Patents www.ebook3000.com Smart Innovation Set coordinated by Dimitri Uzunidis Volume 12 Patents Prompting or Restricting Innovation? Marc Baudry Béatrice Dumont First published 2017 in Great Britain and the United States by ISTE Ltd and John Wiley & Sons, Inc Apart from any fair dealing for the purposes of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act 1988, this publication may only be reproduced, stored or transmitted, in any form or by any means, with the prior permission in writing of the publishers, or in the case of reprographic reproduction in accordance with the terms and licenses issued by the CLA Enquiries concerning reproduction outside these terms should be sent to the publishers at the undermentioned address: ISTE Ltd 27-37 St George’s Road London SW19 4EU UK John Wiley & Sons, Inc 111 River Street Hoboken, NJ 07030 USA www.iste.co.uk www.wiley.com © ISTE Ltd 2017 The rights of Marc Baudry and Béatrice Dumont to be identified as the authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988 Library of Congress Control Number: 2017949782 British Library Cataloguing-in-Publication Data A CIP record for this book is available from the British Library ISBN 978-1-78630-118-5 www.ebook3000.com Contents Introduction ix Chapter The Purpose of Patents 1.1 Introduction 1.2 Patents as an incentive mechanism 1.2.1 The key question of appropriability of returns for innovation 1.2.2 Patents as a solution for the lack of appropriability 1.2.3 Patents and their design 1.2.4 Are patents a property right like any other? 1.3 Patents as intangible assets 1.3.1 From factory to fabless: the growing role of the obligation to disclose the content of patents 1.3.2 The emergence of patents as intangible assets 1.3.3 The delicate question of assessing patents as intangible assets 1.3.4 Patents as funding leverage 1.3.5 The commoditization of patents 1.4 Case study: Intellectual Ventures Inc 11 22 26 27 30 33 40 44 51 Chapter The Imprimatur of Patent Offices in the Face of Reforms 55 2.1 Introduction 2.2 The exponential demography of patents 2.3 The impact of regulatory factors and legal decisions in the United States 2.3.1 Patent continuations or “evergreening” 2.3.2 Reform attempts 55 56 66 72 74 vi Patents 2.4 Regulatory developments in Europe 2.4.1 The unitary patent and the unified court: the final stage of a European patent system? 2.4.2 The supposed economic advantages of the unitary system 2.4.3 From intention to reality 94 97 103 106 Chapter The Judiciarization of Patents 111 3.1 Introduction 3.2 Should patent trolls be tracked down? 3.2.1 A class of heterogeneous actors 3.2.2 The business model of litigation PAEs 3.2.3 What is the scale of this phenomenon? 3.2.4 The consequences for innovation 3.2.5 A longstanding and potentially beneficial role 3.2.6 Proposals for reforms 3.3 Standards and patents: a necessary but tense coexistence 3.3.1 FRAND licenses as safeguards for essential patents 3.3.2 The hold-up theory faced with the facts 3.3.3 The availability of injunctions 3.3.4 Patent ambushes 3.3.5 Royalty-stacking 3.3.6 “Best FRAND forever” or the delicate question of royalty amounts 3.4 Case study: sovereign patent funds 111 113 115 117 121 126 129 134 135 136 139 145 159 162 164 172 Chapter A New Place under the Sun for Patents? 177 4.1 Introduction 4.2 The patent as one innovation policy instrument among many 4.2.1 Innovation awards, or how to rehabilitate an old approach 4.2.2 Could innovation awards replace patents? 4.2.3 Complementarity with support for R&D efforts 4.2.4 An example of complementarity between instruments: low-carbon innovation 4.3 Patents in support of open innovation strategies 4.3.1 Patent pools as a premise for open innovation 4.3.2 From R&D cooperation to open innovation 4.3.3 Why is open innovation so “patent-compatible?” 4.3.4 Patents at the center of intermediate innovation 4.4 Case study: “My patents are yours” – development in the Tesla case www.ebook3000.com 177 178 179 182 187 189 192 193 198 204 208 211 Contents vii Conclusion 217 Bibliography 221 Index 251 Introduction It is tempting to see the debate about the relevance of patents for supporting innovation as a contemporary, updated version of the tongue anecdote from Aesop, the famous ancient Greek fabulist who was also a slave When his master asked him to go to market to buy the choicest dainties to honor some special guests, Aesop only bought tongues, which he served with different sauces When his master questioned his choice, Aesop responded, “There is nothing better than the tongue, the connection to civil life, the key to science, the organ of truth, reason and prayer Through it, we build cities and govern them, we