|By:||Doh-Shin Jeon (Toulouse School of Economics)
Yassine Lefouili (Toulouse School of Economics)
We study bilateral cross-licensing agreements among N(> 2) firms that engage in competition after the licensing phase. It is shown that the most collusive cross-licensing royalty, i.e. the one that allows the industry to achieve the monopoly profit, is sustainable as the outcome of bilaterally efficient agreements. When the terms of the agreements are not observable to third parties, the monopoly royalty is the unique symmetric bilaterally efficient royalty. However, when the terms of the agreements are public, the most competitive royalty (i.e. zero) can also be bilaterally efficient. Policy implications regarding the antitrust treatment of cross-licensing agreements are derived from these results.
|Keywords:||Cross-Licensing, Collusion, Antitrust and Intellectual Property|
|JEL:||L44 O33 O34|
Lihui Lin (2011) “Licensing Strategies in the Presence of Patent Thickets."Journal of Product Innovation Management, Volume 28, Issue 5, pages 698–725, September 2011. DOI: 10.1111/j.1540-5885.2011.00835.x. link to Wiley;；＊;
Notes by yinung
本文之理論模型是以 2-stage, backward-induction 的方式來推理，其模型之數學形式，可供參考。
文獻上未討論不同 licensing contracts 對 patent thickets, royalty stacking, double marginalization 之影響。
賽局理論模型； 研究下游廠商向上游尋求 N 個 licenses 授權, 其討論 5 種 licensing contract 如下：
- Quantity-Based Royalty Licenses
下游每單位 output 授權費 u
- Downstream ﬁrm with no bargaining power
上游完全決定 u (given 下游只能全盤接受， 在本文中稱之 researvation payoff = 0）
- Downstream ﬁrm with any reservation payoff
上游只要選一個 u 使下游的 payoffs >= reservation payoffs 即可；故下游 bargaining power 會大，則 u 會愈小
- Revenue-Based Royalty Licenses (by Goldscheider, 1995)
- Proﬁt-Based Royalty Licenses
the price of the ﬁnal product is independent of the royalty rate and the distribution of bargaining power.
- Fixed-Fee Licenses
just like a proﬁt-based royalty license, the price of the downstream product is not distorted by upstream costs.
- Hybrid Licenses: Royalty plus Fixed Fee
the introduction of a new product or service often requires many complementary technologies
Many key industries (e.g., biomedical, pharmaceuticals, telecommunications, and information technologies) are characterized by cumulative innovations, where the introduction of a new product or service often requires many complementary technologies. When these technologies are protected by intellectual property rights owned by many firms, patent thickets exist, which researchers have argued may hinder the development of cumulative innovations. Specifically, patent thickets may lead to excessive royalty burdens for potential licensees, which is called “royalty stacking,” and if such costs are passed on to consumers, prices of products based on cumulative technologies will be driven up, dubbed as “double marginalization.” The literature, however, does not address these issues under different forms of licensing contracts.
This article develops a game-theoretic model where a downstream firm seeks to license N patents that read on its product from upstream firms. It discusses a variety of licensing forms widely used in practice and attempts to discover whether royalty stacking and double marginalization occur under these forms of licenses. It also studies the impact of bargaining power between parties. It is found that when patent ownership becomes more fragmented, neither royalty stacking nor double marginalization occurs under profit-based royalty, fixed fee, and hybrid licenses. Such problems occur only under pure quantity-based or pure revenue-based royalty licenses when the downstream firm’s bargaining power is low. It is also shown that no matter how fragmented the ownership structure of patent is, hybrid licenses consisting of a fixed fee and a quantity- or revenue-based royalty rate lead to the same market outcomes as a fully integrated firm that owns all the patents and the downstream market.
This article has interesting implications for both research and practice. First, the results show that even under the same patent ownership structure, different forms of licenses lead to quite different market outcomes. Therefore, it is suggested that firms and policy makers pay more attention to contractual forms of licenses when trying to minimize the negative impact of patent thickets. Second, the extant literature has largely assumed that quantity-based royalties are used, where double marginalization is the most severe. In practice, revenue-based royalties are most common, under which double marginalization is much milder. Third, the results show that patent pools can be most effective in mitigating royalty stacking and double marginalization when quantity-based or revenue-based royalties are the sole or primary payment form, especially when downstream firms have low bargaining power.
