Abstract
Recent buyouts of Nortel’s patent portfolios by a consortium including Microsoft, Apple, and Sony and Motorola Mobility’s by Google have focused attention on the role of intellectual property (IP) in business strategies. IP changed a lot these last 15 years. New patent-eligible subject matters (biotechnology, software) and regulatory developments in the United States have since the mid-1980s led to a rapid growth of patenting, to a fast raise of patents’ value but also to the deterioration of their average quality. It also led to the massive use of strategic patenting by firms. Globalization, network organizations, and generalized subcontracting can explain part of an evolution that could have a significant impact on the pace and direction of innovation. These changes create barriers to new entrants, divert R&D budgets from research, and bring major uncertainty to new entrants who never know whether they infringe a patent or not. Universities that file patents may neglect basic research, while firms that indulge in strategic patenting spend an increasing proportion of their R&D effort in legal expenses and defensive strategies. In short, they could slow the pace of innovation and harm those industries that innovate the most.
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Notes
- 1.
The data used in this chapter are all of US origin. This choice is justified because the changes described here took their source in the United States. It is in this country that emerged a market for patents, and it is there that most of its specialists work: 72% of brokers are installed in the USA (Monk 2009). This is due to the size of the US market and to the specifics of its legal environment.
- 2.
And may continue to do so as US courts opened the door to the patentability of diagnoses as in Mayo v. Prometheus Labs.
- 3.
These companies are more numerous that one can imagine, and not just American. They have grown since one of them got, through transaction, $162 million from RIM, the Blackberry producer. A specialist in these issues identified 51 NPEs in the US (Shestra 2010).
- 4.
Once a patent is granted by the European Patent Office, it must be validated in each country in which the applicant seeks protection. It usually means translation in the national language.
- 5.
Hostility to protectionism was particularly strong in Britain, where it gave birth to an abolitionist movement and in Germany. Defenders of patents saw it a protection of the industry similar to customs duties.
- 6.
This thesis is supported by recent studies that establish a correlation between the productivity and mobility of researchers (Hoisl 2007).
References
Barboza D (2011) Entrepreneur’s rival in China: the state. The New-York Times, December 6
Bessen J, Hunt R (2007) An empirical look at software patents. J Econ Manage Strateg 16(1):157–189, 03
Bessen J, Hunt R (2008–2009) Of patents and property. Regulation 31(4):18–27
Bird R, Cahoy D (2007) The emerging BRIC economies: lessons from intellectual property negotiation and enforcement. Northwest J Technol Intell Prop 5(3)
Dallman, A (2011) Is “the 25% rule’ still alive after Uniloc”, Patent lawyer Blog, 27 September 2011
Darrow J (2007) The patentability of enantiomers, implications for the pharmaceutical industry. Stanf Technol Rev 2:10
Dey S (2007) Are patents discouraging innovation, SSRN
Feder B (2002) Business, patent donations are new corporate gift. The New-York Times, November 1, 2002
Gilson R (1998) The legal infrastructure of high technology industrial districts: Silicon Valley, Route 128, and covenants not to compete, Stanford Law School
Giuri P et al (2006) Everything you always wanted to know about inventors (but never asked), evidence from the PatVal-Eu survey, Discussion paper, 2006–11, Munich School of Management
Graham P (2006) Are software patents evil, Paul Graham blog
Graham SJH, Sianr, Merges RP, Samuelson P (2009) High technology entrepreneurs and the patent system: results from the 2008 Berkeley patent survey. Berkeley Technol Law J 24:255–327
