trolls may discourage innovative work. Describes the advantages of licensing patents by means of a patent pool. Examines to what extent inventors can benefit from the experience of the open-source software movement.},
discipline={Law},
research_type={Discussion},
industry={Nanotechnology},
thicket_stance={Weak Pro},
thicket_stance_extract={In most cases this will deter many smaller startups and research centres from attempting to traverse the patent thicket. Also broad, overlapping and conflicting thickets are likely to lead to lengthy and costly patent battles.},
thicket_def={def30},
thicket_def_extract={When multiple organisations each own individual patents that are collectively necessary for a particular technology, their competing intellectual property rights form a "patent thicket". (cites: Gavin Clarkson and David DeKorte, "The Problem of Patent Thickets in Convergent Technologies" [2006] Ann. N.Y. Acad. Sci. 1093, 181.)},
tags={patent pools, open sourcing},
filename={DSilva (2009) - Pools Thickets And Open Source Nanotechnology.pdf}
}
@article{eisenmann2008managing,
title = {Managing Proprietary and Shared Platforms},
author = {Eisenmann, Thomas R.},
journal = {California Management Review},
volume = {50},
number = {4},
pages = {pp. 31-53},
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.},
year = {2008},
publisher = {University of California Press},
copyright = {Copyright © 2008 University of California Press},
discipline={Management},
research_type={Discussion},
industry={Television},
thicket_stance={Pro},
thicket_stance_extract={A second type of IP-based claim can occur when shared platforms rely on many different patented technologies, each of which has no obvious substitute. Firms may find themselves in a patent "thicket," in which several parties are able to derail a shared platform by threatening to withhold necessary contributions.12 Each firm can issue an ultimatum, demanding a large share of the platform's added value},
thicket_def={Refs Shapiro},
thicket_def_extract={A second type of IP-based claim can occur when shared platforms rely on many different patented technologies, each of which has no obvious substitute. Firms may find themselves in a patent "thicket," in which several parties are able to derail a shared platform by threatening to withhold necessary contributions.12 Each firm can issue an ultimatum, demanding a large share of the platform's added value},
tags={Shared Platform, Licensing},
filename={Eisenmann (2008) - Managing Proprietary And Shared Platforms.pdf}
}
@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},
abstract={As recently as three months ago, it still all seemed so simple. Shinya Yamanaka, whose team at the University of Kyoto in Japan is generally acknowledged by the research community as the first to successfully reprogram differentiated cells into iPS cells1, was also the sole patent holder for the technology. But as with any other patent land grab, iPS cell intellectual property (IP) is beginning to look less and less like a one-horse race. Two other recently issued patents in the United States and United Kingdom (Table 1), each awarded to a different inventor with a potentially strong claim to priority, now stand alongside Yamanaka’s patent, which was exclusively issued in Japan. With this newly tangled IP landscape, questions are arising about the possible emergence of a patent thicket. On the other hand, early signs suggest that the iPS cell marketplace may evolve to provide ample room for many different contenders. Whereas for now companies are focused primarily on iPS cell cultivation as a means for deriving clinically relevant mature cells, companies may take advantage of recent data on transdifferentiation that suggest that this pluripotent midpoint may even be dispensable in the future2.},
discipline={Biology},
research_type={Discussion},
industry={Stem Cells, Biology},
thicket_stance={Weak Pro},
thicket_stance_extract={As recently as three months ago, it still all seemed so simple. Shinya Yamanaka, whose team at the University of Kyoto in Japan is generally acknowledged by the research community as the first to successfully reprogram differentiated cells into iPS cells1, was also the sole patent holder for the technology. But as with any other patent land grab, iPS cell intellectual property (IP) is beginning to look less and less like a one-horse race. Two other recently issued patents in the United States and United Kingdom (Table 1), each awarded to a different inventor with a potentially strong claim to priority, now stand alongside Yamanaka’s patent, which was exclusively issued in Japan. With this newly tangled IP landscape, questions are arising about the possible emergence of a patent thicket.},
thicket_def={},
thicket_def_extract={},
tags={iPS industry, intercountry patents, international applications},
filename={Eisenstein (2010) - Up For Grabs.pdf}
}
@article{feldman2004open,
title={The Open Source Biotechnology Movement: Is It Patent Misuse?},
author={Feldman, R.},
journal={Minnesota Journal of Law, Science \& Technology},
volume={6},
year={2004},
discipline={Law},
research_type={Theory, Discussion},
industry={Biotechnology},
thicket_stance={Assumed Pro},
thicket_stance_extract={Scholars have used the term “patent thicket” to describe the problem of multiple overlapping rights that can hamper innovation by creating transaction barriers. Most scholars and those reporting from the field agree that large numbers of rights hamper research and innovation, particularly in the biotech field.21 One scholar, however, has challenged the notion.22 John Walsh argues that firms simply work around the problem of multiple rights for example, by moving offshore beyond the reach of the patent rights, inventing around the rights, and using public research tools.23 In particular, Walsh argues that academic researchers routinely ignore rights structures and that patent holders passively acquiesce.},
thicket_def={refs shapiro, lemley},
thicket_def_extract={Scholars have used the term “patent thicket” to describe the problem of multiple overlapping rights that can hamper innovation by creating transaction barriers. Most scholars and those reporting from the field agree that large numbers of rights hamper research and innovation, particularly in the biotech field.21 One scholar, however, has challenged the notion.22 John Walsh argues that firms simply work around the problem of multiple rights for example, by moving offshore beyond the reach of the patent rights, inventing around the rights, and using public research tools.23 In particular, Walsh argues that academic researchers routinely ignore rights structures and that patent holders passively acquiesce.},
tags={open source biotechnology, academic research tools},
filename={Feldman (2004) - The Open Source Biotechnology Movement Is It Patent Misuse.pdf}
}
@article{fischer2011patent,
title={Patent Trolls on Markets for Technology-An Empirical Analysis of Trolls' Patent Acquisitions},
author={Fischer, T. and Henkel, J.},
journal={Available at SSRN 1523102},
year={2011},
abstract={Patent trolls appropriate profits from innovation solely by enforcing patents against infringers. They are often characterized as relying on low-quality patents, an assessment that, if correct, would imply that eradicating such patents would effectively terminate the troll business. In this paper, we shed light on this issue by empirically analyzing trolls’ patent acquisitions. We draw on a unique dataset of 565 patents acquired by known patent trolls between 1997 and 2007, which we compare to 1,130 patents acquired by practicing firms. Our findings regarding patent characteristics support recent theoretical propositions about the troll business model. Trolls focus on patents that have a broad scope and that lie in patent thickets. Surprisingly, and contrary to common belief, we find that troll patents are of significantly higher quality than those in the control group. This result implies that elevating minimum patent quality will not put an end to the patent troll business, and suggests that it is sustainable in the long run. Furthermore, we discuss the fact that trolls are peculiar players on markets for technology insofar as they are solely interested in the exclusion right, not in the underlying knowledge. We posit that transactions involving patent trolls may only be the tip of the iceberg of “patent-only” transactions, a conjecture with strong implications for the efficiency of markets for technologies. Managerial and policy implications are discussed.},
discipline={Econ},
research_type={Empirical, Model},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={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.},
thicket_def={Refs Shapiro},
thicket_def_extract={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).},
tags={patent trolls, patent quality, licensing, business model},
filename={Fischer Henkel (2011) - Patent Trolls On Markets For Technology.pdf}
}
@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},
abstract={In many industries broad cross-license agreements are considered a useful method to obtain freedom to operate and to avoid patent litigation. In this paper I study the previously neglected dynamic trade-off between litigating and cross-licensing that firms face to protect their intellectual property. I present a model of bargaining with learning in which firms’ decisions to litigate or crosslicense depend on their investments in technology specific assets. In particular the model predicts that where firms’ sunk costs are higher, their incentive to litigate and delay a cross-license agreement is lower. In addition, the bargaining game shows how firms with intermediate values of asset specificity tend to engage in inefficient "persuasive litigation". Using a novel dataset on the US semiconductor industry I obtain empirical results consistent with those suggested by the model. Combining model intuition with some empirical figures, I evaluate possible effects of the currently debated patent litigation reform.},
discipline={Econ},
research_type={Theory, Empirical, Econometric Model},
industry={General, Semiconductors},
thicket_stance={Assumed Pro},
thicket_stance_extract={In particular, Shapiro (2001) has argued that a "patent thicket" has appeared that renders it difficult 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.},
thicket_def={refs shapiro},
thicket_def_extract={During the past few years various scholars1 and industry representatives have drawn attention to specific inefficiencies generated by the patent system in several industries. In particular, Shapiro (2001) has argued that a "patent thicket" has appeared that renders it difficult to commercialize a new technology},
tags={Cross-licensing},
filename={Galasso (2007) - Broad Cross License Agreements And Persuasive Patent Litigation.pdf}
}
@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},
abstract={},
discipline={Management, Law},
research_type={Discussion},
industry={Biotechnology},
thicket_stance={Weak Pro},
thicket_stance_extract={The strength of the anti‐commons thesis rests on two assumptions that are very difficult to test: (1) that developing commercial biomedical products requires access to many different IP rights and (2) that negotiating access with different patent owners is prohibitively difficult and costly. On the first point, the number of biotechnology patents has certainly increased dramatically over the last decade, although by itself that does not necessarily imply greater fragmentation. Walsh et al. (2003) report from interviews with biotechnology industry IP practitioners that preliminary freedom to operate searches can sometimes find hundreds of patents relevant to a candidate product but that on closer inspection “there may be, in a complicated case, about 6‐12 that they have to seriously address, but that more typically the number was zero.” Enough anecdotal evidence exists, however, to suggest that the fragmentation of rights in biotechnology is sometimes a serious concern.},
thicket_def={Def32},
thicket_def_extract={The IP rights situation described above was arguably a classical case of a patent thicket with fragmented IP rights and uncertainty about technology ownership},
tags={patent pools, cross-licensing},
filename={Gaule (2006) - Towards Patent Pools In Biotechnology.pdf}
}
@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},
abstract={},
discipline={Law},
research_type={Discussion, Equations},
industry={General},
thicket_stance={},
thicket_stance_extract={},
thicket_def={},
thicket_def_extract={},
tags={Antitrust, patent pools, competition},
