Law Commons^™

Costs, Norms, And Inertia: Avoiding An Anticommons For Proprietary Research Tools, Rebecca S. Eisenberg

Book Chapters

A decade ago the scientific community was sounding alann bells about the impact of intellectual property on the ability of scientists to do their work. Protracted negotiations over access to patented mice and genes, scientific databases, and tangible research materials all pointed toward the same conclusion: that intellectual property claims were undennining traditional sharing norms to the detriment of science. Michael Heller and I highlighted one dimension of this concern: that too many intellectual property rights in 'upstream' research results could paradoxically restrict 'downstream' research and product development by making it too costly and burdensome to collect all the necessary …

Patent Pools, Rand Commitments, And The Problematics Of Price Discrimination, Daniel A. Crane

Book Chapters

The social welfare problematics of patent pooling by competitors are well known. Competitor patent pooling has the potential to create powerful efficiencies by eliminating holdout problems and blocking positions and reducing transactions costs from licensing negotiations. At the same time, competitors can use patent pools to cartelize in a variety of ways, for example by fixing prices, entrenching patents of dubious validity, and discouraging rivalry for innovation. Determining legal norms capable of capturing the efficiencies without enabling cartels has not proven easy.

Perhaps because of the practical difficulty of separating pro-competitive from anticompetitive pools, antitrust scrutiny has swung from extreme …

Noncompliance, Nonenforcement, Nonproblem? Rethinking The Anticommons In Biomedical Research, Rebecca S. Eisenberg

Articles

A decade ago the biomedical research community was sounding alarm bells about the impact of intellectual property (IP) rights on the ability of scientists to do their work. Controversies and delays in negotiating terms of access to patented mice and genes, databases of scientific information, and tangible research materials all pointed toward the same conclusion: that IP claims were undermining traditional sharing norms to the detriment of science. Michael Heller and I highlighted one dimension of this concern: that too many IP rights in "upstream" research results could paradoxically restrict "downstream" research and product development by making it too costly …

Restoring The Genetic Commons: A Common Sense Approach To Biotechnology Patents In The Wake Of Ksr V. Teleflex , Anna Bartow Laakmann

Michigan Telecommunications & Technology Law Review

In this Article, I argue that a new approach to biotechnology patenting is necessary to fully realize the tremendous potential of recent advances in our understanding of the human genome. Part I places the gene patenting debate in context by highlighting the key landmarks that have shaped the biotechnology industry and outlining the products and stakeholders that comprise the industry. Part II describes the current state of the law on biotechnology patents, summarizing the Federal Circuit's application of the various doctrines that collectively define the patent landscape's parameters. In this Part, I explain how the Federal Circuit's jurisprudence is tied …

Upstream Patents = Downstream Bottlenecks, Rebecca S. Eisenberg, Michael A. Heller

Articles

Thirty years ago in Science, Garrett Hardin introduced the metaphor "tragedy of the commons" to help explain overpopulation, air pollution, and species extinction. People often overuse resources they own in common because they have no incentive to conserve. Today, Hardin's metaphor is central to debates in economics, law, and science and powerful justification for privatizing commons property. While the metaphor highlights the cost of overuse when governments allow too many people to use a scarce resource, it misses the possibility of underuse when governments give too many people rights to exclude others. Privatization can solve one tragedy, but cause another.