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http://ssrn.com/abstract=948468
 
 

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Engineering a Deal: Toward a Private Ordering Solution to the Anticommons Problem


F. Scott Kieff


George Washington University - Law School; Stanford University - Hoover Institution on War, Revolution and Peace

Troy A. Paredes


Washington University in Saint Louis - School of Law

November 2006

Stanford Law and Economics Olin Working Paper No. 330
Washington University School of Law Working Paper No. 06-12-01

Abstract:     
The problems of the intellectual property ("IP") anticommons are infamous. Many people fear that the potential for vast numbers of IP rights to cover a single good or service will prevent an enterprise from even attempting to launch a business for fear of being unduly taxed or retarded or simply held up. This Article offers a solution based on private ordering within the context of existing laws. This approach uses a limited liability entity structured so that IP owners are given an actual stake in the operating business and thus an incentive to participate in the enterprise; and yet at the same time, the IP owners face a number of constraints that mitigate their interest in acting opportunistically by holding out. Through careful attention to IP owner payoffs and self-restraint, the proposed structure is designed to coordinate behavior among relevant IP owners, thus overcoming the anticommons problem. This approach is designed to help lawyers serve their role as transaction cost engineers who can structure relationships in ways that get deals done.

Number of Pages in PDF File: 37

Keywords: Intellectual Property, Anticommons, Patent

JEL Classification: A12, B15, B25, D23, D29, D61, K11, K20, K29, K39

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Date posted: November 30, 2006  

Suggested Citation

Kieff, F. Scott and Paredes, Troy A., Engineering a Deal: Toward a Private Ordering Solution to the Anticommons Problem (November 2006). Stanford Law and Economics Olin Working Paper No. 330; Washington University School of Law Working Paper No. 06-12-01. Available at SSRN: http://ssrn.com/abstract=948468 or http://dx.doi.org/10.2139/ssrn.948468

Contact Information

F. Scott Kieff (Contact Author)
George Washington University - Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4644 (Phone)
Stanford University - Hoover Institution on War, Revolution and Peace ( email )
434 Galvez Mall
Stanford, CA 94305-6010
United States
650-723-3678 (Phone)
Troy A. Paredes
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
314-935-8216 (Phone)
314-935-5356 (Fax)
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