Is There a Biomedical Anticommons?

5 Pages Posted: 25 Jul 2004

See all articles by Richard A. Epstein

Richard A. Epstein

New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School

Bruce Kuhlik

Pharmaceutical Research and Manufacturers of America (PhRMA)

Abstract

Congress and the Food and Drug Administration have heard several recent calls for weakening the patent protection supplied under the Hatch-Waxman Amendments to the basic patent and food and drug laws, which govern the relationship between holders of pharmaceutical patents and their eventual generic competitors. According to some of the proponents of such change, the patents lead to a "Tragedy of the Anticommons" wherein innovation is slowed or aborted as various firms refuse to allow others to use their intellectual property. We think that Heller and Eisenberg have overstated the case against patent protection at both the theoretical and empirical levels. The number of patents filed in recent years has continued to move sharply upward across the board. Indeed, threatening to weaken patent rights is likely to have a chilling effect on innovation because without ample patent protection, no combination of first-mover advantages or altruism will generate the capital sums needed.

Keywords: Anticommons, biomedical, pharmaceutical patents, intellectual property, patents, biomedical research, tragedy of the anticommons, liability, innovation, patents

JEL Classification: I18, O34, O31, O38

Suggested Citation

Epstein, Richard A. and Kuhlik, Bruce, Is There a Biomedical Anticommons?. Available at SSRN: https://ssrn.com/abstract=568401

Richard A. Epstein (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States
(212) 992-8858 (Phone)
(212) 995-4894 (Fax)

Stanford University - Hoover Institution on War, Revolution and Peace

Stanford, CA 94305-6010
United States

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9563 (Phone)
773-702-0730 (Fax)

Bruce Kuhlik

Pharmaceutical Research and Manufacturers of America (PhRMA) ( email )

1100 Fifteenth Street, NW
Washington, DC 20005
United States
202-835-3469 (Phone)
202-835-3414 (Fax)

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