teach, we persuade, we hold assemblies, and we carry out the most important of all work, which is to praise the gods” Offended by this answer, Xanthos, Aesop’s master, asked him to choose the worst meal for the same guests to try the next night Again, Aesop bought only tongues, and served them with different sauces To his puzzled master, he responded: “There is nothing worse than the tongue, the mother of all disputes, the source of all conflict and wars, the organ of error and slander, blasphemy and impiety Through it, we destroy cities, we convince people of evil things, and we utter blasphemy about the power of the gods”1 Patents are at least as ambivalent as Aesop characterizes the tongue This ambivalence has long been recognized When concluding his report for the U.S Senate about patents, Machlup [MAC 58, pp 79–80] wrote: “No economist, on the basis of present knowledge, could possible state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society The best he can is state assumptions and make See Mayvis [MAY 06], Chapter www.ebook3000.com x Patents guesses about the extent to which reality corresponds to these assumptions [ ] If one does not know whether a system as a whole is good or bad, the safest policy conclusion is to “muddle through” either with it, if one has long lived with it or without it, if one has long lived without it If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it” After emerging in England, as a system of exceptions in the context of laws to counter monopoly rents, patents were conversely consecrated as a natural right of all men over what they produced following the French Revolution in 1789 Over the course of the 19th Century, calls to put an end to the patent system increased In Great Britain, the news magazine The Economist openly took a position in favor of abandoning them in an article published in 18512 In France, the Saint-Simonian economist Michel Chevalier wrote as early as 1862 that “the legislation of invention patents is harmful to industry today” (Chevalier [CHE 62]) Some countries, such as Switzerland, refused all protection by patents, a system judged in principle to be “pernicious and indefensible” in itself3 The Netherlands abandoned the legal protection of inventions between 1869 and 1912 (Schiff [SCH 71]) The movement in support of abolishing the patent system – its “reform” as it was called – nearly carried the day between 1850 and 1875, but those in favor of maintaining the system were victorious in the end owing to the “protectionist reaction” at the turn of the century (Machlup and Penrose [MAC 50]) The inability, for more than a century and a half now, of industrialized or industrializing countries to develop a sustainable mechanism that encourages innovation that could substitute for patents and displace them may be seen as “default” proof that patents are the best system Even though the academic literature has considered, and continues to actively consider, the question of the best support mechanism for innovation, it must be said that no alternative solution seems able to fully eclipse patents So, we can justify maintaining the patent system in light of Oliver Williamson’s criterion of “remediableness” [WIL 96], which is to say that an existing practice for which there exists no feasible better alternative, which can be described and implemented with a reduced net gain, is presumed to be efficient This does See http://economist.com/news/business-and-finance/21660769-second-leader-1851-aboutpatents-amendment-patent-laws Patent protection dates from 1888 in Switzerland, with an extension of the breadth of the protection in 1912 Introduction xi not mean that the patent system does not have a certain number of flaws and quirks, only that the alternative solutions are not exempt from those either Because of this, several economists defend the system as being the lesser evil, somewhat in the manner of Winston Churchill, who said that democracy was the least objectionable of the political systems Therefore, according to a law and economics logic, strong patents are indicative of a system of intellectual property, just like property on tangible assets, that is indispensable for the good working of the economy (Kitch [KIT 77], Posner [POS 05]) The demography of patents, however, compels us to be somewhat alarmist In the last four decades, the increase in the number of patents requested and granted around the world seems out of control Just as a population living in too great a concentration in a given space generates stress, illness, aggressiveness, and conflicts, the system seems to be becoming “ill.” Some people see evidence of this in the overlap of rights