- Associated Press Financial Wire. 2007. Qualcomm announces record third quarter fiscal 2007 results. July 25.
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- Lemley, M. A., and C. Shapiro. 2007. Patent holdup and royalty stacking. Texas Law Review 85: 1991–2049.
- Lessig, L. 2001. The future of ideas: The fate of the commons in a connected world. New York: Random House.
- Levine, A. 2009. Licensing and scale economies in the biotechnology pharmaceutical industry. Working paper, Stanford University.
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- Port, K. L., J. Dratler, F. M. Hammersley, T. P. McElwee, C. R. McManis, and B. A. Wrigley. 2005. Licensing intellectual property in the information age (2nd ed.). Durham, NC: Carolina Academic Press.
- Preston, R. 2005. Profit pending. Network Computing, December 8.
- Qualcomm Inc. 2008. Qualcomm business model: A formula for innovation & choice. White paper. Available at: http://www.qualcomm.com/documents/files/qualcomm-business-model-formula-innovation-choice.pdf.
- Ricadela, A. 2006. Microsoft IP: A $900 million patent deficit. InformationWeek, April 3.
- Seget, S. 2005. Biotechnology licensing: How has the balance of power shifted? Spectrum: Pharmaceutical Industry Dynamics, Decision Resources, Inc. October 21.
- Shapiro, C. 2001. Navigating the patent thicket: Cross-licenses, patent pools, and standard-setting. In Innovation policy and the economy, Vol. 1, ed. A.Jaffe, J.Lerner, and S.Stern. Cambridge, MA: National Bureau of Economic Research.
- Slind-Flor, V. 2004. Goldscheider’s rule. IP Law & Business, August.
- Stone, B. 2004. Nickels, dimes, billions: Big tech companies are raking in big bucks—a little at a time—by charging fees for use of their innovations. Newsweek (web exclusive), August 2. Available at: http://www.newsweek.com/2004/08/01/nickels-dimes-billions.html.
- Via Licensing Corp. 2008. Via Licensing announces patent licensing terms for MPEG Surround. Press release. San Francisco, September 12. Available at: http://www.vialicensing.com/user-license-docs/newsreleasespdf/09_12_2008%20Via%20Licensing%20Announces%20Patent%20Licensing%20Terms%20for%20MPEG%20Surround.pdf.
Jay Pil Choi (2009) “Alternative damage rules and probabilistic intellectual property rights: Unjust enrichment, lost profits, and reasonable royalty remedies." Information Economics and Policy, Volume 21, Issue 2, June 2009, Pages 145–157. http://dx.doi.org/10.1016/j.infoecopol.2008.11.001;
This paper investigates how alternative damage rules in patent infringement cases shape competition when intellectual property rights are probabilistic. More specifically, I develop a simple model of oligopolistic competition to compare two main liability doctrines that have been used in the U.S. to assess infringement damages – the unjust enrichment rule and the lost profit rule. I show that the lost profit rule provides more protection to the patent holder than the unjust enrichment rule if the patent holder and infringer are equally efficient. When the lost profits from the infringement cannot be proved, the court accepts a “reasonable royalty rate” that would have been negotiated in a hypothetical bargaining situation as an alternative measure of damage. However, I point out that the concept of “reasonable” royalty rates lacks logical consistency when intellectual property rights are probabilistic.
Einer Elhauge (2008) “Do Patent Holdup and Royalty Stacking Lead to Systematically Excessive Royalties?" Journal of Competition Law & Economics, 4 (3): 535-570. doi: 10.1093/joclec/nhn027; link to CLER. download PDF.
==notes by yinung==
see also Shapiro (2010).
