Avoiding the Tragedy of the Anticommons: Collective Rights Organizations, Patent Pools and the Role of Antitrust

Abstract

The growing importance of intangible property and the development of new technologies come together with the current trend of covering by intellectual property rights (IPRs) an increasingly broader area of resources. Heller showed up that the transition from commons to privatization generates a situation in which too many property rights are owned by too many parties, a spiral of overlapping IPRs in the hands of different owners, with the consequence to obstacle future innovation. The need to coordinate various owners, overcoming transaction costs, strategic behaviours and cognitive biases, supports the rising diffusion of collective rights organizations, a myriad of formal and informal institutions designed to regularize technology transactions and break relational bottlenecks: they include the patent pooling, that is the arrangement among multiple patent holders to aggregate their patents making them available to each member. Antitrust authorities have come closer to a rule of reason analysis towards patent pools, namely a balanced approach able to weigh procompetitive benefits and anticompetitive effects: even if pooling may enhance static and dynamic efficiency by integrating complementary technologies, reducing transaction costs, clearing blocking positions and avoiding costly infringement litigation, at the same time it may be a way to conspire to suppress competition.

Keywords: Antitrust, IP, Anticommons, Collective Rights Organizations, Patent Pool

JEL Classification: K21, L41, L51, O31, O34