conferred by patents, generating “patent thickets,” which would lead to a prolific rise in litigation or blocking the dissemination of innovations by a stacking in license fees Similarly, some authors indicate the weakness of empirical evidence regarding the link between the demography of patents and productivity growth, and only see an unhealthy outgrowth of the system, almost like a cancerous tumor, in the increase of this demography The typical agent, according to this perspective, would be the “patent troll” who hides behind patents that are superficial in substance, only to capture rents at the expense of “real” innovators For instance, Boldrin and Levine [BOL 08], who are at the forefront of the contemporary movement of patent contestation, criticize the idea that patents would lead to a higher rate of innovations Based on the number of innovations presented at international trade fairs, they argue that in the 19th Century, countries that did not have a patent system were no less innovative than the countries that did have one According to economists who support this slightly Manichean approach to patents (and they are no less numerous than their opponents), the staggering growth of patents is negative For them, we must, at the very least, practice a technological “Malthusianism” by drastically narrowing the qualifying conditions for patents, or even abolish the patent system itself What can we contribute to such a polarized debate about the relevance of patents? First of all, we can trace the events and reasoning that led to this polarization We can also re-situate it in a larger context The last three decades of the 20th Century were marked by a number of economic changes At the end of the 30 glorious years, the economic system characterized by a www.ebook3000.com xii Patents kind of capitalism that was tightly regulated by the State, has been replaced by a new economic system where the prevalence of markets is affirmed It consists of goods markets based on the development of international trade and the advent of globalization It also involves financial markets with unprecedented mobility for capital It is not at all surprising that the model for innovation also changed in such a context Confronted by markets for goods and services where competition is stimulated by new actors struggling to gain entry, the model of innovation necessarily led to change in the 21st Century More actors also means that smaller actors cannot exist without specializing, including in the production of innovative solutions intended for others However, smaller actors are also more subject to financial constraints In order to bypass these constraints, what is more logical than to turn to the financial actors for whom obstacles were removed regarding the possibility of involvement? More actors can also mean more interactions among them What we see emerging in this systemic logic is a shift away from a vertically integrated model of innovation “à la Schumpeter” where large firms create inventions internally, fund R&D themselves, and attempt to produce and commercialize innovations by themselves, toward a fragmented and intermediated model where a large number of actors interact with each other These interactions require guarding against imitation as best as possible, but also sharing inventions while still being able to protect them Patents can respond to these requirements They ensure what economists call the appropriability of returns from inventions, and thereby encourage innovation Aside from this traditional perspective on their role, patents also make it possible to demonstrate inventive capacities and reduce information asymmetry in transactions concerning new technologies, in partnerships forged to design these technologies, or in the access to external funding for R&D to support these technologies This does not mean that the new system guarantees more innovations It is only said that, while the vertically integrated system of innovation could more easily without patents, the new fragmented system of innovation is much more constructed with, and even around, patents That is what this book will attempt to demonstrate To understand this logic, it is important to start by recalling the purpose of patents This is the goal of Chapter 1, which begins by reiterating the incentivizing role of patents As the right to forbid others from exploiting an invention, in cases of successful inventions, it provides a rent that compensates ex post the inventor for having taken ex ante a risk and dedicated the means to develop the invention The patent is therefore basically a sequential compromise for according a return ex post by creating an