A Comparative Analysis: Current Solutions to the Anticommons Threat

By Marshall, Chase A. | The Journal of High Technology Law, July 2012 | Go to article overview

A Comparative Analysis: Current Solutions to the Anticommons Threat


Marshall, Chase A., The Journal of High Technology Law


I. INTRODUCTION II. CURRENT PATENT SYSTEM AND PROBLEMS PRESENTED TO THE BIOTECHNOLOGY FIELD   A. History of the Current Patent System and its Drawbacks   B. Problems Faced by the Biotechnology Field Regarding Patents   and Material Transfer III. CURRENT "SOLUTIONS" TO THE THREAT OF THE ANTICOMMONS   A. Patent Pools   B. Patent Commons   C. Open Source IV. ANALYSIS   A. Number of Patents Being Granted and Patent Thickets   B. Scope of Patents and the Number of Patents Involved in a   Biotech Project   C. Reach Through License Agreements (RTLAs)   D. Material Transfer Agreements (MTAs) V. WHICH SYSTEM BEST SOLVES THE THREAT OF THE ANTICOMMONS?   A. Patent Pools   B. Open Source Patenting   C. Patent Commons VI. CONCLUSION 

Cite as 12 J. HIGH TECH. L. 487 (2012)

I. Introduction

There is a growing concern and discontentment for the current patent system, particularly in the field of biotechnology. In 1998, Michael Heller and Rebecca Eisenberg coined the phrase "The Tragedy of the Anticommons" in their article in Science while discussing the potential problems that can arise when too many broad patents are assigned for early-stage scientific research. (1) The idea of the anticommons arose, in part, due to liberal granting of patents by the U.S. Patent and Trademark Office ("USPTO") in combination with the quick development of biotechnology. (2)

Heller and Eisenberg mention two mechanisms that can give rise to an anticommons: the first is by creating too many concurrent fragments of intellectual property rights ("IPR"), known as "patent thickets." (3) The second mechanism is permitting "upstream" patent owners to stack licenses onto future discoveries made by "downstream" users. (4) One of the main concerns for the public, which has helped bring this issue to light, is the threat that these upstream patent thickets can create bottlenecks and limit the production of, and ultimately access to, healthcare end-products. (5) The threat of an anticommons has led to the development of some creative solutions to this looming problem. (6)

Ever since the realization that patents may actually serve to inhibit scientific progress rather than promote it, there has been much discussion and insight introduced concerning the veracity of this concept. (7) There have been a number of solutions presented, and enacted, to the problem of the anticommons, and in Part II this Note will give a brief description of the current patent system and highlight the prominent problems that it presents to the biotechnology field. Part III will introduce and describe three main alternative systems to the current patent system in regard to the field of biotechnology. Part IV will analyze and compare each of these alternative systems and determine which is the most effective solution to each of the particular problems within the current patent system. Part V will analyze which alternative system best solves the overall threat of the anticommons problem.

II. Current Patent System and Problems Presented to the Biotechnology Field

A. History of the Current Patent System and its Drawbacks

The Founding Fathers wrote into the Constitution a clause that gave Congress the power to assign to authors and inventors an exclusive right to their respective writings and discoveries for a limited time. (8) This clause led to the Patent Act of 1790, which permitted a patent on "any useful art, manufacture, engine, machine or device, or any improvement therein not before known or used...." (9) Congress soon thereafter amended the patent law, authored by Thomas Jefferson, stating the statutory subject matter of the Act as "any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement [thereon] ... not known or used before the application...." (10) The broad language of the Act embodied Jefferson's philosophy that "ingenuity should receive a liberal encouragement. …

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A Comparative Analysis: Current Solutions to the Anticommons Threat
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