Licensing standard-essential patents with costly enforcement

We study the interaction between the holder of a standard-essential patent (SEP) and two downstream firms using the patented technology to design standard-compliant products. The SEP holder approaches the downstream firms simultaneously in the shadow of patent litigation and is subject to fair, reasonable, and non-discriminatory licensing requirements. We show that the patent holder faces a litigation credibility constraint and a license acceptability constraint when setting its licensing terms. For patents of intermediate strength, there is no royalty that allows the patent holder to reconcile these constraints. Consequently, it cannot license its technology and must go to court against infringers. We show that the availability of an injunction improves the patent holder's ability to license its technology, but it tends to inflate the royalty rate for implementers.     

基于博弈的专利诉讼与交叉许可决策研究

随着企业研发能力和知识产权保护意识的逐渐增强,越来越多的企业通过建立专利壁垒来保证自身的持续竞争力与市场地位。"专利丛林"的现象导致企业进行技术创新以及新产品的开发举步维艰。为了节省成本,科技企业之间相互的专利侵权现象时有发生。面对相互的专利侵权现象,有的企业运用专利诉讼的手段与对方发起"专利大战"以维持自身的竞争优势,也有的企业通过专利的交叉许可协议,与对方建立长期的专利合作关系。本文通过构建博弈模型,研究了企业进行专利诉讼以及交叉许可的选择决策的机理。     

Knowledge spillovers in US patents: A dynamic patent intensity model with secret common innovation factors

During the past two decades, innovations protected by patents have played a key role in business strategies. This fact enhanced studies of the determinants of patents and the impact of patents on innovation and competitive advantage. Sustaining competitive advantages is as important as creating them. Patents help sustaining competitive advantages by increasing the production cost of competitors, by signaling a better quality of products and by serving as barriers to entry. If patents are rewards for innovation, more R&D should be reflected in more patent applications but this is not the end of the story. There is empirical evidence showing that patents through time are becoming easier to get and more valuable to the firm due to increasing damage awards from infringers. These facts question the constant and static nature of the relationship between R&D and patents. Furthermore, innovation creates important knowledge spillovers due to its imperfect appropriability. Our paper investigates these dynamic effects using US patent data from 1979 to 2000 with alternative model specifications for patent counts. We introduce a general dynamic count panel data model with dynamic observable and unobservable spillovers, which encompasses previous models, is able to control for the endogeneity of R&D and therefore can be consistently estimated by maximum likelihood. Apart from allowing for firm specific fixed and random effects, we introduce a common unobserved component, or secret stock of knowledge, that affects differently the propensity to patent of each firm across sectors due to their different absorptive capacity.     

PATENT ENFORCEMENT: A REVIEW OF THE LITERATURE

Without the confidence that patent rights can be enforced quickly and efficiently, when needed, the patent system will not stimulate innovation. For this reason, governments, academics, international institutions and the private sector have poured significant resources into gathering and analysing statistics on patent enforcement over the last two decades. This paper reviews these studies and finds that while infringement is relatively common, much enforcement occurs informally and less than 1–2% of patents incur litigation. New strategic uses of the enforcement system, especially by nonpracticing entities, are the major emerging enforcement issue, especially in the United States. While the old problem of litigation costs attracts the lion's share of empirical attention, it has produced remarkably few solutions to date.     

A theory of socially inefficient patent holdout

This paper proposes a framework to analyze holdout in patent licensing negotiations. We show that when the validity of a patent is probabilistic, a potential downstream user has incentives to shun to pay the price offered by a patent holder to license the technology and risk being brought to court. These incentives are exacerbated when jurisdictions are local, and the downstream producer can approach courts sequentially. The informational spillovers across trials imply that this firm often finds optimal to go to court aiming to invalidate the patent in a jurisdiction due to the knock-on effect on future jurisdictions. This process results in excessive litigation compared to when the jurisdiction is global. The distortions from sequential litigation are likely to be aggravated when final competition is accounted for or when patent injunctions are not allowed.     

奇虎360科技有限公司专利管理地图分析

专利战略对于企业取得经济利益、获取竞争优势有着重要作用。本文运用专利管理地图分析方法,对奇虎360科技有限公司的专利类型、专利年代趋势、技术领域构成、主要发明人和主要竞争对手进行了分析:奇虎科技专利申请以发明专利为主,专利申请质量较高;主要集中在电学和物理两大技术领域;奇虎360发明人研发实力较强,其专利技术生命周期正处在由发展期向成熟期转变阶段。在互联网安全专利竞争领域,奇虎科技相对直接竞争对手占较大优势。文章最后对未来360专利战略的专利申请数量质量、专利人力资源管理、专利竞争对手监控、以及应对专利侵权纠纷方面提出相关建议。     

THE ROLE OF PATENTS IN INFORMATION AND COMMUNICATION TECHNOLOGIES: A SURVEY OF THE LITERATURE

During the last few decades, the number of patents in information and communication technologies has increased considerably. An increasing number of patents and the associated fragmentation of IP rights have generated a series of potentially problematic consequences. Patent thickets, royalty stacking, the emergence of patent assertion entities, increased patent litigation – particularly around standard essential patents – and the difficulties with defining fair, reasonable, and nondiscriminatory licensing terms are some of the most debated issues in the literature that we review in this paper. We devote a specific section of our survey to patent quality, currently one of the most debated issues surrounding the patent system. In our analysis, we mix theoretical and empirical arguments with a more policy‐oriented reasoning. This allows us to better position the different issues in the relevant political and economic context.     