incentive ex ante However, this right of intellectual property must not Bibliography 243 [NAT 03] NATIONAL RESEARCH COUNCIL, Patents in the Knowledge Based Economy, COHEN W.M., MERRILL S.A (eds.), Committee on Intellectual Property Rights in the Knowledge-Based Economy, The National Academies Press, Washington D.C., 2003 [NEG 04] NEGASSI S., “R&D co-operation and innovation: a microeconometric study on French firms”, Research Policy, vol 33, pp 365–384, 2004 [NEW 05] NEWELL R.G., WILSON N.E., Technology prizes for climate change mitigation, Resources for the Future, Discussion Paper, 05–33, available at: http://www.rff.org/files/sharepoint/WorkImages/Download/RFF-DP-05–33.pdf, 2005 [NIM 94] NIMMER R., “Standards, antitrust and intellectual property”, in BENDER D (ed.), Intellectual property Antitrust, Publishing Law Institute, New York, 1994 [NOE 13] NOEL M., SCHANKERMAN M., “Strategic patenting and software innovation”, Journal of Industrial Economics, vol 61, no 3, pp 481–520, 2013 [NOR 69] NORDHAUS W., Invention, Growth and Welfare: A Theoretical Treatment of Technological Change, MIT Press, Cambridge, 1969 [NOR 72] NORDHAUS W., “The optimum life of a patent: reply”, American Economic Review, vol 62, no 3, pp 428–431, 1972 [NOR 11] NORDHAUS W., “Designing a friendly space for technological change to slow global warming”, Energy Economics, vol 33, pp 665–673, 2011 [ODA 14] ODASSO C., SCELLATO G., UGHETTO E., “Selling patents at auction: an empirical analysis of patent value”, Industrial and Corporate Change, vol 24, no 2, pp 417–438, 2014 [OEC 96] OECD, The Knowledge-Based Economy, OECD/GD (96), 102, available at: http:/www.oecd.org//dsti/sti/s_t/inte/prod/kbe/.pdf, 1996 [OEC 05] OECD, Oslo manual: Guidelines for collecting and interpreting innovation data, 3rd ed., available at: http://www.oecd-ilibrary.org/docserver/ download/9205111e.pdf?expires=1501156702&id=id&accname=guest&checksu m=8EBFEC297CA6ECCDD87EE1BC0C2581C8, 2005 [OEC 12] OECD, Competitive neutrality: maintaining a level playing field between public and private business, available at: http://www.oecd.org/daf/ca/ corporategovernanceofstate-ownedenterprises/50302961.pdf, 2012 [OEC 14a] OECD, Examens de l’OCDE des politiques d’innovation, available at: http://OECD.org/fr/ sti/inno/innovation-france-ocde.pdf, 2014 [OEC 14b] OECD, Intellectual property and standard-setting, DAF/COMP (2014)27, Nov 05, 2014, available at: http://www.oecd.org/officialdocuments/ publicdisplaydocumentpdf/?cote=DAF/COMP(2014)27&doclanguage=en, 2014 244 Patents [OEC 15] OECD, Countering harmful tax practices more effectively, Taking into account transparency and substance, Report, available at: https://www.oecd.org/tax/countering-harmful-tax-practices-more-effectivelytaking-into-account-transparency-and-substance-action-5–2015-final-report9789264241190-en.htm, 2015 [OHL 16] OHLHAUSEN M.K., “Patent rights in a climate of IPR skepticism”, Harvard Journal of Law & Technology, vol 30, no 1, pp 1–51, 2016 [OLM 12] OLMOS L., RUESTER S., LIONG S.-J., “On the selection of financing instruments to push the development of new technologies: application to clean energy technologies”, Energy Policy, vol 43, pp 252–266, 2012 [PAK 84] PAKES A., GRILICHES Z., “Patents and R&D at the firm level: a first look”, in GRILICHES Z (ed.), R&D, Patents, and Productivity, University of Chicago Press, Chicago, 1984 [PAK 85] PAKES A., “On patents, R&D, and the stock market rate of return”, Journal of Political Economy, vol 93, no 2, pp 390–409, 1985 [PET 07] PETHERBRIDGE L., WAGNER R.P., “The Federal Circuit and patentability: an empirical assessment of the law of obviousness”, Texas Law Review, vol 85, pp 1–57, 2007 [POL 44] POLANVYI M., “Patent reform”, Review of Economic Studies, vol 11, pp 61–76, 1944 [POS 05] POSNER R., “Intellectual property: the law and economics approach”, Journal of Economic Perspective, vol 57, pp 58–59, 2005 [POS 12] POSNER R., Do patents and copyright law restrict competition and creativity excessively?, Blog post, September 10, available at: http://beckerposner-blog.com/2012/09/do-patent-andand-copyright-law-restrict-competition and creativity, 2012 [POS 13] POSNER R., Patent trolls, Blog post, available at: http://www.beckerposner-blog.com/2013/07/patent-trollsposner.html, 2013 [PWC 14] PWC, 2014, Patent litigation study: big cases make headlines, while patent cases proliferate, Report, available at: http://www.pwc.com/en_S/us/ forensic-services/publications/assets/2013-patent-litigation-study.pdf, 2014 [QUI 01] QUILLEN C.D., WEBSTER O., “Continuing patent application and performance of the U.S patent office”, Federal Circuit Bar Journal, vol 11, no 1, pp 1–21, 2001 [QUI 