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Seizure as a solution to the tragedy of the anticommmons in patent law
The anticommons and its tragedy |
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< | An anticommons occurs when multiple owners each have a right to exclude others from a scarce resource and no one has an effective privilege of use. The “tragedy of the anticommons”, coined by Michel Heller, is when the right to exclude is exercised by some of the right holders, with the result that the resource becomes under-utilized. Heller has discussed this occurrence in post soviet regimes [4] and in biomedical research with Rebecca S. Eisenberg [5]. In the particular case of patents the under-utilization is the suppression of innovation due to the cost of using upstream resources. This problem becomes magnified because the rights holders have monopolies on the resource - the innovator cannot find an alternate supply of the resources they need. |
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> | An anticommons occurs when multiple owners each have a right to exclude others from a scarce resource and no one has an effective privilege of use. The “tragedy of the anticommons”, coined by Michael Heller, is when the right to exclude is exercised by some of the right holders, with the result that the resource becomes under-utilized. Heller has discussed this occurrence in post soviet regimes [4] and in biomedical research with Rebecca S. Eisenberg [5]. In the particular case of patents the under-utilization is the suppression of innovation due to the cost of using upstream resources. This problem becomes magnified because the rights holders have monopolies on the resource - the innovator cannot find an alternate supply of the resources they need. |
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< | Heller and Eisenberg establish three main hurdles that must be overcome to prevent tragedy in the Biomedical anticommons, which can be extended to patents in general. These are the high transaction costs of bundling rights, conflicting goals of rights holders and a rights holder overvaluing of their particular piece of the resource. |
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> | Heller and Eisenberg establish three main hurdles that must be overcome to prevent tragedy in the Biomedical anticommons, which can be extended to patents in general. These are the high transaction costs of bundling rights, conflicting goals of rights holders and rights holders overvaluing of their piece of the resource. |
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< | While some view this situation as one with a free market solution [6], others think that this could be a pitfall in the current system and thus an area ripe for government intervention [7]. Proposed governmental solutions range from surplanting the right to exclude with liability rules [1] to giving free compulsory licenses for experimental use [8]. |
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> | While some view this situation as one with a free market solution [6], others think that this is a pitfall in the current system and thus an area ripe for government intervention [7]. Proposed solutions range from surplanting the right to exclude with liability rules [1] to giving free compulsory licenses for experimental use [8]. |
| | Government seizure as a solution to the tragedy
Government seizure is not a new idea. Seizure has been a useful way for 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, and a recent supreme court case has held that siezed property can go into private hands as long as its use is for the public good [9]. |
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< | The standard argument for granting patent holders the right to exclude is that it will give a financial incentive to innovate. Thus, the argument goes, removing that right will chill innovation as patents will become less valuable because of the taking of rights. Our solution tries to walk the line between ensuring 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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> | The standard argument for granting patent holders the right to exclude is that it is an incentive to innovate. Thus, the argument goes, removing that right will chill innovation as patents will become less valuable because of the taking of rights. Our solution tries to walk the line between ensuring incentives for innovation and decreasing the hurdles and tolls that an innovator needs to take advantage of the protected ideas in downstream research. |
| | Seizure through a forced pooling scheme
A patent pool has been a solution to encourage innovation in the past. Upon entering World War I the US government brokered the creation of a patent pool to encourage aviation, which was stagnating due to disagreements between the Wright company and their competitors [2]. In the realm of copyright, collectives for authors and musicians exist to lessen the transaction costs of licensing [3]. |