The Myth of the Patent Anti-Commmons

3 August 2015 at 1:40 pm 3 comments

| Dick Langlois |

Just ran across the abstract of a fascinating paper called “The Anti-Commons Revisited” by Jonathan Barnett at USC, which is forthcoming in the Harvard Journal of Law and Technology. Here’s the abstract.

Intellectual property scholars and policymakers often assert that technology and creative markets suffer from “anti-commons” (“AC”) effects that restrain innovation within a web of conflicting intellectual property claims. A minority view asserts that market players have incentives and capacities to correct for AC effects through transactional solutions. To assess the relative merits of each side of this debate, I review a large and diverse body of empirical evidence relating to AC effects in contemporary and historical markets. I independently replicate the most controversial empirical findings, supplement additional research on selected markets, and provide a survey of all documented IP-pooling arrangements in U.S. markets since 1900. The weight of the evidence strongly favors the minority view. Evidence for AC effects is scarce while evidence that markets correct for AC effects is abundant. AC effects are typically preempted or mitigated through cooperative arrangements among small numbers of IP holders or transactional solutions devised by entrepreneurial intermediaries for large numbers of IP holders. This pattern recurs over a diverse array of markets and periods, including automobiles, petroleum refining, aircraft, and radio communications in the early to mid-20th century, and information and communications technology markets from the late 20th century through the present. Contrary to standard assumptions, there is little evidence that these markets experienced reduced or delayed innovation or output despite intensive levels of patent issuance and litigation.

Entry filed under: - Langlois -, Business/Economic History, Innovation, Institutions, Law and Economics.

Cecil M is for Multidivisional Structure

3 Comments Add your own

  • 1. Howard Aldrich  |  3 August 2015 at 7:09 pm

    Dick, when Barnett mentions he “independently replicated” the claims of previous work supporting the minority view, is he referring to some kind of meta-analysis, or new data he collected?

  • 2. Richard  |  4 August 2015 at 1:54 am

    Thanks for posting this, plenty (too many?) of us in the management/strategy/innovation community don’t actively follow law journals, so great to see this

  • 3. Vivek Ghosal  |  10 August 2015 at 2:13 pm

    Perhaps the more important discussion point relates to the “optimal” patent length. Many argue that the 17-20 year period is far to long. As an example, as part of the ongoing Trans-Pacific-Partnership trade discussions, some of the countries are pushing for pharmaceutical IP protection parameters such that generics can enter much sooner. The US is pushing for 12 years, whereas Australia is at the other end pushing for 5 years. Most others are in the 6-8 years range. http://healthblog.ncpa.org/trans-pacific-partnership-and-intellectual-property-protection/

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