filename={Gilbert (2004) - Antitrust For Patent Pools A Century Of Policy Evolution.pdf}
}
@article{gilbert2010ties,
title={Ties That Bind: Policies to Promote (Good) Patent Pools},
author={Gilbert, R.J.},
journal={Antitrust Law Journal},
year={2010},
abstract={},
discipline={Law},
research_type={Discussion},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={Patent thickets are common to many high-technology industries in which the manufacture, use, or sale of a device or process may require rights to hundreds of patents.7 Overlapping patent rights raise numerous potential economic problems. Transaction costs of licensing can be high because licensees must identify, search out, and negotiate with numerous separate licensors. Litigation risks can be high because an incomplete portfolio of patent licenses can expose a firm to potentially large infringement damages.},
thicket_def={Refs Shapiro},
thicket_def_extract={A “patent thicket,” in which many independent patent holders have rights that cover a technology, is one example of the anticommons.},
tags={Patent Pools},
filename={Gilbert (2010) - Ties That Bind Policies To Promote Good Patent Pools.pdf}
}
@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},
abstract={},
discipline={Biology},
research_type={Policy, Discussion, Industry Statistics},
industry={Biology, Stem Cell},
thicket_stance={Assumed Pro},
thicket_stance_extract={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},
thicket_def={refs heller eisenberg, refs eisenberg},
thicket_def_extract={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},
tags={Incentives, Patent Proliferation, License Agreements, Patent Pool, Open Source, },
filename={Goozner (2006) - Innovation In Biomedicine.pdf}
}
@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},
abstract={Within the biotechnology sector of the US economy, aggressive patenting, i.e. preemptive patenting, of human genomic research results are practiced by private-sector firms, the academic community, and non-profit organizations. Preemptive patenting has traditionally been practiced by the private sector as a competitive strategy, being driven by economic considerations. Recently, academics and patients/consumers have instituted preemptive patenting strategies as a way of ensuring access to genomic sequences for, respectively, research study purposes and life-enhancing access to diagnostic gene testing. To reduce this non-economic motivation for preemptive patenting by these nontraditional competitors, it is recommended that the biotechnology industry initiate a strategy of its own which will: (1) relax firm patent enforcement of genomic sequences that are essential for academic researchers to use in their studies; and (2) provide for a ‘means-test’ approach that incorporates a ‘staggered’ fee-schedule for academic researchers to charge their subjects, i.e. patients, for gene tests and diagnostic results.},
discipline={Policy},
research_type={Discussion},
industry={Biotechnology},
thicket_stance={Pro},
thicket_stance_extract={To forestall imitative activity and strengthen patent rights, firms often attempt to create a ‘patent thicket,’ i.e. obtaining patents not just on one central product or process, but on a host of related products or processes [11]. Firms that try to compete with the inventing firm will find their attempts to duplicate the central product or process blocked by the inventing firm’s grip on alternative technologies. Many of the firm’s patents on related products or processes may never be used or licensed; such ‘sleeping patents’ are held only to raise the costs of entry or imitation by potential rivals.},
thicket_def={def33},
thicket_def_extract={To forestall imitative activity and strengthen patent rights, firms often attempt to create a ‘patent thicket,’ i.e. obtaining patents not just on one central product or process, but on a host of related products or processes [11].},
tags={preemptive patenting, consumer welfare, international affairs, strategic value},
filename={Hemphill (2003) - Preemptive Patenting Human Genomics And The Us Biotechnology Sector.pdf}
}
@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},
abstract={On June 8, 2005, Congressman Lamar Smith introduced H.R. 2795, the “Patent Reform Act of 2005,” aimed at improving the quality and certainty of issued patents, simplifying the patent procurement process, harmonizing U.S. law with international practice, and reining in abusive patent enforcement practices. Congress has set the legislation aside for the time being, but will likely revisit the issue again shortly. The biotechnology industry, one of the fastest growing sectors in the United States economy, strongly opposes many of the proposed reforms. This paper considers the Congressional testimonies of the Biotechnology Industry Organization (“BIO”) and other representatives of biotechnology’s interests, and finds that the industry’s adamant opposition to many of the proposals is driven largely by a belief that biotechnology patents function primarily as tools for securing investment funding, and the fear that investment in biotechnology will be adversely impacted if investors perceive that patent reform has weakened the rights of patent owners and inventors. The paper also considers how the biotechnology sector might be impacted if the proposed reforms are enacted into law, and describes some recent biotechnology cases wherein the outcome might have been different if the reforms had already been in place.},
discipline={Law, Policy Report},
research_type={Discussion, Written Theory},
industry={Biotechnology},
thicket_stance={Anti},
thicket_stance_extract={If in fact a patent thicket is significantly impeding biotechnology research and development, one might expect that organizations representing the interests of biotechnology, such as BIO, WARF, and Genentech, would be advocating for reforms that would address the problem. Indeed, the biotechnology industry has never been shy about advocating for legislative action to address its concerns.112 But instead, these groups tend to be among the most adamant defenders of the status quo and strong patent rights. One might infer from this that a patent thicket is not in fact substantially impeding biotechnology.},
thicket_def={refs Heller Eisenberg},
thicket_def_extract={Various commentators have proposed that a proliferation of patents poses a serious threat to biotechnology research by creating a patent thicket, sometimes referred to as 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},
tags={Critique on Reform Proposals, Continuation, First innovator, Injunction, },
filename={Holman (2005) - Biotechnologys Prescription For Patent Reform.pdf}
}
@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},
abstract={Patents do not always promote innovation, particularly when they restrict access to fundamental scientific discoveries and the tools of basic research. However, there are legal and policy approaches that may help to ameliorate problems associated with patenting these sorts of inventions.},
discipline={Law},
research_type={Discussion, Commentary},
industry={General, Research},
thicket_stance={Weakly Anti},
thicket_stance_extract={Although upstream patents have been widely criticized, and there are a number of cases where specific patents clearly seem to have impeded innovation, there is little objective evidence to support a conclusion that patents constitute a widespread substantial obstacle to biomedical R&D, particularly in the academic sector.},
thicket_def={Refs heller/eisenberg, rai/eisenberg},
thicket_def_extract={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)},
tags={patents of dubious quality, research use, public domain},
filename={Holman (2006) - Clearing A Path Through The Patent Thicket.pdf}
}
@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},
abstract={},
discipline={Policy},
research_type={Commentary, Discussion, Industry Statistics},
industry={Biotechnology, Genetics},
thicket_stance={Anti},
thicket_stance_extract={However, for the most part, fears expressed concerning human gene patents have not been manifested overtly in patent litigation. Human gene patent litigation invariably has involved an alleged infringer engaged in substantial commercial activities focused specifically on the single gene that is the subject of the asserted patent, the antithesis of a patent thicket scenario (14). Some have speculated that DNA microarray technology is particularly at risk of becoming entangled in a thicket (6). However, I found no instance in which a human gene patent was asserted against the manufacturer or user of microarray technology, although microarray companies have experienced substantial patent litigation involving nongene patents since the mid-1990s.},
thicket_def={refs heller eiseneberg, barton},
thicket_def_extract={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)},
tags={Gene patent litigation, frequency of litigation},
filename={Holman (2008) - Trends In Human Gene Patent Litigation.pdf}
}
@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},
abstract={},
discipline={Law},
research_type={Commentary, Discussion},
industry={Biology, Genetics},
thicket_stance={Anti},
thicket_stance_extract={There is also good reason to think that even the claims most likely to be infringed, reciting short fragments of genomic DNA, or broadly defined methods of testing for genetic variation, would not necessarily be infringed by all forms of WGS, particularly next-generation technologies that do not amplify genes. A company that provides WGS services, but that leaves the job of analyzing the sequence data for clinically important variations to others, would be particularly unlikely to be found liable for infringing any of these gene patents.},
thicket_def={},
thicket_def_extract={},
tags={Whole Genome Sequencing, Infringement},
filename={Holman (2012) - Debunking The Myth That Whole Genome Sequencing Infringes Thousands Of Gene Patents.pdf}
}
@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},
abstract={As a pioneering, one-stop technology platform licensing enterprise, MPEG LA is presented as a template for patent pooling. By providing the marketplace with fair, reasonable, non- discriminatory 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.},
discipline={Law},
research_type={Discussion},
industry={Technology, Biotechnology, Pharmaceutical},
thicket_stance={Pro},
thicket_stance_extract={In addition, there has been enormous growth in the number of issued patents containing progressively narrower claims. Therefore, licences under multiple patents owned by multiple patent owners are required. In the absence of a patent pool, the transaction costs required to identify the blocking patents and conclude negotiations for a licence under each of them (assuming the patent owners are even willing to enter into licence negotiations), to say nothing of paying multiple royalties, are too costly for the average user – with the result that technological advancement, adoption and use are impeded; freedom of technological movement is restricted; the potential for conflict is increased; and traditional one-on-one licensing arrangements fall short.},
thicket_def={refs shapiro},
thicket_def_extract={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.},
tags={technology platform licensing, standards pools},
filename={Horn (2003) - Alternative Approaches To IP Management.pdf}
}
@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},
abstract={In the 1990s, patenting schemes changed in many respects: up- coming new technologies accelerated the shift from price competition towards competition based on technical inventions, a worldwide surge in patenting took place, and the ‘patent thicket’ arose as a conse- quence of strategic patenting. This study analyzes the importance of patenting versus secrecy as an effective alternative to protect intellec- tual property in the inventions’ market phase. The sales figure with new products is introduced as a new measure for the importance of IP protection tools among product innovating firms. Focusing on the German manufacturing in 2000, it turns out that patents are impor- tant to protect intellectual property in the market, whereas secrecy seems to be rather important for early-stage inventions.},
discipline={Econ},
research_type={empirical, econometric model},
industry={General, Manufacturing},
thicket_stance={neutral},
