Mitigating “Anticommons” Harms to Research In Science and Technology

There are three analytically distinct layers of the phenomenon or condition that has been labeled “the anticommons,” and indicted as a potential impediment that patenting and enforcement of IPR may impose on innovative activity. The first part of the paper distinguishes between the layers of “search costs”, “transactions costs”, and “multiple marginalization” effects in the pricing of licenses for commercial use of IP, pointing out the different resource allocation problems that are likely to arise in each layer from the distribution of ownership (or control) of perfect exclusion rights conveyed by intellectual property monopolies. Where information use-rights are gross complements (either in production or consumption) multiple marginalization results in an extreme form of “royalty stacking” that can pose serious impediments to investments in research and innovation. This phenomenon, presented here as the core of the anticommons, is a more specific problem than those associated with the patenting of research tools and, at the same time, is not confined to circumstances where patenting restricts access to the use of research tools.