Gutierrez H (2011) Android patent infringement: licensing is the solution. Microsoft on the issues, 21 mars 2011
Haeussler C, Harhoff D, Müller, E To be financed or not … The role of patents for Venture capital financing, discussion papers 253, SFB/TR 15 Governance and the Efficiency of Economic Systems, 2009
Heller A, Eisenberg R (1998) Can patents deter innovation? The anticommons in biomedical research. Science 280(5364):698–701
Hoisl K (2007) Does mobility increase the productivity of inventors. Discussion paper 2006–13, Munich School of management
Hounshell DA, Smith JK (1988) Science and Corporate Strategy, Du Pont R&D, 1902-1980, Cambridge, UK, Cambridge University Press
Kamiyama S, Sheeran J, Martinez C Valuation and Exploitation of Intellectual Property, No 2006/5, OECD Science, Technology and Industry Working Papers, OECD Publishing
King K (2003) The valuation and exploitation of intangible assets. EMIS, Welwyn Garden City
Kirankabeş MCem (2010) Relationship between gross domestic expenditure on R&D (GERD) and oatent applications. Middle Eastern Finance Econ (8):161–171
Langinier C (2005) Using patents to mislead rivals. Can J Econ 38(2):520–545
Lanjoow J, Lerner J (1997) The enforcement of intellectual property rights: a survey of the empirical literature. NBER, Cambridge, MA
Layne-Farrard A, Schmidt K (2010) Licensing complementary patents: patent trolls, market structure and excessive royalties. Berkeley Law Technol Rev 25:1121–1122
Lerner J (2000) 150 years of patent protection. NBER, Cambridge, MA
Levine S (2010) IBM may not be the patent king after all. Bloomberg Business Week, 13 janvier 2010
Machup P (1950) The patent controversy in the nineteenth century. J Econ Hist 10(1):1–29
MacLeod C (1986) The 1690s patents boom: invention or stock-jobbing? Econ Hist Rev 39(4):549–571
M-CAM (2003) Patent donations, special report for the Department of Treasury
McGrath S, Kedrowski K Trends in patent damages. American bar association
McLeod C (1986) The 1690s patents boom: invention or stock-jobbing? Econ Hist Rev 39(4):549–571
Menell P, Powers M, Carlson S (2010) Patent claim construction, a modern synthesis and structural framework. Berkeley Technol Rev 25:711
Monk A (2009) The emerging market for intellectual property: drivers, restrainers, and implications. J Econ Geogr 9(4):469–491
Moser P (2003) How do patent laws influence innovation. NBER, Cambridge, MA
Nicholas T (2005) Do Intangibles Cause Stock Market Bubbles? Evidence from the Great Crash, LSE Working Papers
Nielsen CM, Samardzija MR (2007) Compulsory patent licensing: is it a viable solution in the United States? Mich Telecomm Tech L Rev 13:509
Ocean Tomo (2011) Patent cases files involving fortune 100 companies
Pigou A (1920) The Economics of Welfare, p.185
Procès-verbal de l’Assemblée nationale, vol 41, Assemblée nationale constituante (1789–1791)
Reback (2006) G Patently absurd, Forbes, 24 June 2002
Shapiro C, Farrell J, Hayes J, Sullivan T (2007) Patents and hold-up. Antitrust Law J 74(3):603–670
Shestra S (2010) Trolls or market makers? An empirical analysis of non practicing entities. Columbia Law Review 10(144):114–160
Tuomas T, Kanniainen V (2000) Do patents slow down technological progress? Ind J Organ 18(7):1105
USPTO (2003) To promote innovation, The proper balance of trade law and patent policy, Federal Trade Commission
Ward AM (2011) Why do Chinese Academics file so many patents. The IPKat, février 2011
Watanabe Y (2009) Patent licencing and the emergence of a new patent market. Houst Bus Tax J 9:445
WIPO (2008) World Patent Report: a statistical review
Zunica MP, Guellec D (2009) Who licenses out patents and Why?: lessons from a business survey. OECD, Paris
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Girard, B. (2013). Does “Strategic Patenting” Threaten Innovation and What Could Happen If It Did?. In: Mukhopadhyay, C., et al. Driving the Economy through Innovation and Entrepreneurship. Springer, India. https://doi.org/10.1007/978-81-322-0746-7_27
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