thicket_stance_extract={A further development is that patents gained in value by their ability to be linked with other patents, which encourages patenting of marginal inven- tions. The resulting complex network of single patents that bears many legal pitfalls for patent applicants was given the name ‘patent thicket’ (Shapiro, 2001). These developments put into question an increased number of patents motivated by an increased need for IP protection and hint at the strategic value of patents to have driven the patent surge. To summarize: 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.},
thicket_def={refs shapiro},
thicket_def_extract={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.},
tags={patenting secrecy, firm strategy},
filename={Hussinger (2006) - Is Silence Golden Patents Versus Secrecy At The Firm Level.pdf}
}
@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},
abstract={A patent landscape analysis of 22 common genetic diagnostic tests shows substantially fewer claims on genes per se than initially suggested but raises questions of legal uncertainty as to the claims’ scope.},
discipline={Biology, Law},
research_type={Empirical study, Industry Statistics},
industry={Biology, Genetics},
thicket_stance={Anti},
thicket_stance_extract={With respect to genes, 25% of the identified patents, filed by different applicants, claim a human gene, suggesting the possibility of the existence of a patent thicket. In contrast to this relatively high number of gene claims, only 3% of these gene claims can be classified as occupying a blocking position. Therefore, a hindering patent thicket cannot be demonstrated.},
thicket_def={def33},
thicket_def_extract={First, is a patent thicket, defined as many blocking patents from many different owners, emerging in the genetic diagnostic sector?},
tags={genetic diagnostic testing, patent proliferation, research sector},
filename={Huys (2009) - Legal Uncertainty In The Area Of Genetic Diagnostic Testing.pdf}
}
@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},
abstract={},
discipline={Law},
research_type={Written Theory},
industry={Biology},
thicket_stance={Pro},
thicket_stance_extract={But how likely is it that a patent thicket for biological research will develop? According to the NIH working group on research tools, a thicket of research tool patents has already begun to form...The cumulative result of these actions is the initial formation of a patent thicket for research tools. The negative consequence of an extensive research tool patent thicket and its accompanying licensing scheme is the potential chilling effect on innovation.},
thicket_def={refs shapiro},
thicket_def_extract={Under this metaphor, a patent thicket arises when each block is granted separate yet concurrent exclusivity rights. The so-called thicket is the resulting nexus of concurrent and overlapping IP rights that one must navigate in order to practice any evolutionary form of science.},
tags={Patent pool, antitrust},
filename={Iyama (2005) - The Usptos Proposal Of A Biological Research Tool Patent Pool Doesnt Hold Water.pdf}
}
@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},
abstract={},
discipline={Public, Policy},
research_type={Commentary},
industry={Pharmaceutical},
thicket_stance={Neutral},
thicket_stance_extract={Every patentee of a major invention is likely to come up with improvements and alleged improvements to his invention. By the time his main patent has expired there will be a thicket of patents intended to extend his monopoly. Some will be good, others bad. It is in the nature of the patent system itself that this should happen and it has always happened. There is nothing new about “evergreening”, only the name and the implication which flows from the word, that there is something sinister going on and that it has only recently been discovered.},
thicket_def={},
thicket_def_extract={},
tags={competition},
filename={Jacob (2009) - Patents And Pharmaceuticals.pdf}
}
@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},
abstract={In this paper, we identify three policy instruments governments have at their disposal to affect the power of patent rights to prevent imitation: the size of the inventive step used to make the patent granting decision, the rigour of the patent examination process and the predisposition of the courts to affirm the patent office's decision. We develop a simple framework to analyse the effects of changing these policy instruments on ex ante investment in invention in the light of recent concerns about the potential effects of socially undesirable patents.},
discipline={Econ},
research_type={Written Theory},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={The patent owner may do this by creating a thicket of pantents, so other parties are swamped with so much complex technical documentation that they cannot separate the chaff from the wheat. Developing patent thickets is relatively easy to do in this regime since the patent examination process is cursory...the average cost of dispute resolution will be high},
thicket_def={def35},
thicket_def_extract={The patent owner may do this by creating a thicket of pantents, so other parties are swamped with so much complex technical documentation that they cannot separate the chaff from the wheat. Developing patent thickets is relatively easy to do in this regime since the patent examination process is cursory...the average cost of dispute resolution will be high},
tags={Designing patent system},
filename={Jensen Webster (2004) - Achieving The Optimal Power Of Patent Rights.pdf}
}
@article{kato2004patent,
title={Patent pool enhances market competition},
author={Kato, A.},
journal={International Review of Law and Economics},
volume={24},
number={2},
pages={255--268},
year={2004},
publisher={Elsevier},
abstract={This article investigates a pool of substitute patents that enable firms to reduce marginal costs of production. Contrary to the general belief, it is shown that a pool of substitute patents may promote competition under certain conditions, thereby enhancing social welfare in the product market. The intuition is that when firms compete in licensing fees, resultant low licensing fees discourage firms from licensing to outside firms. This leads to fewer licensees than when a patent pool is formed.},
discipline={Econ},
research_type={Model, Theory},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={In the field of economics, patent pools are analyzed by Shapiro (2000). He considers the role of patent pools in “patent thicket,” which means that there are so many patents issued that a single new patent will likely infringe on some other patents. This situation discourages and retards research, development and commercialization.},
thicket_def={Refs Shapiro},
thicket_def_extract={In the field of economics, patent pools are analyzed by Shapiro (2000). He considers the role of patent pools in “patent thicket,” which means that there are so many patents issued that a single new patent will likely infringe on some other patents. This situation discourages and retards research, development and commercialization.},
tags={patent pools, substitute patents, welfare},
filename={Kato (2004) - Patent Pool Enhances Market Competition.pdf}
}
@article{kesselheim2005university,
title={University-based science and biotechnology products},
author={Kesselheim, A.S. and Avorn, J.},
journal={JAMA: the journal of the American Medical Association},
volume={293},
number={7},
pages={850--854},
year={2005},
publisher={Am Med Assoc},
abstract={The pharmaceutical and biotechnology industries have long relied on pat- enting as the primary means of allocating ownership and control over new discoveries. Yet, patent protection is a double-edged sword that has major implications for the future of innovation in biomedical science in the United States. Excessive “upstream” patenting of genes and molecular targets could hinder further research by creating a need for expensive and inefficient cross- licensing. However, limiting such basic science patenting could allow pri- vate entities to use the results of years of costly publicly funded research to produce and market lucrative products without compensating university- or public sector–based innovators. Academic and other nonprofit research cen- ters would, therefore, be deprived of revenue for pursuing novel therapeu- tics or other seminal research work that may not be patentable. Recent court cases illustrate the inherent conflicts in allocating ownership and control of basic biomedical discoveries. Several options exist to avoid the complex prob- lems of overlapping basic science patents while still rewarding pivotal dis- coveries and encouraging further innovation. These include establishing ba- sic science patent pools and mandating arbitration arrangements that would assign credit and royalties for biotechnology innovations that depend on prior research that was performed, financed, or both in the public sector.},
discipline={Biology},
research_type={Discussion},
industry={Biotechnology, Pharmaceutical},
thicket_stance={Weak Pro},
thicket_stance_extract={Basic investigations conducted at universities and academic medical cen- ters, usually publicly funded, often pro- duce key insights about the mecha- nisms underlying physiological function and disease states. Private corpora- tions can then commercialize these insights by designing and marketing new therapeutics or other medical tech- nologies based on them. In this chain of development, allowing patenting of each incremental innovation could risk generating a dense thicket of overlap- ping intellectual rights and thus hinder research efforts.},
thicket_def={quotes shapiro},
thicket_def_extract={Basic investigations conducted at universities and academic medical cen- ters, usually publicly funded, often pro- duce key insights about the mecha- nisms underlying physiological function and disease states. Private corpora- tions can then commercialize these insights by designing and marketing new therapeutics or other medical tech- nologies based on them. In this chain of development, allowing patenting of each incremental innovation could risk generating a dense thicket of overlap- ping intellectual rights and thus hinder research efforts.},
tags={University research, upstream patents, defining lineage of products},
filename={Kesselheim Avorn (2005) - University Based Science And Biotechnology Products.pdf}
}
@article{kim2004vertical,
title={Vertical Structure and Patent Pools},
author={Kim, S.H.},
journal={Review of Industrial Organization},
volume={25},
number={3},
pages={231--250},
year={2004},
publisher={Springer},
abstract={It is well known that patent pools can enhance efficiency by eliminating the com- plements problem. This paper investigates how the presence of vertically integrated firms affects the economic impact of a patent pool. Without a patent pool, the presence of integrated firms may either increase or decrease the final product price as there are two countervailing effects – reduced double marginalization and raising rivals’ costs. However, when there is a patent pool, vertical integration always lowers the final product price. In conclusion, the economic efficiency arguments for patent pools are enhanced when some firms are vertically integrated.},
discipline={Econ},
research_type={Theory, Mathematical},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={When distinct firms are selling inputs – all of which are required for pro- duction of the final product – they fail to internalize the effect that their royalty rates have on the demand for other inputs. This results in each patent holder setting too high a royalty rate. A ‘‘patent pool’’ has begun to attract widespread attention as a solution to both the transaction cost and com- plements problems. },
thicket_def={Refs shapiro and heller/eisenberg},
thicket_def_extract={The proliferation of fragmented and overlapping patent rights is increasingly being recognized as a serious problem; referred to as a ‘‘patent thicket’’ (or ‘‘anticommons’’ by Heller and Eisenberg, 1998). Besides the additional transaction costs incurred in navigating a patent thicket, Shapiro (2001) has called attention to another source of inefficiency – the complements problem. When distinct firms are selling inputs – all of which are required for pro- duction of the final product – they fail to internalize the effect that their royalty rates have on the demand for other inputs. This results in each patent holder setting too high a royalty rate. },
tags={vertical integration, patent pools, raising rivals' costs, double marginalization},
filename={Kim (2004) - Vertical Structure And Patent Pools.pdf}
}
@article{king2007clearing,
title={Clearing the Patent Thicket: The Supreme Court and Congress Undertake Patent Reform},