15] QUINN G., MORINVILLE P., Patent reform riddled with intented, unintended and unknow consequences, IP Watchdog, July 27, available at: http://www.ipwatchdog.com/2015/07/27/patent-reform-riddledwith-intended_ unintended-and-unknown-cosequences-/id=60030, 2015 www.ebook3000.com Bibliography 245 [REI 07] REITZIG M., HENKEL J., HEATH C.H., “On sharks, trolls, and their patent prey: unrealistic damage awards and firms strategies of ‘being infringed’”, Research Policy, vol 36, no 1, pp 134–154, 2007 [REI 10] REITZIG M., HENKEL J., SCHNEIDER F., “Collateral damage for R&D manufacturers: how patent sharks operate in markets for technology”, Industrial and Corporate Change, vol 19, no 3, pp 947–967, 2010 [RIC 14] RICHARDSON K., OLIVER E., “What’s inside IV’s patent portfolio?”, Intellectual Asset Management (IAM), July/August, pp 19–29, 2014 [ROS 74] ROSEN S., “Hedonic prices and implicit markets: product differentiation in pure competition”, Journal of Political Economy, vol 82, no 1, pp 6–22, 1974 [ROS 06] ROSENBERG D., SHAVELL S., “A solution to the problem of nuisance suits: the option to have the court bar settlement”, International Review of Law and Economics, vol 26, pp 42–51, 2006 [ROY 01] ROYAL SOCIETY vol 5, no 4, 1901 OF ARTS, Year Book of the Royal Society of London, [RPX 14] RPX, Standard essential patents: how they fare, Report, available at: htpp://www.rpx.corp.com/wp-content/uploads/2014/01/standard-EssentialPatents-How-Do-They-Fare.html, 2014 [RYS 08] RYSMAN M., SIMCOE T., “Patents and the performance of voluntary standard setting organizations”, Management Science, vol 54, no 11, pp 1920– 1934, 2008 [RYS 09] RYSMAN M., “The economics of two-sided markets”, Journal of Economic Perspectives, vol 23, no 3, pp 125–143, 2009 [SAG 06] SAG M., RHODE K., “Patent reform and differential impact”, Minnesota Journal of Law, Science and Technology, vol 8, no 1, pp.1–93, available at: http://papers//snrs.com/so13/papers.cfm?abstract_id925722, 2006 [SAH 10] SAHUT J.-M., BOULERNE S., “Have IAS (International Accounting Standards)/IFRS improved the information content of intangibles in France?”, Journal of Financial Management and Analysis, vol 10, no 3, pp 52–62, 2010 [SAL 83] SALOP S.C., SCHEFFMAN D.T., “Raising rivals’ costs”, American Economic Review, vol 73, no 2, pp 267–271, 1983 [SAL 87] SALOP S.C., SCHEFFMAN D.T., “Cost-raising strategies”, Journal of Industrial Economics, vol 36, no 1, pp 19–34, 1987 [SCH 71] SCHIFF E., Industrialization Without National Patents, The Netherlands, 1869–1912, Switzerland, 1850–1907, Princeton University Press, Princeton, 1971 [SCH 72] SCHERER F.M., “Nordhaus’ theory of optimal patent life: a geometrical reinterpretation”, American Economic Review, vol 62, no 3, pp 422–427, 1972 246 Patents [SCH 85] SCHANKERMAN M., PAKES A., “The rate of obsolescence and the distribution of patent values: some evidence from European patent renewals”, Revue Economique, vol 36, pp 917–941, 1985 [SCH 86] SCHANKERMAN M., PAKES A.,“Estimates of the value of patent rights in European countries during the post-1950 period”, Economic Journal, vol 96, no 394, pp 1052–1076, 1986 [SCH 11] SCHUMPETER J.A., Théorie de l’évolution économique: Recherches sur le profit, le crédit, l’intérêt et le cycle de la conjoncture, 2nd ed., Dalloz, Paris, 1911 [SCH 12] SCHWARTZ D., “The rise of contingent fee representation in patent litigation”, Alabama Law Review, vol 64, no 2, pp 335–388, 2012 [SCH 16] SCHANKERMAN M., SCHUETT F., Screening for patent quality: examination, fees, and the courts, TILEC Discussion Paper no 2016–036, CentER Discussion Paper no 2016–046, available at: https://papers.ssrn.com/ sol3/ papers.cfm?abstract_id=2885197, 2016 [SCO 91] SCOTCHMER S., “Standing on the shoulders of giants: cumulative research and the patent law”, The Journal of Economic Perspectives, vol 5, pp 29–41, 1991 [SHA 94] SHAN W., WALKER G., KOGUT B., “Interfirm cooperation and start-up innovation in the biotechnology industry”, Strategic Management Journal, vol 15, pp 387–394, 1994 [SHA 99] SHAPIRO C., VARIAN H., Information Rules: A Strategic Guide to the Network Economy, Harvard Business School Press, Boston, 1999 [SHA 01a] SHAPIRO C., “Navigating the patent thicket: cross licenses, patent pools, and standard setting” in JAFFE A., LERNER J., STERN N (eds.), Innovation Policy and the Economy, vol 1, MIT Press, Cambridge, 2001 [SHA 01] SHAVELL S., VAN YPERSELE T., “Rewards versus Intellectual Property Rights”, Journal of Law and Economics, vol 44, pp 525–47, 2001 [SHA 13] SHAH S.Z.A., LIANG S., AKBAR S., “International financial reporting standards and the value relevance of R&D expenditures: pre and post IFRS analysis”, International