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Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks

28 Pages Posted: 2 May 2008  

Robin Feldman

University of California Hastings College of the Law

Kristopher A. Nelson

University of California, San Diego (UCSD), Students

Abstract

One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patent thickets and the extent to which any such bottlenecks may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation. In contrast, a growing body of commentary argues that patent thickets are not a problem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.

The rhetoric is particularly heated these days because of dramatic changes underway in patent law. Research bottlenecks, or lack thereof, are invoked either in support of or in opposition to such changes, and it is difficult to have a rational discussion when so much seems to be at stake.

Stepping back from the rhetoric a bit, this piece suggests that one can sometimes indirectly observe effects, even if one cannot directly measure the extent of a phenomenon. With this in mind, the piece describes three approaches appearing in modern patent markets that are directed at mitigating the effects of patent thickets. These approaches can be described as Open Source, Open Access, and Open Transfer. From our vantage point, we may not be able to see or to measure the depth of the thicket. We can, however, observe the altered growth patterns that give us some indication of where the problems lie.

Keywords: patent, patent thicket, research, bottleneck, open source, biomedical, biotechnology, biotech, medical, antitrust

Suggested Citation

Feldman, Robin and Nelson, Kristopher A., Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks. Northwestern Journal of Technology and Intellectual Property, 2008. Available at SSRN: https://ssrn.com/abstract=1127571

Robin Feldman (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Kristopher A. Nelson

University of California, San Diego (UCSD), Students ( email )

San Diego, CA
United States

HOME PAGE: http://www.ekris.org

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