author={King, S.M.},
journal={Intell. Prop. \& Tech. LJ},
volume={9},
pages={13--13},
year={2007},
abstract={},
discipline={Law},
research_type={Commentary, Discussion},
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={All three developments have led to what is perceived as a marked increase in junk patents, as well as what Carl Shapiro has termed a “patent thicket”—overlapping sets of patent rights leading to a maze of cross-licensing agreements, as well as the rise of hold-up litigation.},
thicket_def={Refs Shapiro},
thicket_def_extract={All three developments have led to what is perceived as a marked increase in junk patents, as well as what Carl Shapiro has termed a “patent thicket”—overlapping sets of patent rights leading to a maze of cross-licensing agreements, as well as the rise of hold-up litigation.},
tags={supreme court, cases, patent reform},
filename={King (2007) - Clearing The Patent Thicket.pdf}
}
@techreport{lampe2009patent,
title={Do Patent Pools Encourage Innovation? Evidence from the 19th-century Sewing Machine Industry},
author={Lampe, R.L. and Moser, P.},
year={2009},
institution={National Bureau of Economic Research},
abstract={Members of a patent pool agree to use a set of patents as if they were jointly owned by all members and license them as a package to other firms. Regulators favor pools as a means to encourage innovation: Pools are expected to reduce litigation risks for their members and lower license fees and transactions costs for other firms. This paper uses the example of the first patent pool in U.S. history, the Sewing Machine Combination (1856-1877) to perform the first empirical test of the effects of a patent pool on innovation. Contrary to theoretical predictions, the sewing machine pool appears to have discouraged patenting and innovation, in particular for the members of the pool. Data on stitches per minute, as an objectively quantifiable measure of innovation, confirm these findings. Innovation for both members and outside firms slowed as soon as the pool had been established and resumed only after it had dissolved.},
discipline={Econ},
research_type={Empirical},
industry={Sewing},
thicket_stance={Pro},
thicket_stance_extract={Almost one hundred years later, patent pools have re-emerged as a remedy for industries that are plagued by litigation and patent blocking, which occurs when owners of competing patents prevent the commercialization of new technologies.},
thicket_def={Refs shapiro},
thicket_def_extract={},
tags={Patent pools, incentives to innovation},
filename={Lampe Moser (2009) - Do Patent Pools Encourage Innovation.pdf}
}
@techreport{lampe2012patent,
title={Do Patent Pools Encourage Innovation? Evidence from 20 US Industries under the New Deal},
author={Lampe, R.L. and Moser, P.},
year={2012},
institution={National Bureau of Economic Research},
abstract={},
discipline={Econ},
research_type={Empirical, Econometric Model},
industry={General},
thicket_stance={Weak Pro},
thicket_stance_extract={For example, the creation of a pool may reduce the need for member firms to create patent thickets by reducing the threat of litigation (e.g., Shapiro 2001; Gilbert 2004).},
thicket_def={refs shapiro},
thicket_def_extract={We also investigate whether part of the observed decline may be driven by a reduction in lower-quality or “strategic” patents. For example, the creation of a pool may reduce the need for member firms to create patent thickets by reducing the threat of litigation (e.g., Shapiro 2001; Gilbert 2004)},
tags={patent pools, effects on innovation},
filename={Lampe Moser (2012) - Do Patent Pools Encourage Innovation.pdf}
}
@article{leaffer2009patent,
title={Patent Misuse and Innovation},
author={Leaffer, M.},
journal={J. High Tech. L.},
volume={10},
pages={142},
year={2009},
abstract={},
discipline={Law},
research_type={Written Theory},
industry={General},
thicket_stance={Weak Pro},
thicket_stance_extract={Single company acquisition of a dense web of overlapping patents-patent thickets15-may create a seemingly impenetrable web which a company must hack its way through in order to commercialize new technology.1 6 As the number of issued patents skyrocket, companies more frequently enter into arrangements with competitors "not only to recover their investment from creating patented products but also to avoid the patent landmines that line the path of innovation."},
thicket_def={def34},
thicket_def_extract={A firm with a large patent portfolio enveloping a competitor's key technologies-one that could be termed a "patent thicket"-has the potential to use it to suppress competition in the ultimate goods market.142 As stated above, patent thickets may encompass patents of dubious merit.143 Unfortunately, it is costly to innovate around assertions of infringement},
tags={antitrust, patent misuse},
filename={Leaffer (2009) - Patent Misuse And Innovation.pdf}
}
@article{lee2006examining,
title={Examining the Viability of Patent Pools for the Growing Nanotechnology Patent Thicket},
author={Lee, A.},
journal={Nanotech. L. \& Bus.},
volume={3},
pages={317},
year={2006},
abstract={A patent pool is a cooperative arrangement between several patent holders, all of them necessary and fundamental to the creation of a product or process, where all of the patents can be licensed at a single price. They are an attractive option for fragmented patent landscapes, where they are created in hopes of avoiding the high cost associated with acquiring numerous licensing agreements, avoid widespread patent disputes, and help create a standard, amongst other reasons. This issue is especially relevant to the emerging scientific field of nanotechnology, where there is widespread concern about the fragmentation of the intellectual property landscape. This paper aimed to develop a general list of criteria to aid in determining whether patent pools are a viable option for a market by examining relevant literature and conducting interviews; it was then applied to the dendritic nanotechnology’s drug delivery and pharmaceutical applications. The completed list had nine criteria and, when applied to the dendritic nanotechnology market, concludes that a patent pool will not be necessary for the continued advancement of this application. The primary reason is that a huge amount of patents are in control of one company alone, Dendritic Nanotechnologies, and seem to be the primary source for the most highly sought after dendritic patents.},
discipline={Management},
research_type={Written Theory},
industry={Nanotechnology},
thicket_stance={Assumed Pro},
thicket_stance_extract={They are often viewed as the “simplest solution” to intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets of IP (a.k.a patent thickets) or are uncertain if there is possible infringement of patent issues (a.k.a. Patent Hold-Up).},
thicket_def={def37},
thicket_def_extract={...to intellectual property rights (IPR) bottlenecks with multiple stakeholders that have overlapping sets of IP (a.k.a patent thickets)},
tags={patent pool, nanotechnology},
filename={Lee (2006) - Examining The Viability Of Patent Pools For The Growing Nanotechnology Patent Thicket.pdf}
}
@article{lei2009patents,
title={Patents versus Patenting: Implications of Intellectual Property Protection for Biological Research},
author={Lei, Z. and Juneja, R. and Wright, B.D.},
year={2009},
abstract={A new survey shows scientists consider the proliferation of intellectual property protection to have a strongly negative effect on research.},
discipline={Biology},
research_type={Survey, Regression},
industry={Biology},
thicket_stance={Anti},
thicket_stance_extract={Our respondents do not encounter an anticommons or a patent thicket. Rather, they believe that institutionally mandated MTAs put sand in the wheels of a lively system of intradisciplinary exchanges of research tools. Seeing no countervailing effect on the supply of these tools, they conclude that patenting impedes the progress of research.},
thicket_def={cites Shapiro and heller/eisenberg},
thicket_def_extract={This question has been of particular concern for the biological sciences, where production and exchange of biological ‘research tools’ are important for ongoing scientific progress. Recent studies addressing this issue in the United States1,2, Germany3, Australia4 and Japan5 find that “patent thickets”6 or an “anticommons”7 rarely affect the research of academic scientists.},
tags={research access, open source, IP Rights},
filename={Lei Juneja Wright (2009) - Patents Versus Patenting.pdf}
}
@article{lerner2005theeconomics,
title = {The Economics of Technology Sharing: Open Source and Beyond},
author = {Lerner, Josh and Tirole, Jean},
journal = {The Journal of Economic Perspectives},
volume = {19},
number = {2},
pages = {pp. 99-120},
abstract = {This paper reviews our understanding of the growing open source movement. We highlight how many aspects of open source software appear initially puzzling to an economist. As we have acknowledge, our ability to answer confidently many of the issues raised here questions is likely to increase as the open source movement itself grows and evolves. At the same time, it is heartening to us how much of open source activities can be understood within existing economic frameworks, despite the presence of claims to the contrary. The labor and industrial organization literatures provide lenses through which the structure of open source projects, the role of contributors, and the movement's ongoing evolution can be viewed.},
year = {2005},
publisher = {American Economic Association},
copyright = {Copyright © 2005 American Economic Association},
discipline={Econ},
research_type={Discussion, Written Theory},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={Firms can also address these problems in non-open-source ways, such as patent pools, standard-setting organizations, and self-imposed commitments. In a patent pool, firms blend their patents with those of other firms. These pools allow users to access a number of firms’ patents simultaneously, thereby avoiding the “patent thicket.”},
thicket_def={def38},
thicket_def_extract={Second, open source avoids the problem of a “patent thicket” when multiple firms have overlapping intellectual property rights, and at least one party attempts to extract a high fee for its particular contribution.},
tags={open source, patent pools},
filename={Lerner Tirole (2005) - The Economics Of Technology Sharing Open Source And Beyond.pdf}
}
@article{lerner2003structure,
title={The Structure and Performance of Patent Pools: Empirical Evidence},
author={Lerner, J. and Strojwas, M. and Tirole, J.},
journal={Working paper},
year={2003},
abstract={},
discipline={Econ},
research_type={Empirical, Regression},
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={Numerous commentators have suggested that the proliferation of these awards has had socially detrimental consequences: overlapping intellectual property rights may make it difficult for inventors to commercialize new innovations. (Gallini [2002] reviews this literature.)},
thicket_def={def39},
thicket_def_extract={A more benign alternative is that firms enter into patent pools to solve the “patent thicket” problem: the presence of overlapping intellectual property holdings that make it difficult for third parties to license patent holdings and develop new technologies.},
tags={Pools},
filename={Lerner Strojwas Tirole (2003) - The Structure And Performance Of Patent Pools Empirical Evidence.pdf}
}
@techreport{lerner2002efficient,
title={Efficient Patent Pools},
author={Lerner, J. and Tirole, J.},
year={2002},
institution={National Bureau of Economic Research},
abstract={The paper builds a tractable model of a patent pool, an agreement among patent owners to license a set of their patents to one another or to third parties. It Þrst provides a necessary and sufficient condition for a patent pool to enhance welfare. It shows that requiring pool members to be able to independently license patents matters if and only if the pool is otherwise welfare reducing, a property that allows the antitrust authorities to use this requirement to screen out unattractive pools. The paper then undertakes a number of extensions: cases where patents differ in importance, where asymmetric blocking patterns exist, and where licensors are also licencees. We also undertake some initial explorations of the impact of pools on innovation. We conclude by showing that the analysis has broader applicability than pools, as it is also relevant to a number of co-marketing arrangements.},
discipline={Econ},
research_type={Theory},
industry={General},
thicket_stance={Weak Pro},
