Power and Governance in Patent Pools
54 Pages Posted: 2 Apr 2013 Last revised: 27 Aug 2017
Date Written: June 3, 2013
This Article presents an original study of the internal governance of patent licensing collectives. This investigation is prompted by a developing belief among legal commentators that cooperative institutions such as patent pools and research consortia point the way forward for American innovation. Until now, however, scholars have not examined the internal governance of such groups. As a result, it has remained unclear whether patent pools encourage innovation, and if so, how. Drawing on fifty-two collective patent licensing agreements in force between 1856 and 2013, this Article shows that patent pools arguably have not encouraged innovation by serving as forums for collective patent valuations. Instead, many such groups incorporate “rough and ready” rules that offer the greatest innovation incentives to repeat players. In light of the unappreciated impact that patent pool design has on innovation, this Article presents a new proposal to mandate the recording of collective patent agreements with a federal agency.
Keywords: Patent law, patent licensing, intellectual property, patent licensing collectives
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