Patent critics often use the term Tragedy of the Anticommons, a famous prediction by Michael Heller and Rebecca Eisenberg of the stifling effects of increased patenting resulting in scenarios where users must secure rights from many patent owners to use inventions. The transaction costs of securing fragmented patent rights results in under-use of inventions, and thus a slowdown in innovation.

Critics of the Tragedy of the Anticommons theory include Professor Edmund Kitch from the Univ. of Virginia, who recently stated: "Surely by now commentators concerned that the Tragedy of the Anticommons is an actual problem should be able to point to particular patents or the licensing policies of particular patent owners that have slowed progress in the field." Professor Kitch's call for empirical evidence of a Tragedy of the Anticommons was not answered by a recent survey by the American Association for the Advancement of Science (AAAS), titled The Effects of Patenting in the AAAS Scientific Community (S. Hansen, A. Brewster, J. Asher, M. Kisielewski, 2006).

The context of the survey is that historically, academic scientists shared research findings and inventions through “free and open” channels, such as journal publications and conference presentations. Academic research often had little commercial value. Traditionally, the commercial sector patented and commercialized inventions. The AAAS survey, in part, looks at the effects of research patenting from Bayh-Dole, which streamlined the process for patenting of university research, and a series of decisions at the USPTO and federal courts that expanded patentable subject matter; including biological components, which could serve both research and commercial pharmaceutical purposes.

Specifically, the study addresses the fact that: “In the US, the past two decades have seen a rise in the number of patents—most notably in the life sciences—by both industry and academic scientists.” It addresses the fact that: “Much concern has been raised that this increase in patenting will create an “anti-commons” effect, in which noncommercial academic research is hindered by the imposition of long negotiations and expensive licenses to acquire necessary research inputs from either industry or academia.”

The important finding is that despite growth of patenting, the study reports no findings of an Anticommons in scientific research.
-The majority of academic respondents reported that material transfer agreement (MTA), simply the transfer of a physical being or organism between institutions, as the most common way of acquiring patented technology. Industry respondents found nonexclusive licensing was the most common method of acquiring patented technology. Exclusive licensing was the least used method for technology transfer.
-Between MTAs, nonexclusive licensing and exclusive licensing, nonexclusive licensing accomplished technology transfer most quickly. Exclusive licensing took the greatest time for transfer.
-While respondents reported that patents are the most common means to protect IP, the form of technology transferred differed between sectors, with licensing is more common in industry than academia.
-The study suggests that higher patent licensing in industry may be due to the fact “industry respondents reported creating and holding more IP than academic respondents, as well as the fact that industry relies more on licensing, which entails greater and longer negotiations than other more traditional and informal means of technology transfer still used in academia.”

In total, 1111 AAAS members responded to the survey, of whom 76% reported they actively conduct research, manage research, or specialize in IP through a technology transfer office. Respondents included those categorized those by AAAS as those working in engineering, mathematics, computer science, physics, astronomy, biological sciences, medical sciences.
-46% of respondents reported that since 2001, they discovered or created technology possibly eligible for IP protection. Industry respondents outnumbered their academic counterparts in this category. The highest number of potentially IP protected technology came from math, computer science and engineering.

Patenting appears to increase research exemptions.
-32% of those who licensed their technology included a research exemption, compared to 25% of overall respondents who disseminated their technology through other means.

While patents constitute the most common method of IP, non-licensing to other research arose from the patent holder’s desire to self-commercialize or develop the technology.
-Of the 55% of respondents who reporting using patents to protect their IP, 41% described their most important patents as research tools, technology used to conduct research or analysis rather than the subject of research itself.
-24% of respondents used a patented technology in their research since 2001. Industry respondents acquired more patents for research than their academia counterparts.
-65% of respondents who had not disseminated their patents reported that they were commercializing or developing it themselves.

posted by Noel Le @ 11:23 AM | Patents

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