thicket_stance_extract={Innovations in computer hardware, software, and biotechnology often build on a number of other innovations owned by a diverse set of owners and as a result patent thicket" problems - overlapping patent claims that preclude the adoption of new technologies - can be severe.},
thicket_def={def40},
thicket_def_extract={Innovations in computer hardware, software, and biotechnology often build on a number of other innovations owned by a diverse set of owners and as a result patent thicket" problems - overlapping patent claims that preclude the adoption of new technologies - can be severe.},
tags={Patent pools, welfare},
filename={Lerner Tirole (2002) - Efficient Patent Pools.pdf}
}
@incollection{lerner2008public,
title={Public policy toward patent pools},
author={Lerner, J. and Tirole, J.},
booktitle={Innovation Policy and the Economy, Volume 8},
pages={157--186},
year={2008},
publisher={University of Chicago Press},
abstract={The past two decades have seen an explosion of patent awards and litigation across a wide variety of technologies, which numerous commentators have suggested has socially detrimental conseuqences. Patent pools, in which owners of intellectual property share patent rights with each other and third parties, have been proposed as a way in which firms can address this patent-thicket problem. The paper discusses the current regulatory treatment of patent pools and highlights why a more nuanced view than focusing on the extreme cases of perfect complements and perfect substitutes is needed. It also highlights the importance of regulators' stance towward independent licensing, grantback policies, and royalty control. We also present case-study and large-sample empirical evidence.},
discipline={Econ},
research_type={Theory},
industry={General, Policy},
thicket_stance={Pro},
thicket_stance_extract={Many observers have suggested that patent-thicket problems where key patents are widely held affect many emerging industries. Patent thickets may lead to three problems. First, royalty stacking may result: each individual patent holder may charge a royalty that seems reasonable when viewed in isolation, but together they represent an unreasonable burden. Second, even if other firms agree to license their patents at a modest rate, a hold-out problem may result if a single firm then sets a high license fee for its technology Finally, the very process of arranging the needed licenses may prove to be time consuming. Patent pools thus offer a one-stop shop through which these problems can be avoided.},
thicket_def={def41},
thicket_def_extract={Many observers have suggested that patent-thicket problems - where key patents are widely held affect many emerging industries},
tags={patent pools, licensing, grantback, royalties, substitutes and complements, welfare},
filename={Lerner Tirole (2008) - Public Policy Toward Patent Pools.pdf}
}
@article{lerner2007impact,
title={What is the Impact of Software Patent Shifts? Evidence from Lotus v. Borland},
author={Lerner, J. and Zhu, F.},
journal={International Journal of Industrial Organization},
volume={25},
number={3},
pages={511--529},
year={2007},
abstract={Economists have debated the extent to which strengthening patent protection spurs or detracts from technological innovation. This paper examines the reduction of software copyright protection in the Lotus v. Borland decision. If patent and copyright protections are substitutes, weakening of one form should be associated with an increased reliance on the other. We find that the firms affected by the diminution of copyright protection disproportionately accelerated their patenting in subsequent years. But little evidence can be found for any harmful effects on firms' performance and incentive to innovate: in fact, the increased reliance on patents is correlated with growth in measures such as sales and R&D expenditures.},
discipline={Econ},
research_type={Empirical, Regression, Model},
industry={Software, Technology},
thicket_stance={Weak Pro},
thicket_stance_extract={The environment is a complex one: many other changes, such as the widespread dissemination of the Internet, may have differentially affected firms during this period. While our result contradicts the claim by Bessen and Hunt (2004) that software patents substitute for R&D at the firm level, increased reliance on patenting could at the same time contribute to patent thickets that slow down overall innovation in the industry. Therefore, the patent thicket problem – an overlapping set of patent rights requiring those seeking to commercialize new technology obtain licenses from multiple patentees (Shapiro, 2001) – could still exist},
thicket_def={refs shapiro},
thicket_def_extract={Therefore, the patent thicket problem – an overlapping set of patent rights requiring those seeking to commercialize new technology obtain licenses from multiple patentees (Shapiro, 2001) – could still exist}},
tags={uncertainty, patent and copyright protections},
filename={Lerner Zhu (2007) - What Is The Impact Of Software Patent Shifts.pdf}
}
@article{lin2001research,
title={Research Versus Development: Patent Pooling, Innovation and Standardization in the Software Industry},
author={Lin, D.},
journal={J. Marshall Rev. Intell. Prop. L.},
volume={1},
pages={i},
year={2001},
abstract={Despite the impressive pace of modern invention, a certain “patent thicket” effect that may be impeding what has become an increasingly difficult road to the commercialization of new technologies. Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and as a result, are often subject to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies. The difficulties of acquiring licenses (e.g. hold-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologies. As such, patent pooling, once condemned as facilitating antitrust violations in past eras, has been reintroduced as a practice that, if properly structured, has potentially strong pro-competitive benefits. Patent pooling has the potential to reduce the level of research and invention in new technologies that can compete with an incumbent standard. Recent patent jurisprudence and lenient federal antitrust agency of recent patent pooling proposals seem to create an environment that encourages the resurgence of patent pooling.},
discipline={Law},
research_type={Written Theory},
industry={Software, Technology},
thicket_stance={Assumed Pro},
thicket_stance_extract={Despite the impressive pace of modern invention, commentators have observed a certain “patent thicket” effect that may be impeding what has become an increasingly difficult road to the commercialization of new technologies.1 Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and as a result, are often subject to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies.2 The difficulties of acquiring licenses (e.g., hold-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologies.},
thicket_def={Refs Shapiro},
thicket_def_extract={Despite the impressive pace of modern invention, commentators have observed a certain “patent thicket” effect that may be impeding what has become an increasingly difficult road to the commercialization of new technologies.1 Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and as a result, are often subject to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies.2 The difficulties of acquiring licenses (e.g., hold-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologies.},
tags={Open standards, SSO, },
filename={Lin (2001) - Research Versus Development.pdf}
}
@article{lin2011licensing,
title={Licensing Strategies in the Presence of Patent Thickets},
author={Lin, L.},
journal={Journal of Product Innovation Management},
volume={28},
number={5},
pages={698--725},
year={2011},
abstract={Many key industries (e.g., biomedical, pharmaceuticals, telecommunications, and information technologies) are characterized by cumulative innovations, where the introduction of a new product or service often requires many complementary technologies. When these technologies are protected by intellectual property rights owned by many firms, patent thickets exist, which researchers have argued may hinder the development of cumulative innovations. Specifically, patent thickets may lead to excessive royalty burdens for potential licensees, which is called ‘‘royalty stacking,’’ and if such costs are passed on to consumers, prices of products based on cumulative technologies will be driven up, dubbed as ‘‘double marginalization.’’ The literature, however, does not address these issues under different forms of licensing contracts. This article develops a game-theoretic model where a downstream firm seeks to license N patents that read on its product from upstream firms. It discusses a variety of licensing forms widely used in practice and attempts to discover whether royalty stacking and double marginalization occur under these forms of licenses. It also studies the impact of bargaining power between parties. It is found that when patent ownership becomes more fragmented, neither royalty stacking nor double marginalization occurs under profit-based royalty, fixed fee, and hybrid licenses. Such problems occur only under pure quantity-based or pure revenue-based royalty licenses when the downstream firm’s bargaining power is low. It is also shown that no matter how fragmented the ownership structure of patent is, hybrid licenses consisting of a fixed fee and a quantity- or revenue-based royalty rate lead to the same market outcomes as a fully integrated firm that owns all the patents and the downstream market. This article has interesting implications for both research and practice. First, the results show that even under the same patent ownership structure, different forms of licenses lead to quite different market outcomes. Therefore, it is suggested that firms and policy makers pay more attention to contractual forms of licenses when trying to minimize the negative impact of patent thickets. Second, the extant literature has largely assumed that quantity-based royalties are used, where double marginalization is the most severe. In practice, revenue-based royalties are most common, under which double marginalization is much milder. Third, the results show that patent pools can be most effective in mitigating royalty stacking and double marginalization when quantity-based or revenue-based royalties are the sole or primary payment form, especially when downstream firms have low bargaining power.},
discipline={Econ},
research_type={Theory, Mathematical},
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={When these technologies are protected by intellectual property rights owned by many firms, patent thickets exist, which researchers have argued may hinder the development of cumulative innovations. Specifically, patent thickets may lead to excessive royalty burdens for potential licensees, which is called ‘‘royalty stacking,’’ and if such costs are passed on to consumers, prices of products based on cumulative technologies will be driven up, dubbed as ‘‘double marginalization.’’},
thicket_def={Refs Heller/Eisenberg/Lessig/Shapiro/Bessen and Maskin},
thicket_def_extract={Related, and often overlapping, patents owned by many entities are often described as ‘‘patent thickets’’ and researchers have argued that patent thickets can be detrimental to innovation, especially in information industries such as software (see, among others, Heller and Eisenberg, 1998; Lessig, 2001; Shapiro, 2001; Bessen and Maskin, 2009).},
tags={Patent Pools, Licensing, Royalties, double marginalization, upstream, downstream},
filename={Lin (2011) - Licensing Strategies In The Presence Of Patent Thickets.pdf}
}
@article{macdonald2004means,
title={When Means Become Ends: Considering the Impact of Patent Strategy on Innovation},
author={Macdonald, S.},
journal={Information Economics and Policy},
volume={16},
number={1},
pages={135--158},
year={2004},
abstract={The patent is supposed to be a means to an end, that end being innovation. Whether the innovation comes from the protection the patent affords the inventor, or from the dissemination of the information of invention the patent allows, the patent is not meant to be an end in itself. This seems to be changing, the patent acquiring a strategic value increasingly independent of innovation. If this development has gone largely unnoticed, it may be because the patent system tends to be viewed from the entrenched perspectives of lawyers and economists, and of a number of interest groups that justify their reliance on the system in terms of the innovation it is supposed to encourage. These groups have never included small firms and developing countries in whose name they frequently defend the patent system. They may have some difficulty justifying a system whose strategic value is so divorced from its value for innovation.},