Review of Financial Analysis, vol 30, pp 158–169, 2013 [SHR 10] SHRESTHA S.K., “Trolls or market makers? An empirical analysis of nonpracticing entities”, Columbia Law Review, vol 110, pp 114–160, available at: http://www.columbialawreview.org/assets/pdfs/110/1/Shrestha.pdf, 2010 [SID 62] SIDNEY S., “On the effect of prizes on manufacturers”, Journal of the Society of Arts, vol 10, no 492, pp 374–382, 1862 [SID 13] SIDAK J.G., “The meaning of FRAND, Part 1: royalties”, Journal of Competition Law and Economics, vol 9, no 4, pp 931–1055, 2013 www.ebook3000.com Bibliography 247 [SID 15] SIDAK J.G., “The Antitrust Division’s devaluation of standard-essential patents”, Georgetown Law Journal, vol 104, pp 48–73, available at: https://www.criterioneconomics.com/docs/antitrust-divisions-devaluation-ofstandard-essential-patents.pdf, 2015 [SMI 76] SMITH A., Recherches sur la nature et les causes de la richesse des nations, Strahan and Cadell, London, 1776 [SOL 87] SOLOW R., We’d better watch out, New York Times Book Review, July 12, 1987 [SON 06] SONG J., “Intellectual property regimes, innovative capabilities, and patenting in Korea”, Seoul Journal of Business, vol 12, no 2, pp 57–75, 2006 [SOU 94] SOUGIANNIS T., “The accounting based valuation of corporate R&D”, The Accounting Review, vol 69, no 1, pp 44–68, 1994 [SPE 73] SPENCE M., “Job market signaling”, Quarterly Journal of Economics, vol 87, no 3, pp 355–374, 1973 [SQU 13] SQUICCIARINI M., DERNIS H., CRISCUOLO C., Measuring patent quality: indicators of technological and economic value, OECD Science, Technology and Industry Working Paper, 2013 [STE 96] STEPHAN P.E, “The economics of science”, Journal of Economic Literature, vol 34, no 3, pp 1199–1235, 1996 [STI 06] STIGLITZ J.E., “Give prizes not patents”, New Scientist, pp 21, 16 September, 2006 [STI 08] STIGLITZ J.E., “Economic foundations of intellectual property rights”, Duke Law Journal, vol 57, no 6/3, pp 1693–1724, 2008 [SUL 15] SULLIVAN M., Patent boxes, research credits or lower rates? Tax Notes, pp 1–4, June 1, 2015 [SWA 05] SWANSON D., BAUMOL W., “Reasonable and non discriminatory (Rand) royalties, standard selection, and control of market power”, Antitrust Law Journal, vol 73, no 1, pp 1–58, 2005 [SZA 11] SZAKALSKI D.R., “Progress in the aircraft industry and the role of patent pools and cross-licensing agreements”, UCLA Journal of Law and Technology, vol 15, no 1, pp 1–34, 2011 [TAP 10] TAPIA C., Industrial property rights, technical standards and licensing practices (FRAND) The Telecommunication Industry, Carl Heymanns, 2010 [TET 02] TETHER B.S., “Who co-operates for innovation, and why: an empirical analysis”, Research Policy, vol 31, pp 947–967, 2002 [THO 77] THOMADAKIS S.B., “A value-based test of profitability and market structure”, Review of Economics and Statistics, vol 59, no 2, pp 179–185, 1977 248 Patents [TOB 68] TOBIN J., BRAINARD W., “Pitfalls in financial model building”, American Economic Review, vol 58, no 2, pp 99–102, 1968 [TOB 69] TOBIN J., “A general equilibrium approach to monetary policy”, Journal of Money, Credit and Banking, vol 1, no 1, pp 15–29, 1969 [TOB 78] TOBIN J., “Monetary policies and the economy: the transmission mechanism”, Southern Economic Journal, vol 9, no 44, pp 421–431, 1978 [TSO 11] TSOLIGKAS F., TSALAVOUTAS I., “Value relevance of R&D in the UK after IFRS mandatory implementation”, Applied Financial Economics, vol 21, no 13, pp 957–967, 2011 [TUC 14] TUCKER C., The effect of patent litigation and patent assertion entities on entrepreneurial activity, MIT Sloan School working paper no 5095–14, 2014 [USE 14] USECHE D., “Are patents signals for the IPO market? An EU-US comparison for the software industry”, Research Policy, vol 43, no 8, pp 1299– 1311, 2014 [VAN 96] VAN DIJK T., “Patent height and competition in product improvements”, Journal of Industrial Economics, vol 44, no 2, pp 151–167, 1996 [VAN 10a] VAN POTTELSBERGHE DE LA POTTERIE B., Europe should stop taxing innovation, Bruegel Policy Brief, available at: http://bruegel.org/wpcontent/uploads/imported/publications/pb_2010–02_300310–2.pdf, 2010 [VAN 10b] VAN POTTELSBERGHE DE LA POTTERIE B., MEJER M., “The London Agreement and the cost of patenting in Europe”, The European Journal of Law and Economics, vol 29, no 2, pp 211–237, 2010 [VEU 12] VEUGELERS R., “Which policy instruments to induce clean innovating?”, Research Policy, vol 41, pp 1770–1778, 2012 [VON 13] VON GRAEVENITZ G., WAGNER S., HARHOFF D., “Incidence and growth of patent thickets: the impact of technological opportunities and complexity”, Journal of Industrial Economics, vol 61, no 3, pp 521–563, 2013 [WAG 12] WAGNER J., “Patent trolls