這篇亦有提到 patent 類似分餅 ultimatum game 遊戲
Some recent literature has concluded that patent remedies result in systematically excessive royalties because of holdup and stacking problems. This article shows that this literature is mistaken. The royalty rates predicted by the holdup models are often (plausibly most of the time) below the true optimal rate. Further, those predicted royalty rates are overstated because of incorrect assumptions about constant demand, one-shot bargaining, and informational symmetry. Although this literature concludes that overcompensation problems are exacerbated by doctrines measuring damages using past negotiated royalties, in fact such doctrines exacerbate undercompensation problems. Undercompensation problems are further increased to the extent that juries cannot measure damages with perfect accuracy, a problem that persists even if damages are just as likely to be overestimated as underestimated. Nor do the royalty rates predicted by the holdup model apply if there is competition in the downstream product market or upstream market for inventions. Royalty stacking does not lead to royalties that exceed the optimal rate, contrary to this literature, but in fact tends to produce royalties that are at or below the optimal rate.
A simple model is developed to study royalty negotiations between a patent holder and a downstream firm whose product is more valuable if it includes a feature covered by the patent. The downstream firm must make specific investments to develop, design, and sell its product before patent validity and infringement will be determined. The hold-up component of the negotiated royalties is greatest for weak patents covering a minor feature of a product with a high margin between price and marginal cost. For weak patents, the hold-up component of negotiated royalties remains unchanged even if negotiations take place before the downstream firm designs its product. The analysis has implications for the use of injunctions in patent infringement cases.
Binmore, Ken, Avner Shaked, and John Sutton. 1989. “An Outside Option Experiment,” 104(4) Quarterly Journal of Economics 4753–70. link to PDF.
Elhauge, Einer. 2008. “Do Patent Holdup and Royalty Stacking Lead to Systematically Excessive Royalties?” 4(3) Journal of Competition Law and Economics 3535–70.
Federal Trade Commission. 2003. To Promote Innovation: The Proper Balance Between Competition and Patent Law and Policy. October, Available at: http://www.ftc.gov/os/2003/10/innovationrpt.pdf.
Gallini, Nancy. 2002. “The Economics of Patents: Lessons From Recent U.S. Patent Reform,” 16(2) The Journal of Economic Perspectives 2131–54.
Hall, Bronwyn, and Rose Marie Ziedonis. 2001. “The Patent Paradox Revisited: An Empirical Study of Patenting in the U.S. Semiconductor Industry, 1979–1995,” 32 The Rand Journal of Economics 101–28.
Heller, Michael, and Rebecca Eisenberg. 1998. “Can Patents Deter Innovation? The Anti-Commons in Biomedical Research,” 280 Science 698–701.
Lemley, Mark, and Carl Shapiro. 2007a. “Patent Hold-Up and Royalty Stacking,” 85(7) Texas Law Review 71991–2049. Available at: http://faculty.haas.berkeley.edu/shapiro/stacking.pdf. (see also Patent Hold-Up and Royalty Stacking: Reply)
Lemley, Mark, and Carl Shapiro. 2007b. “Patent Hold-Up and Royalty Stacking: Reply,” 85(7) Texas Law Review 72163–73.
Shapiro, Carl. 2001. “Navigating the Patent Thicket: Cross-Licenses, Patent Pools, and Standard-Setting” in Jaffe Adam Lerner Joshua and Stern Scott, eds., Innovation Policy and the Economy National Bureau of Economics. Available at: http://faculty.haas.berkeley.edu/shapiro/thicket.pdf.
Sidak, J. Gregory. 2008. “Holdup, Royalty Stacking, and the Presumption of Injunctive Relief for Patent Infringement: A Reply to Lemley and Shapiro,” 92(3) Minnesota Law Review 3714–48.
Lemley, Mark A., and Carl Shapiro. 2005. “Probabilistic Patents." Journal of Economic Perspectives, 19(2): 75-98. DOI: 10.1257/0895330054048650; URL: http://www.aeaweb.org/articles.php?doi=10.1257/0895330054048650
==Notes by yinung==
多年前就知道 Carl Shapiro 轉往研究 IP 相關之經濟議題, 不過卻到今日才略領其大意…
為何稱做 “Probabilistic" patents
Virtually all property rights contain some element of uncertainty…. There are two fundamental dimensions of uncertainty:
1) uncertainty about the commercial significance of the invention being patented, and
2) uncertainty about the validity and scope of the legal right being granted.
(p.81)…Many patent applications, and indeed patents themselves, are like lottery tickets. Inventors who are uncertain of the commercial significance…Two of the most common practices used by patentees to increase their chances of winning the patent lottery are continuations and a proliferation of closely related patents… increasing the chance that
their patents will cover technology that becomes widely adopted by market participants.