discipline={Management},
research_type={Discussion, Commentary},
industry={Strategy, General},
thicket_stance={Weak Pro},
thicket_stance_extract={The pharmaceutical industry has been instrumental in creating a patent system for the pharmaceutical industry, appropriate to the orderly innovation of that industry. Acceptance of the innovation myth has meant that this logic is rarely challenged. Thus, for instance, development may relate to many patents, not just one (Heller and Eisenberg, 1998). The costs of navigating through mazes of overlapping patent rights – through patent thickets – are likely to be considerable (Shapiro, 2001), and are likely to be an obstacle to innovation.},
thicket_def={refs shapiro},
thicket_def_extract={The costs of navigating through mazes of overlapping patent rights – through patent thickets – are likely to be considerable (Shapiro, 2001)...},
tags={strategic use of patents},
filename={Macdonald (2004) - When Means Become Ends.pdf}
}
@article{mallo2008patent,
title={Patent-related Barriers to Market Entry for Generic Medicines in the European Union: A Review of Weaknesses in the Current European Patent System and Their Impact on Market Access of Generic Medicines},
author={Mallo, L. and Roox, K. and Pike, J. and Brown, A. and Becker, S. and Thaler, G.},
journal={Journal of Generic Medicines: The Business Journal for the Generic Medicines Sector},
volume={5},
number={4},
pages={255--280},
year={2008},
publisher={SAGE Publications},
abstract={Patents are effective tools for promoting innovation in the pharmaceutical sector. Originator companies should be able to recoup their R & D investments during the term of the basic patent / SPC on an active pharmaceutical substance. Generic competition should be available immediately after expiry of that term. The chances of market entry for generic medicines companies in all markets the day following expiry of the main basic patent in all European Union markets is, however, not possible or, at best, is extremely diffi cult. Due to a diminishing number of newly registered products and contracting product pipelines, originator companies may be tempted to unjustly prolong the patent monopoly of existing products. The result is known as the ‘ evergreening ’ of a basic patent with the help of follow-on patents to keep generic competitors off the market. These follow-on patents are often weak or trivial and, upon careful examination, it is clear that they should never have been granted. Patent quality is therefore of the utmost importance. The European patent system should only reward true inventions and should discourage patent applications for ordinary innovation. An important way of reducing the incidence of poor quality follow-on patents is to remedy certain structural defi ciencies and weaknesses in the current examination procedure. Priority must be given to ensuring that the European Patent Offi ce (EPO) has the resources it needs to continue to improve the quality of patent examiners, along with their training and remuneration, and to increase the number of more experienced senior examiners in order to give every patent application the deliberate, expert review it deserves. This would lead to a more stringent application of the patentability requirements and fewer trivial patents. Applicants should be more rigorously required to provide patent applications of the highest quality accompanied by all relevant information at the start of the examination process. Similarly, they should be under obligation to disclose all information known to them that is material to the patentability of their invention. Furthermore, better third-party participation would also help to avoid inappropriate follow-on patents from being granted. When such patents are granted, an immediate review should be possible to avoid the assertion of ultimately invalid patents to hinder generic competition. This would require an acceleration of the current opposition proceedings that today can take many years. The structure established under the European Patent Convention only provides for a common and single European patent application and granting system by the EPO. A European patent is not a unitary patent, but essentially a bundle of national patents. As a result, questions of patent infringement and validity are governed by various national laws and are handled by the national courts operating under different procedural rules. This purely national litigation system results in a complex arena of multiple patent litigation involving high costs, forum shopping and diverging, even contradictory, court decisions. The lack of a central judiciary composed of experienced patent judges is regarded as one of the major defects in the current patent system. An effective solution would be the creation of a central European patent court that would deal with questions of invalidity and infringement at a pan-European level. Until this has been achieved, specialised national patent courts should be created with technically skilled judges with powers to reach a decision within an acceptable timeframe. Furthermore, the standard for obtaining an interim injunction should be returned to its roots as an equitable remedy since injunctions today are often used simply as a litigious tactic. This change would require a litigant to establish the existence of irreparable harm that cannot be compensated by monetary damages before a court would take the far-reaching step of enjoining a product. Finally, measures should be taken to ensure that originator companies do not use other means to unjustly prolong their monopoly by, for example, introducing a system of patent linkage, obtaining improperly granted SPCs, deploying inaccurate marketing campaigns for promoting ‘ new ’ products with no substantial added therapeutic value as innovative products, etc.},
discipline={Policy},
research_type={Commentary, Discussion},
industry={Pharmaceutical},
thicket_stance={Weak Pro},
thicket_stance_extract={Certain structural defi ciencies and weaknesses in the current examination procedure, however, result in the grant of patents of variable quality, giving a patent owner / originator company facing expiry of a basic product patent the opportunity to create what is known as a ‘ patent thicket ’ (see below). The most obvious structural issues are discussed below.},
thicket_def={},
thicket_def_extract={},
tags={Evergreening},
filename={Mallo (2008) - Patent Related Barriers To Market Entry For Generic Medicines In The European Union.pdf}
}
@article{maskus2006reforming,
title={Reforming US patent policy: getting the incentives right},
author={Maskus, K.E.},
journal={Innovations: Technology, Governance, Globalization},
volume={1},
number={4},
pages={127--153},
year={2006},
publisher={MIT Press},
abstract={},
discipline={Policy},
research_type={Commentary, Discussion},
industry={General},
thicket_stance={Weak Pro},
thicket_stance_extract={In addition to the costs of individual patents, researchers have to contend with “patent thickets.” That is, complex technologies, such as biomedical research tools,embody a number of technological inputs, many of which are patented. A different company, in turn, could own each patent. Negotiating these thickets raises the cost of securing rights. Weaker patent standards encourage patent proliferation and an enlargement of the thickets for research in areas such as biotechnology, agricultural chemicals, and pharmaceuticals...That suggests patent thickets and transactions costs may slow down the diffusion of scientific research.},
thicket_def={def42},
thicket_def_extract={In addition to the costs of individual patents, researchers have to contend with “patent thickets.” That is, complex technologies, such as biomedical research tools,embody a number of technological inputs, many of which are patented.},
tags={TRIPS, patent proliferation},
filename={Maskus (2006) - Reforming Us Patent Policy Getting The Incentives Right.pdf}
}
@article{masur2010costly,
title={Costly Screens and Patent Examination},
author={Masur, J.S.},
journal={Journal of Legal Analysis},
volume={2},
number={2},
pages={687--734},
year={2010},
publisher={Oxford University Press},
abstract={The United States Patent and Trademark Office has acquired a well-deserved reputation for inefficacy and inefficiency. Proposals for reforming the patent office have thus focused on improving the quality of patent review while decreasing its cost. Yet this view overlooks the valuable function performed by the high costs associated with obtaining a patent: these costs serve as an effective screen against low-value patents. Moreover, due to asymmetries in patent values, the costly screen is likely to select against socially harmful patents in disproportionate numbers. Although the patent office is the most prominent forum in which this type of costly screening operates, it is not the only one. In a variety of other contexts, the private costs of navigating an administrative process may complement the process itself in screening out unwanted participants.},
discipline={Law, Policy},
research_type={Discussion, Commentary},
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={Third, there are patents of low private value and low (or negative) social value; this class of patents includes both discarded, unenforced patents that increase the search costs and risk imposed on commercial firms—the ‘‘patent thicket,’’ in popular parlance (Shapiro 2001)—and worthless, largely unenforceable patents usable only for extracting nuisance settlements (see Section 2.2.).},
thicket_def={Refs Shapiro},
thicket_def_extract={Third, there are patents of low private value and low (or negative) social value; this class of patents includes both discarded, unenforced patents that increase the search costs and risk imposed on commercial firms—the ‘‘patent thicket,’’ in popular parlance (Shapiro 2001)...},
tags={Screening Patents, administrative costs of patents},
filename={Masur (2010) - Costly Screens And Patent Examination.pdf}
}
@article{merges2006introductory,
title={Introductory Note to Brief of Amicus Curiae in eBay v. MercExchange},
author={Merges, R.P.},
journal={Berkeley Tech. LJ},
volume={21},
pages={997},
year={2006},
abstract={},
discipline={Law},
research_type={Commentary, Discussion},
industry={General, Technology},
thicket_stance={Pro},
thicket_stance_extract={As noted above, the existence of the patent thicket and the problem of low quality patents make it especially easy for trolls to acquire patents that arguably cover one of the hundreds or thousands of processes incorporated in a single high technology product. The troll waits until a company with deep pockets makes irreversible investments in the arguably infringing technology. The troll may even revise the terms of the patent (through a patent "reissuance" or "continuation") in light of the target's investment in order to strengthen the infringement claim. The troll then uses the threat of an injunction shutting down production to demand a significant share of the total profit associated with the product. This gamesmanship results in no social benefit and a great deal of harm.},
thicket_def={refs Shapiro},
thicket_def_extract={As the Federal Trade Commission recently explained, innovation in the computer and Internet industry is often incremental and cumulative, and the pace of change is rapid.4 The net result is that each marketable product in this industry may incorporate--often in an incidental, tangential, and sometimes unintentional way-hundreds or even thousands of patented processes. This is commonly described as a "patent thicket": "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology." Carl Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard-Setting, in INNOVATION POLICY AND THE ECONOMY 119, 120-21 (Adam Jaffee et al. eds., 2001); see also To Promote Innovation 2:27-31, 3:2, 34-35, 52-53},
tags={Patent Trolls, injunction},
filename={Merges (2006) - Introductory Note To Brief Of Amicus Curiae In Ebay V MercExchange.pdf}
}
@article{mertes2010managing,
title={Managing the patent thicket and maximizing patent lifetime in vaccine technology},
author={Mertes, M.M.M. and St{\"o}tter, G.},
journal={Human Vaccines},
volume={6},
number={10},
pages={860--863},
year={2010},
publisher={Landes Bioscience},