and the high cost of litigation to business and start-ups: a myth?”, Maryland Bar Journal, vol 45, no 5, pp 12–19, 2012 [WEL 48] WELSH C.A., “Patents and competition in the automobile industry”, Law and Contemporary Problems, vol 13, no 2, pp 260–277, 1948 [WES 14] WEST J., SALTER A., VANHAVERBEKE W et al., “Open innovation: the next decade”, Research Policy, vol 43, pp 805–811, 2014 [WHI 12] WHISH R., BAILEY D., Competition Law, Oxford University Press, 2012 [WIL 12] WILLIAMS H., “Innovation inducement prizes: connecting research to policy”, Journal of Policy Analysis and Management, vol 31, no 3, pp 752– 776, 2012 www.ebook3000.com Bibliography 249 [WIL 85] WILLIAMSON O., The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting, The Free Press, New York, 1985 [WIL 96] WILLIAMSON O., The Mechanism of Governance, Oxford University Press, Oxford, 1996 [WRI 83] WRIGHT B.D., “The economics of invention incentives: patents, prizes, and research contracts”, American Economic Review, vol 73, pp 691–707, 1983 [WRI 14] WRIGHT J.D., GINSBURG H., “Patent assertion entities and antitrust: a competition cure for a litigation disease”, Antitrust Law Journal, vol 79, no 2, pp 501–526, 2014 [YAN 09] YANAGISAWA T., GUELLEC D., The emerging patent marketplace, Science Technology and Industry Working Paper 2009/9, OECD, 2009 [ZIE 04] ZIEDONIS R., “Don’t fence me in: fragmented markets for technology and the patent acquisition strategy of firms”, Management Science, vol 50, no 6, pp 804–820, 2004 [ZOB 16] ZOBEL A.-K., BALSMEIER B., CHESBROUGH H., “Does patenting help or hinder open innovation? Evidence from new entrants in the solar industry”, Industrial and Corporate Change, vol 25, no 2, pp 307–331, 2016 Index A, B, C appropriability, 3, 7, 11, 29, 43 business model, 28, 80, 115, 117, 118, 121, 174, 198, 209, 212, 213 co-patent, 50, 207, 208, 215, 216 commoditization, 44 complementarity, 44, 46, 178, 187, 189, 198–201 continuation patents, 72–75, 78, 114 D, F, I damages, 81–83, 98, 102, 103, 105, 108, 115, 119, 123–125, 146, 147, 149, 152, 156, 159, 163, 166, 183 deadweight loss, 127, 184 FRAND License, 136–138, 142, 146, 147, 150, 151, 156, 157, 164–166, 170 incentives, 1–4, 7–11, 24, 26, 79, 83, 95, 113, 120, 126, 127, 129, 132, 142, 169, 175, 180–182, 190, 203 injunction, 69, 82, 83, 98, 103, 119– 121, 128, 136, 139, 140, 142, 145– 149, 150–153 InnoCentive, 47, 208, 211 innovation prize, 8, 177, 182–184, 187, 192 intangible asset, 1, 26, 29–38, 51 Intellectual Ventures, 47, 51, 52 intermediation platform, 211 J, L, O judiciarization, 194 jurisprudence, 71, 79, 83, 95, 134, 136, 145, 148, 150, 154, 168 low carbon innovation, 179, 189–191 open innovation, 47, 178, 192–194, 198, 199, 203–206, 208, 212 P patent ambush, 128, 159, 160 assertion entities (PAE), 79, 115, 129, 135, 210 breadth, 20, 21, 97, 204 delimitation, 23, 42 demography, 56, 57, 65 examination, 42, 66, 72 hold up, 112 length, 18, 185 litigation, 111, 121, 131, 163, 165 pool, 23, 47, 144, 164, 193–198, 201 reforms, 94 Patents: Prompting or Restricting Innovation? First Edition Marc Baudry and Béatrice Dumont © ISTE Ltd 2017 Published by ISTE Ltd and John Wiley & Sons, Inc www.ebook3000.com 252 Patents stacking, 55, 111, 113, 115, 118, 121, 127, 129, 131, 134, 139, 142, 162, 163, 164, 168, 174, 210 troll, 55, 75, 92, 115, 129 value, 39 patentability criteria, 94 price fundamentalism, 189, 190 productivity gains, 63–65 R, S R&D cooperation, 50, 192, 193, 198– 201, 204–206, 208, 216 R&D support, 183, 187 regulatory change, 58 SCOPUS, 77, 78 signal, 2, 26, 29, 39–44, 130, 185, 189, 191, 203, 206, 208, 210, 212 sovereign funds, 47, 172, 174 standard essential patent (SEP), 112, 136, 141, 154, 158, 160, 163, 193, T, U, V Tesla, 6, 211–213, 216 tragedy of the anticommons, 24 unified court, 97–103, 106, 108, unitary patent, 56, 97, 99–109, 128 venture capital, 41, 43, 44, 52, 123, 189, 206 Other titles from in Innovation, Entrepreneurship and Management 2017 ẠT-EL-HADJ Smạl The Ongoing Technological System (Smart Innovation Set – Volume 11) BAUDRY Marc, DUMONT Béatrice Patents: Prompting or Restricting Innovation? (Smart Innovation Set – Volume 12) CHALENÇON Ludivine Location Strategies and Value Creation of International Mergers and Acquisitions CHAUVEL Danièle, BORZILLO Stefano The Innovative Company: An Ill-defined Object (Innovation Between Risk and Reward Set – Volume 1) CORSI Patrick Going Past Limits To Growth D’ANDRIA Aude, GABARRET Inés Building 21st Century Entrepreneurship (Innovation and Technology Set – Volume 2) www.ebook3000.com GUILHON Bernard Innovation and Production Ecosystems (Innovation between Risk and Reward Set – Volume 2) LEBERT Didier, EL