Patent 訴訟不見得不好, 因為有外部性
… because litigating patent disputes to completion tends to generate positive externalities, by clarifying the limits of patent protection if the patent is upheld or encouraging wider use of the innovation if the patent is invalidated.
為何大部份的 patent 的價值都很低, 但申請數量卻眾多?
1. 申請者不確定哪些會有價值 (Scherer, 2001; Denton and Heald, 2004)
2. 申請者不知道其價值 (Rivette and Kline, 2000)
3. 數量多有利於財務操作和增加市場評價 (Lemley, 2000; Hall, Jaffe and Trajtenberg, 2005)
4. 當做 signaling mechanisms (Long, 2002)
5. 防禦性功能 “defensive” use of patents to deter others from suing (Hall and Ziedonis, 2001; Lemley, 2001)
6. 綁在 patent portfolio 中 (Parchomovsky and Wagner, 2004)
Why do inventors file for many patents that turn out to have little or no value? Surely part of the reason is that patent applicants do not know which patents will be valuable and which will be worthless (Scherer, 2001; Denton and Heald, 2004). But other explanations have been offered: a failure to understand the value of patents (Rivette and Kline, 2000); the use of patents to obtain financing and boost market valuation (Lemley, 2000; Hall, Jaffe and Trajtenberg, 2005); the use of patents as signaling mechanisms (Long, 2002); and the “defensive” use of patents to deter others from suing (Hall and Ziedonis, 2001; Lemley, 2001). Even individually weak patents might have value as part of a large patent portfolio, because the portfolio can be licensed as a block or can serve to deter lawsuits (Parchomovsky and Wagner, 2004).
專利入場券 patent ticket
… “patent thicket," in which hundreds of patents can apply to a single product (Shapiro, 2001; FTC, 2003). …One way to cut through the patent thicket is for incumbents with extensive patent portfolios to enter into broad cross-licenses (that is, exchanges of roughly symmetric patent positions) to “clear” the thicket.
Without such cross-licenses, the result is inefficient “royalty stacking,” in which a manufacturer without its own patent portfolio must pay royalties to a number of separate companies.
申請者比較會有個別資訊 …applicants appear to have considerable private information at an early stage about the likely value of at least some of their patents. … Allison, Lemley, Moore and Trunkey (2004) find… most significant predictors of ultimate value observable to researchers are the industry, the number of prior art references, the number of claims in the patent and the time invested in prosecution of the patent.
使專利失效 invalidating a patent 會有正外部性 (即會 under-supplied), 因此被控之廠商通常會尋求和解, 而不是興訟
… challenges to patents are undersupplied (Gilbert, 2004; Farrell and Merges, 2004)
The key insight is that invalidating a patent generates significant positive externalities, and activities that generate positive externalities are undersupplied. There are very strong reasons to believe that challenges to patents are undersupplied (Gilbert, 2004; Farrell and Merges, 2004).
Economists often assume that a patent gives its owner a well-defined legal right to exclude others from practicing the invention described in the patent. In practice, however, the rights afforded to patent holders are highly uncertain. Under patent law, a patent is no guarantee of exclusion but more precisely a legal right to try to exclude. Since only 0.1% of all patents are litigated to trial, and since nearly half of fully litigated patents are declared invalid, this distinction is critical to understanding the economic impact of patents. The growing recognition among economists and legal scholars that patents are probabilistic property rights has significant implications for our understanding of patents in four important areas: (1) reform of the system by which patents are granted; (2) the legal treatment of patents in litigation; (3) the incentives of patent holders and alleged infringers to settle their disputes through licensing or cross-licensing agreements rather than litigate them to completion; and (4) the antitrust limits on agreements between rivals that settle actual or threatened patent litigation.
Patrick Rey and David Salant(2012) “Abuse of dominance and licensing of intellectual property." International Journal of Industrial Organization,Volume 30, Issue 6, November 2012, Pages 518–527. DOI. Other PDF.
