Research Handbook on the Economics of Intellectual Property Law
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Research Handbook on the Economics of Intellectual Property Law

Vol 1: Theory Vol 2: Analytical Methods

Edited by Ben Depoorter, Peter Menell and David Schwartz

Both law and economics and intellectual property law have expanded dramatically in tandem over recent decades. This field-defining two-volume Handbook, featuring the leading legal, empirical, and law and economics scholars studying intellectual property rights, provides wide-ranging and in-depth analysis both of the economic theory underpinning intellectual property law, and the use of analytical methods to study it.
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Chapter 2: Anticommons, transaction costs, and patent aggregators

Rebecca S. Eisenberg

Abstract

An anticommons is a fragmented allocation of property rights in which resources are prone to underuse because it is costly to assemble necessary permissions to put resources to use. The more rights holders and the more varied their entitlements, the more challenging it is to avoid waste through bargaining. The patent system continuously creates new rights for new claimants, with limited opportunity to establish consensus valuations as technology changes. Patent aggregation might seem like an effective market solution to the problem of fragmented ownership, yet the rise of patent aggregators seems to have done more to reduce costs of assertion by patent owners than to reduce costs of clearing rights by technology users. The result may be a greater risk of underuse as subsequent innovators need to evaluate and clear more rights that they might otherwise have ignored with little risk of assertion in the absence of aggregation

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