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.     

Licensing and innovation with imperfect contract enforcement

Licensing promotes technology transfer and innovation, but enforcement of licensing contracts is often imperfect. We model contract enforcement as a game with perfect information but probabilistic enforcement and explore the implications of weak enforcement on the design of licensing contracts, the conduct of firms, and market performance. An upstream firm develops a technology that it can license to downstream firms using a fixed fee and a per‐unit royalty. Strictly positive per‐unit royalties maximize the licensor's profit if competition among licensees limits joint profits. With imperfect enforcement, the licensor lowers variable royalties to avoid cheating. Although imperfect contract enforcement reduces the profits of the licensor, weak enforcement lowers prices, increases downstream innovation, and in some circumstances can increase total economic welfare.     

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.     

Broad Cross‐License Negotiations

In many industries, broad cross‐license agreements are considered a useful method to obtain freedom to operate and to avoid patent litigation. In this paper, I study firm incentives to sign a broad cross‐license as well as the duration of broad cross‐license negotiations. I develop a model of bargaining with learning, which predicts that two firms will enter a broad cross‐license agreement only if their capital intensities are large enough. The model also predicts faster negotiations when firms have high capital intensities and when the frequency of future disputes is low. I confirm these predictions empirically using a novel data set on cross‐licensing and litigation in the US semiconductor industry.     

Whom to license patented technology

This paper examines the optimal licensing policy of a patent holder when potential licensees differ in their capacities in absorbing the patented technology. If two-part tariffs with non-negative royalties and fixed fees are feasible, the patent holder finds it optimal to license the strong firm exclusively whether or not an exclusive licensing of the weak firm deters the strong firm from entering the market. Hence, the potential trade-offs between strategic gains associated with licensing to weak competitors and efficiency gains associated with licensing to efficient competitors do not exist when two part tariffs are available. © 1998 John Wiley & Sons, Ltd.     

Choosing the partners in the licensing alliance

I consider a situation in which the incumbent strategically adopts the licensing alliance, facing potential entrants. The queue of entrants consists of two firms, the ‘strong’ entrant and the ‘weak’ entrant, who differ in their productivities. The incumbent sets a licensing fee and offers it to the entrants. Each entrant decides whether or not to buy the licensing alliance. After the set of the licensing alliance is determined, they engage in the Cournot competition. I examine the optimal licensing fee, and show that the optimal licensing fee is to charge a discriminatory royalty to each licensee. I also examine the licensing policy on the partner(s): To whom should the licensor license its technology? By comparing the equilibrium expected payoffs for the licensor, I show that licensing to both entrants would be preferred to licensing to a single entrant. But, if the licensor faces the problem on choosing the partner, he prefers the licensing of the weak entrant to the strong entrant. Copyright © 2006 John Wiley & Sons, Ltd.     

Determinants of licensing activities of local public technology centers in Japan

Local public technology centers are publicly managed institutions that facilitate technology transfer to small local firms. As well as providing small local firms with various technological services, local public technology centers conduct their own research and patent inventions. This study examines factors facilitating licensing activities and finds that the determinants vary according to the phase of technology transfer. Employing more Ph.D. scientists tends to promote the licensing of patents, while organizational efforts that encourage scientists to better understand the technological needs of small local firms tend to increase royalty revenue. The theoretical and practical implications of the results are discussed.     

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.     

Patent Settlements as a Barrier to Entry

We formulate a model of entry with two incumbent firms—a patent holder and an infringer—and a potential entrant, with asymmetric information about the validity of the infringed patent (patent strength) between incumbent firms and the entrant. Within this framework we show that patent settlements between the incumbent firms can be mutually beneficial even when the cost of trial is zero and the settlement agreement takes the form of a simple fixed license fee. For patents of intermediate strength, settlements are a tool for entry deterrence. The two parties agree on a high settlement amount which sends a credible signal to “outsiders” that the patent is not weak and therefore entry will not be profitable. This provides a novel explanation for the role of settlements and to the recent observation of high license fees negotiated in settlement agreements. It suggests that firms should disclose the settlement amount if they want to keep out further entrants. We also show that even nonreverse settlements that entail only a fixed fee can be anticompetitive because they are used to block entry.     

