Eisenberg, Rebecca S. --- "Anticommons, transaction costs, and patent aggregators" [2019] ELECD 1931; in Depoorter, Ben; Menell, Peter; Schwartz, David (eds), "Research Handbook on the Economics of Intellectual Property Law" (Edward Elgar Publishing, 2019) 27

Book Title: Research Handbook on the Economics of Intellectual Property Law

Editor(s): Depoorter, Ben; Menell, Peter; Schwartz, David

Publisher: Edward Elgar Publishing

Section: Chapter 2

Section Title: Anticommons, transaction costs, and patent aggregators

Author(s): Eisenberg, Rebecca S.

Number of pages: 20

Abstract/Description:

An anticommons is a fragmented allocation of property rights in which resources are prone to underuse because it is costly to assemble necessary permissions to put resources to use. The more rights holders and the more varied their entitlements, the more challenging it is to avoid waste through bargaining. The patent system continuously creates new rights for new claimants, with limited opportunity to establish consensus valuations as technology changes. Patent aggregation might seem like an effective market solution to the problem of fragmented ownership, yet the rise of patent aggregators seems to have done more to reduce costs of assertion by patent owners than to reduce costs of clearing rights by technology users. The result may be a greater risk of underuse as subsequent innovators need to evaluate and clear more rights that they might otherwise have ignored with little risk of assertion in the absence of aggregation