New Moves in ‘Legal Jujitsu’ to combat the Anti-Commons

Most of the discussion and debate among legal scholars and economists concerning the so-called ‘anticommons’ --following Heller and Eisenberg (1998), has been restricted to questions about the existence and seriousness of obstacles to discovery, invention and innovation that result from “over-patenting.” But the anti-commons as a conceptualization of the perverse resource allocation effects of the distribution of private ownership rights has a considerably wider potential range of empirical relevance, and warrants commensurately more careful study. This paper seeks first to underscore that analytical point by considering a stylized model of the impediments imposed upon the conduct of research by the burdensome licensing charges that can result from the distribution of monopoly rights over multiple complementary database resources. The approach recognizes the emergence and growing role of digital databases as critical facilities of the research infrastructure in many scientific and technical domains, and points to the generality of the phenomenon of “multiple marginalization” due to the uncoordinated exercise of market power by database owners in setting licensing charges. The latter is the economic core of the anti-commons problems created by intellectual property rights and technical impediments to federation of databases.
Dealing separately with THE several analytically distinct aspects of the “anti-commons problems” that arise from the distribution of IP ownership acknowledges that such inefficiencies in the allocation of research resource as they would occasion may differ in seriousness, be amenable in different degrees to market solutions, or, failing that, require distinctive institutional remedies. Focusing within this framework upon on the differential incidence of “multiple-marginalization” effects on exploratory and applications-oriented R&D, this paper points to the need for a more nuanced approach in empirical efforts to assess the ways in which this and other cost-imposing dimensions of the anti-commons problem would manifest themselves. Viewed from this perspective, the conclusions drawn from the questions posed to academic researchers by the pioneering survey- and interview-based studies of the impact of patented research tools in the biomedical area seem to be overly sanguine, in supposing that the existence of a “serious anti-commons” effect would take the form of the blocking or abandonment of research projects, for such events are unlikely when the obstacles can be foreseen and avoided. More subtle but cumulatively distorting long term effects on the advance of fundamental science are a likely consequence, however, for, as seen from an analysis of the “anti-commons effect in databases, the potential for multiple marginalization and royalty stacking places especially heavy burdens on “exploratory research” compares with focused applications R&D.
The discussion of suitable policy measures in the paper’s aims to (a) clarify the meaning and practical significance of the idea of legally creating a “information common” for scientific and technical research communities by means of common-use contracting, (b) inquire into the conditions under which these are likely to emerge spontaneously as “clubs” or “pools” among holders of IPR in research tools and databases, rather than having to be pro-actively encourage by public agencies, and (c) consider specific policy measures that would be appropriate and effective in promoting participation of universities and other public research organizations in IPR licensing arrangements of that kind. The latter proposal envisages an indirect route to reforming the workings of the Bayh-Dole and Stevenson-Wydler Acts in the U.S.-- and parallel legislative measures introduced bya number of OECD countries, by setting out specific institutional arrangements for forming and governing efficient (non-abusive) “scientific research commons” (SRCs) based upon contractual agreements among holders of IP rights in research tools.

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