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JustinColannino-FirstPaper 5 - 11 Feb 2008 - Main.JustinColannino
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Seizure as a solution to the tragedy of the anticommmons in intellectual property | | | While some view this situation as one with a free market solution (CITE), others think that this could be a pitfall in the current system and thus an area ripe for government intervention (CITE). Proposed governmental solutions range from surplanting intellectual property with liability rules (CITE) to giving free compulsory licenses for experimental use (CITE). | |
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< | Government siezure as a solution to the tragedy
Here we present the idea of government seizure as a solution to the tragedy of the anticommons in intellectual property law. This is not a new idea. _Government seizure has been a useful way for the government to overcome high transactions costs, hold outs or parties unwilling to release their rights at any cost in the building of roads and other public works for centuries. The use of seizure is specifically allowed for the public good with fair compensation in the fifth amendment of the US constitution (CITE), and a recent supreme court case has held that the property can go into private hands as long as its use is for the public good (CITE). | >
> | Government seizure as a solution to the tragedy
The basis for seizure
Here we present the idea of government seizure as a solution to the tragedy of the anticommons in intellectual property law. This is not a new idea. Government seizure has been a useful way for the government to overcome high transactions costs, hold outs or parties unwilling to release their rights at any cost in the building of roads and other public works for centuries. The use of seizure is specifically allowed for the public good with fair compensation in the fifth amendment of the US constitution (CITE), and a recent supreme court case has held that the property can go into private hands as long as its use is for the public good (CITE). | | | The standard argument for the right to exclude in intellectual property is that it will encourage innovation. Thus, the argument goes, removing that right will chill innovation as patents will become less valuable because of the taking of rights. Thus, our solution tries to walk the line between compensation for innovation and decreasing the hurdles and tolls that an innovator needs to take advantage of the protected ideas in downstream research. | |
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> | Seizure through a forced pooling scheme
When an anticommons in a particular resource or group of resources is found to be deterring innovation the government can step in and seize the right to exclude from the patent holders, and place these patents into a patent pool. This effectively overcomes the three problems of transaction costs, conflicting goals and overvaluing of patents: the actors have no right as to how their property is used in the pool.
The question then becomes what constitutes 'fair compensation'. We propose a mandatory licensing scheme to reward the patent holder. When an entity wishes to use the pool they must detail what patents they wish to use and devote some capped percentage of the gross income to the members of the pool with a bonus to those whose patents were used. This scheme is detailed in figure 1. Thus, we retain some semblance of market in that the 'better' patents get used more and thus produce more income, ensuring that the innovators will receive some form of fair compensation from the marketplace for the use of their research.
Benefits of the forced pooling scheme
The forced pooling scheme is not very different from the liability scheme proposed by Bar-Gill and Parchomovsky (CITE). In both schemes the right to exclude is taken and replaced with some monetary compensation. The major differences, and benefits of our forced pooling scheme, are the lower transaction costs, greater predictability of damages and the greater incentive for the industry to consolidate their rights independent of government interference.
Lower transaction costs and predictability
Incentive for rights consolidation independent of government interference | | | References
A Marketplace for Ideas?, |
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