Estimation of patent licensing value using a flexible demand specification

A patent owner who is considering licensing its patent to a competitor faces a dilemma. By giving a license to the competitor, the patent owner stands to lose profits due to increased competition. In order to be willing to license, therefore, the patent owner must receive a royalty that at least compensates for these lost profits. The minimum acceptable royalty depends upon the competitive impact the potential licensee's product would have on the patent owner's product. We describe how to estimate econometrically this competitive impact and how a patent owner might use this information to determine the minimum acceptable royalty. We discuss the advantages of using a flexible functional form for the demand system specification that underlies the competitive analysis. Finally, using an empirical example, we illustrate the large differences that can arise between results based on flexible forms versus non-flexible forms.     

Copyright Enforcement: Evidence from Two Field Experiments

Effective dispute resolution is important for reducing private and social costs. We study how resolution responds to changes in price and communication using a new, extensive data set of copyright infringement incidences by firms. The data cover two field experiments run by a large stock‐photography agency. We find that substantially reducing the requested amount generates a small increase in the settlement rate. However, for the same reduced request, a message informing infringers of the price reduction and acknowledging the possible unintentionality generates a large increase in the settlement rate; including a deadline further increases response rate. The small price effect, compared to the large message effect, can be explained by two countervailing effects of a lower price: an inducement to settle early, but a lower threat of escalation. Furthermore, acknowledging possible unintentionality may encourage settlement due to the typically inadvertent nature of these incidences. The resulting higher settlement rate prevents additional legal action and significantly reduces social costs.     

Infringing use as a path to legal consumption: Evidence from a field experiment

Digitization has transformed how users find and use copyrighted goods, but many existing legal options remain difficult to access, possibly leading to infringement. In a field experiment, we contact firms that are caught infringing on expensive digital images. E-mails to all firms include a link to the licensing page of the infringed image; for treated firms, we add links to a significantly cheaper licensing option. Making infringers aware of the cheaper option leads to a 14-fold increase in the ex-post licensing rate, albeit from an extremely low baseline for the control firms. Two additional experimental interventions, designed to reduce search costs for (i) price and (ii) product information, also have large positive effects. Our results suggest that ex-post monetization (e.g., licensing after use) may expand the market, and that rights holders can create value by minimizing search and transactions costs.     

Entry limiting agreements: First‐mover advantage,authorized generics,and pay‐for‐delay deals

During patent litigation, pay‐for‐delay (P4D) deals involve a payment from a patent holder of a branded drug to a generic drug manufacturer to delay entry and withdraw the patent challenge. In return for staying out of the market, the generic firm receives a payment, and/or an authorized licensed entry at a later date, but before the patent expiration. We examine why such deals are stable when there are multiple potential entrants. We combine the first‐mover advantage for the first generic with the ability of the branded manufacturer to launch an authorized generic (AG) to show when P4D deals are an equilibrium outcome. We further show that limiting a branded firm's ability to launch an AG before entry by a successful challenger will deter such deals. However, removing exclusivity period for the first generic challenger will not.     

INTELLECTUAL PROPERTY LITIGATION ACTIVITY IN THE USA

Abstract.  Brand names or trademarks carry incredible economic power and prestige. There is increasing recognition by world bodies that intellectual property (IP), whether manifested in patents, trademarks, copyrights or trade secrets, is highly valuable and must be protected through robust IP enforcement. The USA is an interesting natural laboratory as patent, trademark and copyright litigation battles have been raging domestically for some time. The paper discusses the four main forms of IP assets, the legal remedies that are available to enforce the property rights inherent in each type of IP asset, the basic damages theory relating to each form of IP, and how damages may be calculated when each type of asset is presumed to be infringed. The increased recognition of the value of IP has led to stronger enforcement of IP protection, an increase in IP litigation, and growing policy actions that are focused on how that protection should be manifested. An empirical analysis of how the IP litigation activity in the USA has changed over time is also presented.     

A SURVEY OF THE ECONOMICS OF PATENT SYSTEMS AND PROCEDURES

The last several decades have seen increases in patenting activity worldwide, as well as growing issues related to patent quality. In response to these quality issues a recent patent literature has emerged, that investigates the behavior and incentives of patent examiners, applicants, and third parties. In this paper, we provide an overview of patent procedures, patent systems and a survey of the new economic literature on patent systems. Both theoretical and empirical papers are considered. Policy implications coming from this literature are presented.     

