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'Essential' Patents, FRAND Royalties and Technological Standards

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  • Dewatripont, Mathias
  • Legros, Patrick

Abstract

In this paper we abandon the usual assumption that patents bring known benefits to the industry or that their benefits are known to all parties. When royalty payments are increasing in one’s patent portfolio, private information about the quality of patents leads to a variety of distortions, in particular the incentives of firms to 'pad' by contributing weak patents. Three main results that emerge from the analysis are that: (i) the threat of court disputes reduces incentives to pad but at the cost of lower production of strong patents; (ii) mitigating this undesirable side-effect calls for a simultaneous increase in the cost of padding, that is, a better filtering of patent applications; (iii) upstream firms have more incentives to pad than vertically-integrated firms which internalize the fact that patent proliferation raises the share of profits going to the upstream segment of the industry but at the expense of its downstream segment. This seems consistent with recent evidence concerning padding.

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Paper provided by C.E.P.R. Discussion Papers in its series CEPR Discussion Papers with number 6925.

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Date of creation: Aug 2008
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Handle: RePEc:cpr:ceprdp:6925

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Keywords: Frand; padding; royalty; Standard setting organization; weak patent;

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  1. Chiao, Benjamin & Lerner, Josh & Tirole, Jean, 2007. "The Rules of Standard Setting Organizations: An Empirical Analysis," CEPR Discussion Papers 6141, C.E.P.R. Discussion Papers.
  2. Lemley, Mark A. & Shapiro, Carl, 2004. "Probabilistic Patents," Competition Policy Center, Working Paper Series qt9xf1488p, Competition Policy Center, Institute for Business and Economic Research, UC Berkeley.
  3. Oliver Hart & John Moore, 1988. "Property Rights and the Nature of the Firm," Working papers 495, Massachusetts Institute of Technology (MIT), Department of Economics.
  4. Adam B. Jaffe & Josh Lerner & Scott Stern, 2007. "Innovation Policy and the Economy, Volume 7," NBER Books, National Bureau of Economic Research, Inc, number jaff07-1.
  5. Carl Shapiro, 2004. "Navigating the Patent Thicket: Cross Licenses, Patent Pools and Standard Setting," Levine's Working Paper Archive 122247000000000539, David K. Levine.
  6. Aoki, Reiko & Nagaoka, Sadao, 2004. "The Consortium Standard and Patent Pools," Discussion Paper 222, Center for Intergenerational Studies, Institute of Economic Research, Hitotsubashi University.
  7. Joseph Farrell & Carl Shapiro, 2008. "How Strong Are Weak Patents?," American Economic Review, American Economic Association, vol. 98(4), pages 1347-69, September.
  8. Lerner, Josh & Tirole, Jean, 2003. "Efficient Patent Pools," IDEI Working Papers 211, Institut d'Économie Industrielle (IDEI), Toulouse.
  9. Jaffe Adam B. & Lerner Josh, 2006. "Innovation and Its Discontents," Capitalism and Society, De Gruyter, vol. 1(3), pages 1-36, December.
  10. Shapiro, Carl, 2006. "Injunctions, Hold-Up, and Patent Royalties," Competition Policy Center, Working Paper Series qt6px3m1rb, Competition Policy Center, Institute for Business and Economic Research, UC Berkeley.
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Cited by:
  1. Schmidt, Klaus M., 2008. "Complementary Patents and Market Structure," CEPR Discussion Papers 7005, C.E.P.R. Discussion Papers.
  2. Bruno Van Pottelsberghe & Pierre M. Picard, 2011. "Patent office Governance and Patent System Quality," Working Papers ECARES ECARES 2011-007, ULB -- Universite Libre de Bruxelles.
  3. Bruno van Pottelsberghe de la Potterie, 2011. "The quality factor in patent systems," Industrial and Corporate Change, Oxford University Press, vol. 20(6), pages 1755-1793, December.
  4. Andrew F. Newman & Patrick Legros, 2011. "Incomplete Contracts and Industrial Organization: A Survey," Boston University - Department of Economics - Working Papers Series WP2011-036, Boston University - Department of Economics.
  5. Bruno Van Pottelsberghe & Matthis de Saint-Georges, 2011. "A quality index for patent systems," Working Papers ECARES ECARES 2011-010, ULB -- Universite Libre de Bruxelles.
  6. Picard, Pierre M. & van Pottelsberghe de la Potterie, Bruno, 2013. "Patent office governance and patent examination quality," Journal of Public Economics, Elsevier, vol. 104(C), pages 14-25.
  7. Katharine Rockett, 2009. "Property Rights and Invention," Economics Discussion Papers 663, University of Essex, Department of Economics.

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