YOUNSI Hafida International Specialization Dynamics (Smart Innovation Set – Volume 9) MAESSCHALCK Marc Reflexive Governance for Research and Innovative Knowledge (Responsible Research and Innovation Set – Volume 6) MASSOTTE Pierre Ethics in Social Networking and Business Ethics in Social Networking and Business MASSOTTE Pierre, CORSI Patrick Smart Decisions in Complex Systems MEDINA Mercedes, HERRERO Mónica, URGELLÉS Alicia Current and Emerging Issues in the Audiovisual Industry (Diverse and Global Perspectives on Value Creation Set – Volume 1) MICHAUD Thomas Innovation, Between Science and Science Fiction (Smart Innovation Set – Volume 10) PELLÉ Sophie Business, Innovation and Responsibility (Responsible Research and Innovation Set – Volume 7) SAVIGNAC Emmanuelle The Gamification of Work: The Use of Games in the Workplace SUGAHARA Satoshi, DAIDJ Nabyla, USHIO Sumitaka Value Creation in Management Accounting and Strategic Management (Diverse and Global Perspectives on Value Creation Set – Volume 2) UZUNIDIS Dimitri, SAULAIS Pierre Innovation Engines: Entrepreneurs and Enterprises in a Turbulent World (Innovation in Engineering and Technology Set – Volume 1) 2016 BARBAROUX Pierre, ATTOUR Amel, SCHENK Eric Knowledge Management and Innovation (Smart Innovation Set – Volume 6) BEN BOUHENI Faten, AMMI Chantal, LEVY Aldo Banking Governance, Performance And Risk-Taking: Conventional Banks Vs Islamic Banks BOUTILLIER Sophie, CARRE Denis, LEVRATTO Nadine Entrepreneurial Ecosystems (Smart Innovation Set – Volume 2) BOUTILLIER Sophie, UZUNIDIS Dimitri The Entrepreneur (Smart Innovation Set – Volume 8) BOUVARD Patricia, SUZANNE Hervé Collective Intelligence Development in Business GALLAUD Delphine, LAPERCHE Blandine Circular Economy, Industrial Ecology and Short Supply Chains (Smart Innovation Set – Volume 4) GUERRIER Claudine Security and Privacy in the Digital Era (Innovation and Technology Set – Volume 1) MEGHOUAR Hicham Corporate Takeover Targets MONINO Jean-Louis, SEDKAOUI Soraya Big Data, Open Data and Data Development (Smart Innovation Set – Volume 3) MOREL Laure, LE ROUX Serge Fab Labs: Innovative User (Smart Innovation Set – Volume 5) PICARD Fabienne, TANGUY Corinne Innovations and Techno-ecological Transition (Smart Innovation Set – Volume 7) www.ebook3000.com 2015 CASADELLA Vanessa, LIU Zeting, UZUNIDIS Dimitri Innovation Capabilities and Economic Development in Open Economies (Smart Innovation Set – Volume 1) CORSI Patrick, MORIN Dominique Sequencing Apple’s DNA CORSI Patrick, NEAU Erwan Innovation Capability Maturity Model FAIVRE-TAVIGNOT Bénédicte Social Business and Base of the Pyramid GODÉ Cécile Team Coordination in Extreme Environments MAILLARD Pierre Competitive Quality and Innovation MASSOTTE Pierre, CORSI Patrick Operationalizing Sustainability MASSOTTE Pierre, CORSI Patrick Sustainability Calling 2014 DUBÉ Jean, LEGROS Diègo Spatial Econometrics Using Microdata LESCA Humbert, LESCA Nicolas Strategic Decisions and Weak Signals 2013 HABART-CORLOSQUET Marine, JANSSEN Jacques, MANCA Raimondo VaR Methodology for Non-Gaussian Finance 2012 DAL PONT Jean-Pierre Process Engineering and Industrial Management MAILLARD Pierre Competitive Quality Strategies POMEROL Jean-Charles Decision-Making and Action SZYLAR Christian UCITS Handbook 2011 LESCA Nicolas Environmental Scanning and Sustainable Development LESCA Nicolas, LESCA Humbert Weak Signals for Strategic Intelligence: Anticipation Tool for Managers MERCIER-LAURENT Eunika Innovation Ecosystems 2010 SZYLAR Christian Risk Management under UCITS III/IV 2009 COHEN Corine Business Intelligence ZANINETTI Jean-Marc Sustainable Development in the USA 2008 CORSi Patrick, DULIEU Mike The Marketing of Technology Intensive Products and Services DZEVER Sam, JAUSSAUD Jacques, ANDREOSSO Bernadette Evolving Corporate Structures and Cultures in Asia / Impact of Globalization 2007 AMMI Chantal Global Consumer Behavior 2006 BOUGHZALA Imed, ERMINE Jean-Louis Trends in Enterprise Knowledge Management www.ebook3000.com CORSI Patrick et al Innovation Engineering: the Power of Intangible Networks ... what is worth supporting or not before the invention is available and begins to spread Third, inventions can have belated success, unforeseen applications, or a context that is favorable for their... [GAL 10]) It could be invention patents, importation patents (a patent granted for a foreign invention, patented or not; the importation patent made it possible to import techniques likely to increase... intended for others However, smaller actors are also more subject to financial constraints In order to bypass these constraints, what is more logical than to turn to the financial actors for whom