Knowledge Flows,Patent Citations and the Impact of Science on Technology

Technological innovation depends on knowledge developed by scientific research. The number of citations made in patents to the scientific literature has been suggested as an indicator of this process of transfer of knowledge from science to technology. We provide an intersectoral insight into this indicator, by breaking down patent citations into a sector-to-sector matrix of knowledge flows. We then propose a method to analyze this matrix and construct various indicators of science intensity of sectors, and the pervasiveness of knowledge flows. Our results indicate that the traditional measure of the number of citations to science literature per patent captures important aspects of intersectoral knowledge flows, but that other aspects are not captured. In particular, we show that high science intensity implies that sectors are net suppliers of knowledge in the economic sector, but that science intensity does not say much about pervasiveness of either knowledge use or knowledge supply by sectors. We argue that these results are related to the specific and specialized nature of knowledge.     

Industrial awards as manifests of business performance: An empirical assessment

Although suppliers receive awards for various reasons, research on awards has mainly focused on those related to quality. We focus on other types of awards and enquire as to whether they relate to the supplier's financial performance. We investigate the relationship of operational awards by industrial customers and new product awards by industry forums on financial performance. We use long-term financial data for a large sample of suppliers to assess the relationships across product life cycle stages. Results indicate that during the growth stage, operational awards are associated with return on equity, whereas new product awards are associated with growth. As products mature, supplier and product awards both show an association with return on equity. A series of managerial implications are set forth and discussed.     

Factor market rivalry and interindustry competitive dynamics

We study competitive dynamics by using 10 years of data from the biotech industry on patent infringement lawsuits because they capture offensive actions and defensive responses. Results suggest that larger patent portfolios, long‐term partnerships, and short‐term agreements lead to factor market rivalry. Specifically, long‐term research partnerships are associated with lower proclivity and vulnerability to attack, while short‐term licensing and marketing agreements with increased proclivity and vulnerability to attack. Lastly, although nonbiotech companies attack biotech firms, the proclivity of the latter to launch cross‐industry attacks is not significant. We discuss how the results contribute to competitive dynamics research and theory.     

Licensing vs. Litigation: The Effect of the Legal System on Incentives to Innovate

With uncertain scope of patent protection and imperfect enforcement, the effective strength of patent protection is determined by the legal system. We analyze how the legal system affects the incentives of firms to innovate, taking into account possibilities of strategic licensing and litigation to deter imitation. The legal system that guarantees the patentee's monopoly power maximizes the R&D intensities. However, the legal system that induces licensing provides incentives to exert R&D effort while preserving ex post efficiency. We also compare R&D, patent licensing, and litigation behavior under American and English rules of legal cost allocation.     

Do We Still Need Cities? Evidence on Rates of Innovation from Count Data Models of Metropolitan Statistical Area Patents

Evidence of the importance of urban agglomeration and the offsetting effects of congestion are provided in a number of studies of productivity and wages. Little attention has been paid to this evidence in the economic growth literature, where the recent focus is on technological change. We extend the idea of agglomeration and congestion effects to the area of innovation by empirically looking for a nonlinear link between population density and patent activity. A panel data set consisting of observations on 302 USA metropolitan statistical areas (MSAs) over a 10-year period from 1990 to 1999 is utilized. Following the patent and R&D literature, models that account for the discreet nature of the dependent variable are employed. Strong evidence is found that agglomeration and congestion are important in explaining the vast differences in patent rates across US cities. The most important reason cities continue to exist, given the dramatic drop in transportation costs for physical goods over the last century, is probably related to the forces of agglomeration as they apply to knowledge spillovers. Therefore, the empirical investigation proposed here is an important part of understanding the viability of urban areas in the future.     

Getting Away with Robbery? Patenting Behavior with the Threat of Infringement

The paper examines how an innovator's ability to enforce her patent rights affects (and is affected by) her decision to patent her innovation and her patent breadth decision. Specifically, the paper shows that the innovator may find it optimal to patent her innovation even if litigation is not pursued in the event of patent imitation. The patent is valuable because it can be used to influence the entrant's location decision in a way that is profitable for the incumbent. In addition to showing that a patent need not be legally enforced to be valuable, the paper shows that the lower is the entrant's R&D cost, the smaller is the innovator's incentive to patent her product. If patenting occurs, however, the lower is the R&D cost, the greater is the patent breadth that could be chosen without triggering imitation.     

诉讼风险如何影响事务所低价揽客经济后果?——来自公司盈余管理的经验证据

近年来,会计师事务所低价揽客行为频发,其经济后果受到广泛关注。在此背景下,基于诉讼风险视角,实证检验事务所低价揽客行为对企业盈余管理的影响。研究发现,存在低价揽客行为的事务所审计的客户公司有着更高程度的盈余管理,但这种关系主要由非十大所的低价揽客行为所驱动;当诉讼风险增加时,事务所低价揽客与公司盈余管理之间的正向关系有所减弱,诉讼风险的这种调节作用主要存在于非十大所审计的企业以及进行正向盈余管理的企业中。这些结果表明,与大所相比,小所的低价揽客行为在加剧企业盈余管理方面产生的经济后果更为严重,而较高的诉讼风险可缓解这一行为带来的不良后果。因此,抑制企业盈余管理,应有针对性地规范小所的审计定价行为,加大其低价揽客行为的诉讼成本。