We examine the impact of the licensing policies of one or more upstream owners of essential intellectual property (IP hereafter) on the variety offered by a downstream industry, as well as on consumers and social welfare. When an upstream IP monopoly increases the number of licenses, it enhances product variety, adding to consumer value, but it also intensifies downstream competition, and thus dissipates profits. As a result, the upstream IP monopoly may want to provide too many or too few licenses relative to what maximizes consumer surplus or social welfare.
With multiple IP owners, royalty stacking increases aggregate licensing fees and thus tends to limit the number of licensees, which can also reduce downstream prices for consumers. We characterize the conditions under which these reductions in downstream prices and variety are beneficial to consumers or society.
Buccafusco, Christopher J. and Sprigman, Christopher Jon ,Valuing Intellectual Property: An Experiment: An Experiment (March 11, 2010). Cornell Law Review, Vol. 91, 2010; Chicago-Kent Intellectual Property, Science & Technology Research Paper No. 10-029; Virginia Law and Economics Research Paper No. 2010-04. Available at SSRN: http://ssrn.com/abstract=1568962
Noted by Yi-Nung
實驗 A. Contest “Eyes Closed” Method
1. 找10個人當 Author 各寫一首詩, 假裝參加 haiku-writing competition 競賽, 第1名可得獎金 $50.
2. 找 10 個人當 bidder, 每一個 author 寫的詩, 指定給一個 bidder,
3(a). Bidder 去評估 (被指的那一首) 詩是否能得獎, 然後「願意付多少錢」(WTP)得到這個機會
4. Author 則選擇「願意接受多少錢」(WTA) 賣掉這個得獎的機會 (但仍然保留著作權)
5. 另外找人當 Owner, 每人隨機指定 1 首 Author 寫的詩, 並令其回答「願意接受多少錢」(WTA) 賣掉這個得獎的機會
實驗 B. The Contest: “Eyes Open”
與上述 5 點相同, 除了所有的人都看過所有的 1o 首詩 (perfect information?)
實驗 A 和 B 的結果: WTP 和 WTA 間有很大的統計顯著差異 (gap) (顯示支持 Endownment Effect);
而角色不同的 Author 和 Owner 之間的 WTA 並無顯著差異。
實驗 C. The Lottery: “Blind”
與上述 5 點相同, 但是不是以評審方式決定哪一首詩得獎, 而告訴全部人, 此次是用抽獎的方式決定誰得獎
(照理說, 這個 treatment 應該可以去除 Endowment Effects)
實驗 C 的結果: WTA/WTP 的 gap 更大! (即Endowment Effects 仍然存在) 但是 Authro、Owner、Buyer 三者的 WTA/WTP 都小於實驗 A/B。
In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. Perhaps the most important research in this field is that related to the “endowment effect” – the discovery that, contrary to economic predictions, people value the same object more when they own it than when they do not.
To date, the endowment effect has been observed for a variety of goods including mugs, lottery tickets, and hunting permits. Our experiment establishes a substantial valuation asymmetry between authors of poems and potential purchasers of them. As we explain in detail in the article, we constructed a market for the poems that was modeled on a market for licensing IP. The observed differences in valuation indicate that IP licensing markets may be substantially less efficient that previously believed. Our results suggest that (1) the preferences of IP creators, owners, and purchasers are unstable and dependent on the initial distribution of property rights in creative works, and (2) large gaps arise between purchasers’ willingness to pay and sellers’ willingness to accept even though the poems are non-rival property and the contemplated alienation of the property is therefore only partial.
Our findings suggest that private transactions in creative goods may face significant transaction costs arising from cognitive biases that drive the price that creators and owners of IP are likely to demand for transfers considerably higher than what buyers will, on average, be willing to pay. This does not mean, of course, that transactions in IP will not take place – we see such transactions happening out in the world every day. Our research suggests, however, that IP transactions may occur at a level that is significantly suboptimal, and that the baleful effect of cognitive and affective biases is likely to be more serious for transactions in works of relatively low commercial value, or for which no well-established custom or pattern helps to inform valuation. These results have considerable implications for the structuring of IP rights, IP formalities, IP licensing, and fair use.
Christopher Buccafusco and Christopher Jon Sprigman (2011) THE LICENSING OF INTELLECTUAL PROPERTY: The Creativity Effect, 78, U. Chi. L. Rev. 31.