abstract={PAtents are exclusive rights for a limited period of time that are granetd to provide an incentive for innovation and in exchange for the public disclosure of an invention. Patenting in the medical field, especially in the field of human vaccine technologies, is full of pitfalls, because the products that finally access the market are often covered by a multitude of exclusive IP rights. This commentary gives an overview on obstacles in vaccine patenting and how to overcome them, and intends to provide a patenting guideline for researchers.},
discipline={Law, Policy},
research_type={Discussion, Commentary},
industry={Vaccine, Biology},
thicket_stance={Weak Pro},
thicket_stance_extract={Managing the patent thicket in the fields of vaccine technology is challenging as one product may be covered by a plurality of exclusive IP rights that have to be considered when developing a product and building up a patent portfolio. Consequently, licensing is a key point in the vaccine industry.If a basic patent is held by a powerful patent holder refusing to grant a license under reasonable commercial terms or abuses a market-dominating position, it should be examined, whether the requirements to request a compulsory license are fulfilled.},
thicket_def={},
thicket_def_extract={},
tags={licensing, patent portfolio},
filename={Mertes Stotter (2010) - Managing The Patent Thicket And Maximizing Patent Lifetime In Vaccine Technology.pdf}
}
@article{meurer2002business,
title={Business Method Patents and Patent Floods},
author={Meurer, M.J.},
journal={Wash. UJL \& Pol'y},
volume={8},
pages={309},
year={2002},
abstract={},
discipline={Law},
research_type={Discussion, Commentary},
industry={General},
thicket_stance={Weak Pro},
thicket_stance_extract={Furthermore, a thicket of patents may stultify development of technology because of the cost of securing patent licenses from the large numbers of patent owners.},
thicket_def={def43},
thicket_def_extract={Furthermore, a thicket of patents may stultify development of technology because of the cost of securing patent licenses from the large numbers of patent owners.},
tags={patent pools, business methods patents, patent floods},
filename={Meurer (2002) - Business Method Patents And Patent Floods.pdf}
}
@book{muris2001competition,
title={Competition and Intellectual Property Policy: The Way Ahead},
author={Muris, T.J.},
year={2001},
publisher={US FTC},
abstract={},
discipline={Policy},
research_type={Speech},
industry={General},
thicket_stance={Weakly Anti},
thicket_stance_extract={Moreover, even if there were a "patent thicket" problem, others state that firms have found a range of means to overcome these obstacles, including cross-licenses and patent pooling.},
thicket_def={Quotes Shapiro},
thicket_def_extract={According to Professor Carl Shapiro, a "patent thicket" has formed, which he describes as "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology."*},
tags={Competition, FTC, Antitrust},
filename={Muris (2001) - Competition And Intellectual Property Policy The Way Ahead.pdf}
}
@article{napoleon2009impact,
title={Impact of Global Patent and Regulatory Reform on Patent Strategies for Biotechnology},
author={Napoleon, V.J.},
journal={Pitt. J. Tech. L. \& Pol'y},
volume={9},
pages={1},
year={2009},
abstract={},
discipline={Law, Policy},
research_type={Discussion},
industry={Biotechnology},
thicket_stance={Weak Pro},
thicket_stance_extract={Pharmaceutical companies typically grow a patent thicket seeking a wide range of chemical variants and analogs, methods of synthesizing the drug, chemical intermediates in this synthesis, different crystal forms, different finished dosage forms and various methods of use.62 Obtaining permission from various patent holders for use of patents can prove to be difficult particularly if the patent holder’s objective in creating the thicket is to block innovation by outsiders. Because useful innovation in biotechnology requires multiple inventive steps and technologies, we could conceivably witness cumulative innovation with infringement on many patents which ultimately serves as a drag on innovation and commercialization.},
thicket_def={Quotes Shapiro},
thicket_def_extract={This pattern, however, has created what some would characterize as a “Patent Thicket”59 in biotechnology. That is, emerging from the overabundance of patent filings and associated activity is “a dense web of overlapping intellectual property rights”},
tags={International Patent System, Patent reform},
filename={Napoleon (2009) - Impact Of Global Patent And Regulatory Reform On Patent Strategies For Biotechnology.pdf}
}
@article{nielsen2006compulsory,
title={Compulsory Patent Licensing: Is It a Viable Solution in the United States},
author={Nielsen, C.M. and Samardzija, M.R.},
journal={Mich. Telecomm. \& Tech. L. Rev.},
volume={13},
pages={509},
year={2006},
abstract={As technology continues to advance at a rapid pace, so do the number of patents that cover every aspect of making, using, and selling these innovations. In 1996, to compound the rapid change of technology, the U.S. Supreme Court affirmed that business methods are also patentable. Hence in the current environment, scores of patents, assigned to many different parties, may cover a single electronic device or software—making it increasingly impossible to manufacture an electronic device without receiving a cease and desist letter or other notice from a patentee demanding a large royalty or threatening an injunction. Companies, particularly those in the high technology sector, have been asserting for some time now that they are under constant threat of lawsuits that threaten to shut them down. As a result, numerous radical changes to the U.S. Patent Act and patent practice before the U.S. Patent & Trademark Office have been proposed. Certain proposed changes, however, are meeting with resistance because of a reliance on long term patent protection and exclusivity of patent rights by different industries. Notwithstanding, certain foreign governments have already enacted provisions making it possible to obtain a compulsory patent license in the event that a patentee is not practicing his invention or is simply refusing to license the rights to his invention for a reasonable royalty fee.},
discipline={Law},
research_type={Discussion},
industry={General},
thicket_stance={Assumed Pro},
thicket_stance_extract={Many of the patents overlap and block the use of other patents, thereby creating a “patent thicket”—a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.”3 It is hypothesized that patent thickets increase transactional costs and stifle innovation by making it more expensive and difficult to bring new developments to the market.},
thicket_def={Quotes Shapiro},
thicket_def_extract={Many of the patents overlap and block the use of other patents, thereby creating a “patent thicket”—a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.”},
tags={Compulsory Licensing, Royalties},
filename={Nielsen Samardzija (2006) - Compulsory Patent Licensing.pdf}
}
@article{rai2003engaging,
title = {Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform},
author = {Rai, Arti K.},
journal = {Columbia Law Review},
volume = {103},
number = {5},
pages = {pp. 1035-1135},
abstract = {The Court of Appeals for the Federal Circuit, charged with adjudicating appeals in patent cases, has adopted an unusual approach that arrogates power over fact finding while it simultaneously invokes rule-formalism. Although the Federal Circuit's approach may be justified by the fact-finding and policy application deficiencies of the trial courts and the Patent and Trademark Office (PTO), it has had a negative impact on innovation policy and has resulted in a patent system that is sorely in need of reform. This Article argues that because of the interdependence of the various institutions within the patent system, reform of the system must be both multi-institutional and closely attentive to the institutional competence of the system's actors. Although Congress should clearly bolster the PTO's fact-finding abilities, giving plenary responsibility over factual questions to the PTO would not be cost effective. Accordingly, Congress should endow the system with improved fact-finding expertise through the institution of specialized trial courts. As for actual policy formulation, each of the available institutional options--the legislature, the PTO, and the courts--has substantial associated liabilities. On balance, however, the Federal Circuit is probably best positioned to formulate patent policy, so long as the fact-finding expertise of inferior institutions is bolstered and additional appellate mechanisms are instituted. By paying attention to institutional design and revising our institutions accordingly, we can achieve the patent system we should have had all along.},
year = {2003},
publisher = {Columbia Law Review Association, Inc.},
copyright = {Copyright © 2003 Columbia Law Review Association, Inc.},
discipline={Law},
research_type={Discussion, Theory},
industry={General},
thicket_stance={Neutral},
thicket_stance_extract={Defensive patenting has become particularly prominent in certain industries like the semiconductor industry, where innovation is cumulative, and a thicket of relevant patents often exists. See Bronwyn H. Hall & Rosemarie Ham Ziedonis, The Patent Paradox Revisited: An Empirical Study of Patenting in the U.S. Semiconductor Industry, 1979-1995, 32 RAND J. Econ. 101, 104 (2001). In such industries, firms gain freedom to operate through defensive patenting. Indeed, within the semiconductor industry, it appears that much of the increase in patenting per R&D dollar over the last two decades has been the consequence of defensive patenting. See id. (noting that firms "appear to be engaged in 'patent portfolio races' aimed at reducing concerns about being held up by external patent owners and at negotiating access to external technologies on more favorable terms"). According to Hall and Ziedonis, this increase in defensive patenting "is causally related to the pro-patent shift in the U.S. legal environment in the 1980s." Id. I discuss this alleged "pro-patent" shift infra Part III.B.},
thicket_def={References Heller/Eisenberg, Multiple overlapping patents},
thicket_def_extract={Moreover, the guidelines on utility incorporate, at least implicitly, economic concerns that setting the utility standard too low could impede scientific progress by creating a transaction-cost-heavy thicket of patents on basic research},
tags={Patent reform},
filename={Rai (2003) - Engaging Facts And Policy.pdf}
}
@article{schmalensee2009standard,
title={Standard-Setting, Innovation Specialists And Competition Policy},
author={Schmalensee, R.},
journal={The Journal of Industrial Economics},
volume={57},
number={3},
pages={526--552},
year={2009},
publisher={Wiley Online Library},
abstract={Using a simple model of patent licensing followed by product-market competition, this paper investigates several competition policy questions related to standard-setting organizations (SSOs). It concludes that competition policy should not favor patent-holders who practice their patents against innovation specialists who do not, that SSOs should not be required to conduct auctions among patent-holders before standards are set in order to determine post-standard royalty rates (though less formal ex ante competition should be encouraged), and that antitrust policy should not allow or encourage collective negotiation of patent royalty rates. Some recent policy developments in this area are discussed.},
discipline={Econ},
research_type={Theory},
industry={General},
thicket_stance={Weakly Anti},
thicket_stance_extract={One might argue that the rate of innovation or at least of patenting is in fact too high in some sectors, particularly those in which the patent thicket problem is severe. A problem 26 with this argument is that the returns to major innovations would be reduced by collective negotiation, not just the returns to the minor advances that contribute more to patent thickets than to real progress. },
thicket_def={References Shapiro},
thicket_def_extract={},
tags={Standard Setting, Antitrust Policy},
filename={Schmalensee (2009) - Standard Setting Innovation Specialists And Competition Policy.pdf}
}
@article{schmidt2007negotiating,
title={Negotiating the RNAi patent thicket},
author={Schmidt, C.},
journal={Nature biotechnology},
volume={25},
number={3},
pages={273--280},
year={2007},
publisher={New York, NY: Nature Pub. Co., 1996-},
abstract={Patent disputes haven’t materialized in the RNAi field yet, but once products near the market, it might be a different story. Charlie Schmidt investigates.},
