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http://ssrn.com/abstract=1012726
 
 

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How to Make a Patent Market


Mark A. Lemley


Stanford Law School

Nathan Myhrvold


Intellectual Ventures

August 1, 2007

Hofstra Law Review, Vol. 36, p. 257, 2008
Stanford Law and Economics Olin Working Paper No. 347

Abstract:     
Imagine a stock market in which buyers and sellers couldn't find out the prices at which anyone else sold a share of stock. If you wanted to buy (or sell) a share of stock, you'd have to guess what it was worth. The result, everyone would agree, would be massively inefficient. Willing buyers and sellers would often miss each other. Patents, however, exist in just such a blind market. Want to know if you're getting a good deal on a patent license, or acquiring rights in a technology? Too bad. Even if that patent or ones like it have been licensed dozens of times before, the terms of those licenses, including the price itself, will almost invariably be confidential. Patent owners who want to put their rights up for sale face the same problem.

The result? Willing licensors and licensees can't find each other. Patent auctions often fizzle, because without a thick market - one with an array of buyers and sellers bidding on price - no one can know whether they are getting a steal or being had. When parties do license patents, the prices are (to the extent we can tell) all over the map. And the rest of the world has no idea what those prices are. This in turn means that courts lack adequate benchmarks to determine a ¿reasonable royalty¿ when companies infringe patents.

The solution is straightforward: require publication of patent assignment and license terms. Doing so won't magically make the market for patents work like a stock exchange; there will still be significant uncertainty about whether a patent is valid and what it covers. But it will permit the aggregate record of what companies pay for rights to signal what particular patents are worth and how strong they are, just as derivative financial instruments allow markets to evaluate and price other forms of risk. It will help rationalize patent transactions, turning them from secret, one-off negotiations into a real, working market for patents. And by making it clear to courts and the world at large what the normal price is for patent rights, it will make it that much harder for a few unscrupulous patent owners to hold up legitimate innovators, and for established companies to systematically infringe the rights of others.

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Date posted: September 11, 2007 ; Last revised: February 6, 2011

Suggested Citation

Lemley, Mark A. and Myhrvold, Nathan, How to Make a Patent Market (August 1, 2007). Hofstra Law Review, Vol. 36, p. 257, 2008; Stanford Law and Economics Olin Working Paper No. 347. Available at SSRN: http://ssrn.com/abstract=1012726

Contact Information

Mark A. Lemley (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
Nathan Myhrvold
Intellectual Ventures ( email )
3150 139th Ave SE
Building 4
Bellevue, WA 98005
United States
HOME PAGE: http://www.intellectualventures.com
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