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- Title
THE "TRAGEDY OF THE ANTICOMMONS" FALLACY: A LAW AND ECONOMICS ANALYSIS OF PATENT THICKETS AND FRAND LICENSING.
- Authors
Teece, David J.
- Abstract
Heller introduced the "anticommons" concept in the late 1990s, based on Hardin's earlier "commons" concept, to refer to the situation in which numerous entities control the rights to use some asset or related cluster of assets. Heller and Rosenberg argued that, in such situations, users would need permission from multiple rights holders in order to use the asset(s), and that the difficulties of coordination would lead to inefficient underuse, leading to what they termed the "tragedy of the anticommons." This Article addresses the limitations of the "tragedy of the anticommons" arguments in the context of licensing of patents related to some industry standard for which the patent holders have committed to license their patents on "fair, reasonable and nondiscriminiatory" ("FRAND") licensing terms. This Article identifies several real-world examples where Heller and Eisenberg's prediction of underuse are not borne out in practice, and explain why real-world institutions that have emerged have largely solved the problem.
- Subjects
UNITED States; PATENT licenses; PATENT law; PATENT policy; INTELLECTUAL property policy; UNITED States. Patent &; Trademark Office; EBAY Inc. v. MercExchange LLC
- Publication
Berkeley Technology Law Journal, 2017, Vol 32, Issue 4, p1489
- ISSN
1086-3818
- Publication type
Article
- DOI
10.15779/Z38RR1PM7N