discipline={Biology},
research_type={Discussion},
industry={Biology},
thicket_stance={},
thicket_stance_extract={},
thicket_def={},
thicket_def_extract={},
tags={RNA Interface, Licensing, Royalties},
filename={Schmidt (2007) - Negotiating The Rnai Patent Thicket.pdf}
}
@article{shand2007trends,
title={Trends in intellectual property and nanotechnology: implications for the global south},
author={Shand, H. and Wetter, K.J.},
journal={Journal of Intellectual Property Rights},
volume={12},
pages={111--117},
year={2007},
abstract={The race is on to win exclusive monopoly patents on nano-scale materials, devices and processes. The US National Science Foundation predicts that the immensely broad power and scope of nano-scale technologies will revolutionize manufacturing across all industry sectors - capturing a $1 trillion market within six or seven years. Although industry analysts assert that nanotech is in its infancy, patent thickets on fundamental nano-scale materials, tools and processes are already creating thorny barriers for would-be innovators. Industry analysts warn that, 'IP roadblocks could severely retard the development of nanotechnology.' After a decade of confusion and controversy over biotech patents, South governments are now facing a newer, bigger technology wave. By 1 July 2013 even 'least developed' countries will be obligated by the World trade Organization's Trade-Related Asapects of Intellectual Property (TRIPS) to acccommodate nanotechnology-related inventions. Despite rosy predictions that nanotech will provide a technical fix for health, sustainable energy, and environmental security in the South, researchers in the developing world are likely to find that participation in the proprietary 'nanotech revolution' is highly restricted by patent tolbooths, obliging them to pay royalties and licensing fees to gain access.},
discipline={Law},
research_type={Discussion},
industry={Nanotechnology},
thicket_stance={Weak Pro},
thicket_stance_extract={ Although industry analysts assert that nanotech is in its infancy, patent thickets on fundamental nano-scale materials, tools and processes are already creating thorny barriers for would-be innovators.},
thicket_def={},
thicket_def_extract={},
tags={TRIPS, developing Countries},
filename={Shand Wetter (2007) - Trends In Intellectual Property And Nanotechnology.pdf}
}
@article{sharrott2006intellectual,
title={Intellectual Property Developments in Biochip Nanotechology},
author={Sharrott, D. and Sayeed, H.A.},
journal={Nanotech. L. \& Bus.},
volume={3},
pages={20},
year={2006},
publisher={HeinOnline},
abstract={Microfluidics is the science of devices and processes dealing with fluid volumes on the nanoliter or picoliter scale. The most popular and commercially visible applications of this technology consist of DNA microarrays, or “biochips.” DNA microarrays are most useful for their fast, efficient processing of multiple DNA sequences of genes. In this article, Douglas Sharrott and Hassen Sayeed explain the various intellectual property (“IP”) issues relating to DNA microarrays and microfluidics applications. They also examine alternative methods of protecting valuable IP, such as trade secret and “mask work” protection under the copyright laws. Finally, Sharrott and Sayeed discuss a representative case that teaches valuable lessons to those in the microfluidics industry to help guide IP strategies.},
discipline={Law},
research_type={Commentary, Discussion},
industry={Nanotechnology},
thicket_stance={Weakly Pro},
thicket_stance_extract={Until recently, the most significant IP concern about biochips involved the patentability of expressed sequence tags (“ESTs”)—gene fragments for which no known functional utility exists. When the National Institutes of Health applied for the first EST patents in 1991, the possibility arose that such patents could overlap with and possibly invalidate later patents directed toward fully-sequenced, expressed genes.8 Commentators describe this proliferation of overlapping patents as a potential “patent thicket”—a tangle of intellectual property rights through which companies must cut to bring new technologies to market.9 In the thicket, scientists and corporations might be forced to renegotiate constantly for the right to exercise any individual gene patent, or to use commercial products obtained from that gene.},
thicket_def={Refs Shapiro},
thicket_def_extract={Commentators describe this proliferation of overlapping patents as a potential “patent thicket”—a tangle of intellectual property rights through which companies must cut to bring new technologies to market.9 In the thicket, scientists and corporations might be forced to renegotiate constantly for the right to exercise any individual gene patent, or to use commercial products obtained from that gene.},
tags={biochips, trade secrets},
filename={Sharrott Sayeed (2006) - Intellectual Property Developments In Biochip Nanotechology.pdf}
}
@article{serafino2007survey,
title={Survey of patent pools demonstrates variety of purposes and management structures},
author={Serafino, D.},
journal={Knowledge Ecology International. http://keionline. org/content/view/69/1},
year={2007},
abstract={The collective management of intellectual property rights is a term used to describe methods of managing large portfolios of intellectual property assets, including patents, copyrights, trademarks, know-how and data. Patent pools are one such mechanism. A “patent pool” is an agreement between two or more patent owners to license one or more of their patents to one another or to third parties.2 In its 2001 White Paper on Patent Pools, the USPTO said, “A patent pool allows interested parties to gather all the necessary tools to practice a certain technology in one place, e.g, ‘one-stop shopping,’ rather than obtaining licenses from each patent owner individually.”3 The following paper provides a summary of features of 35 patent pools organized or proposed from 1856 to the present. Each of the patent pools was organized in response to a particular set of policy objectives and circumstances. Their purposes were heterogeneous. Some were organized in order to promote the interests of monopolists or cartels. Others were organized to promote competition and benefit the users of patents. There are pools that manage the patents on standards for new information technologies, that enhance R&D for new biomedical or biotechnology agricultural products, or that seek to promote other objectives. Some pools are organized by patent owners, others by manufacturers, and yet others by non-profit institutions, including governments. There is no single reason for creating a patent pool and no single way to manage a patent pool.},
discipline={Econ},
research_type={Written Theory, Empirics},
industry={General, Technology},
thicket_stance={Assumed Pro},
thicket_stance_extract={The Supreme Court ruled in 1947 that the division of the market by territory violated American antitrust laws, and included the contract between National Lead and DuPont in this ruling, which read, in part...The court also determined that “the agreement to license present and future patents and to share know-how contributed to a patent thicket that created a barrier to new entry and allowed DuPont and National Lead to control the domestic industry for titanium dioxide products.”},
thicket_def={},
thicket_def_extract={},
tags={patent pools},
filename={Serafino (2007) - Survey Of Patent Pools Demonstrates Variety Of Purposes And Management Structures.pdf}
}
@article{somaya2003strategic,
title = {Strategic Determinants of Decisions Not to Settle Patent Litigation},
author = {Somaya, Deepak},
journal = {Strategic Management Journal},
volume = {24},
number = {1},
pages = {pp. 17-38},
abstract = {Settlement outcomes in patent litigation are modeled as resulting from strategies pursued by firms with their patented technologies. Hypotheses are derived for two types of influences: the use of patents as isolating mechanisms to protect valuable strategic stakes, and their 'defensive' role in obtaining access to external technologies through mutual hold-up. Parameter estimates from a sample selection probit model provide support for the strategic stakes hypotheses, while the evidence for mutual hold-up is inconclusive. Interindustry comparisons show that nonsettlement of patent suits in both research medicines and computers is increased by strategic stakes and, in addition, mutual hold-up appears to play an important role in computer patent suits.},
year = {2003},
publisher = {Wiley},
copyright = {Copyright © 2003 Wiley},
abstract={Settlement outcomes in patent litigation are modeled as resulting from strategies pursued by firms with their patented technologies. Hypotheses are derived for two types of influences: the use of patents as isolating mechanisms to protect valuable strategic stakes, and their 'defensive' role in obtaining access to external technologies through mutual hold-up. Parameter estimates from a sample selection probit model provide support for the strategic stakes hypotheses, while the evidence for mutual hold-up is inconclusive. Interindustry comparisons show that nonsettlement of patent suits in both research medicines and computers is increased by strategic stakes and, in addition, mutual hold-up appears to play an important role in computer patent suits.},
discipline={Econ, Management},
research_type={Theory, Empirical, Econometric Model},
industry={ICT, Biotechnology},
thicket_stance={Anti},
thicket_stance_extract={When strong, watertight patents are available, as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). On the other hand, in systems products industries, thickets of patents may be necessary to foil attempts to invent around the patent, and obtain a robust patent position. Moreover, defen sive patenting?the building of large patent port folios may become necessary if rivals, aided by a strong enforcement regime, are able to effectively threaten to hold up a firm's commercial operations (Hall and Ziedonis, 2001).},
thicket_def={Strategic Value, Multiple Overlapping Blocking Patents},
thicket_def_extract={When strong, watertight patents are available, as in pharma ceuticals, firms may be able to rely on them to isolate key commercial opportunities (Merges, 1998). On the other hand, in systems products industries, thickets of patents may be necessary to foil attempts to invent around the patent, and obtain a robust patent position. Moreover, defen sive patenting?the building of large patent port folios may become necessary if rivals, aided by a strong enforcement regime, are able to effectively threaten to hold up a firm's commercial operations (Hall and Ziedonis, 2001).},
tags={negotiating},
filename={Somaya (2003) - Strategic Determinants Of Decisions Not To Settle Patent Litigation.pdf}
}
@article{somaya2011innovation,
title={Innovation in Multi-Invention Contexts: Mapping Solutions to Technological and Intellectual Property Complexity},
author={Somaya, D. and Teece, D. and Wakeman, S.},
journal={California Management Review},
volume={53},
number={4},
pages={47--79},
year={2011},
publisher={JSTOR},
abstract={},
discipline={Management},
research_type={Written Theory},
industry={General},
thicket_stance={Pro},
thicket_stance_extract={Scholars such as Michael Heller and Rebecca Eisenberg, Carl Shapiro, and others have drawn attention—arguably too much attention—to the transactional problems created for innovators by such dispersed ownership and the density (or so-called thickets) of patents.58 Less attention has been paid by those authors to the equally important role of patents for supporting innovation in multi-invention settings. Innovators and entrepreneurs are often among the most enthusiastic supporters of the patent system because they perceive it as providing safeguards from misappropriation of their inventions.59 Research has also shown that innovators are often able to devise “working solutions” to navigate patent access concerns, and that patents may in turn be crucial for enabling transactions in technology.60},
thicket_def={References Heller/Eisenberg},
thicket_def_extract={Indeed, the plethora of IP implicated, and the resulting complex licensing required, has led some academics to despair that some sections of the economy have—or are about to—experience a “tragedy of the anticommons” (i.e., no one will use the patented technology because licensing the required technologies is simply too challenging or too expensive).},
tags={multi-invention, negotiation, licensing, strategy},
filename={Somaya Teece Wakeman (2011) - Innovation In Multi Invention Contexts.pdf}
}