Markets for standardized technologies: Patent licensing with principle of proportionality

In this paper, we study the licensing of standard-related patents among companies that employ a two-level licensing model where (i) the aggregated value of technology in the end product is divided among the integrated technologies in the product, and (ii) the value of each technology is then shared among the patent owners in proportion to the strengths of their patent portfolios in these technologies. Specifically, we develop a system dynamics simulation model for analyzing the effects of licensing costs on product and technology markets. This model is based on the modeling of three types of companies whose interactions are analyzed using non-cooperative game theory. The numerical results suggest that none of the three companies benefit from very low or very high royalty rates. In this setting, our model for two-level proportional sharing of licensing payments helps identify royalty rates which benefit all types of companies and which provide incentives for technology development and innovation.     

Technology exploitation in the context of open innovation: Finding the right ‘job’ for your technology

In light of the recent economic crisis, many industrial firms attempt to capture additional value from their technologies by means of open innovation strategies. Besides acquiring external technology, many firms therefore increasingly try to license their own technology to other firms either exclusively or in addition to its application in their own products. This article shows that technology licensing offers important strategic benefits beyond generating licensing revenues, which underscore the need for an integrated management of technology licensing activities. Therefore, this article extends the concept of job-related markets that was recently developed in the managerial literature. A ‘job’ is the fundamental problem that a customer needs to resolve in a particular situation. Managers may transfer this job-related understanding to technology licensing activities because the right ‘job’ for a technology may be outside a firm’s boundaries, and it may help firms to identify additional licensing opportunities. On this basis, the article presents the concept of an integrated technology exploitation roadmap, which allows firms to use the job-related markets to integrate technology licensing in their strategic planning processes. An example of a machinery firm shows how this roadmap may contribute to strengthening a firm’s licensing business.     

标准化组织专利政策采用事先披露原则的利弊分析及改进模式探讨

技术标准涉及专利的对外许可一直都是在标准制定完成之后由专利权人或标准化组织与使用方谈判确定。VITA推出的新专利政策中在世界范围内第一次采用了事先披露原则,要求专利权人在标准制定之前,不仅要披露专利信息,还需披露许可条件。虽然这一专利政策草案通过了美国司法部的反垄断审查,但依然引起广泛争议。本文对事先披露原则的利弊进行了分析,在此基础上探讨了对事先披露许可费模式的改进思路——由标准化组织事先披露总许可费率的模式。     

Contributing to markets for technology? A comparison of patent filing motives of individual inventors,small companies and universities

We compare patenting motives of individual inventors, small firms, and universities to those of large firms. We use data from a survey (641 responses) among applicants at the European Patent Office. Our results from regression and factor analyses confirm significant differences among applicant types. The generation of licensing opportunities is rated as being more important if the applicant is a university, individual inventor or small firm. Blocking and prevention of imitation is rated as being less important if the applicant is a university. We interpret that this finding results from the universities' willingness to license under adequate conditions and their tendency not to use their patents for preventing the diffusion of their technology and its usage by others. Individual inventors and small firms place a higher importance on using patents as signals to investors, suggesting that patents are perceived as useful to secure access to the capital necessary to start or grow a business. Among all applicant groups, individual inventors attribute the most importance to blocking as a patent filing motive. This gives cause for concern because individuals who do not manufacture products on their own but, rather, use their patents to block others from production act as patent trolls.     

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.     

What induces firms to license foreign technologies? International survey evidence

The paper provides insights into drivers of foreign technology licensing from the licensee's perspective, using data across 114 nations. Technology licensing enables licensees to access proven technologies without development delays, although licensors might deny licenses for strategic reasons. Results show that firms with own R&D are more likely to license foreign technologies, as are larger firms and firms in the nations' main business cities. However, the macroeconomic and institutional environment matters as well: domestic interest rates, informal sector competition, and the literacy of a country's labor force all impact foreign technology licensing. Some implications for technology policy are discussed.     

Welfare improving licensing with endogenous choice of prices versus quantities

This paper investigates the endogenous choice of prices versus quantities by taking into account patent licensing where the patent holder, which is itself a producer within the industry, licenses its cost-reducing innovation to the rival firm through a two-part tariff contract. For substitute products we find that both Cournot and mixed price-quantity competition may constitute the equilibrium outcomes, depending on the innovation size. Contrary to the results in Fauli-Oller and Sandonis (2002), we show that the optimal licensing contract definitely leads to an increase in social welfare. Our result reinforces the positive welfare effect of patent licensing.     

Managing technology licensing for stochastic R&D: from the perspective of an enterprise information system

Enterprise information technology (IT) plays an important role in technology innovation management for high-tech enterprises. However, to date most studies on enterprise technology innovation have assumed that the research and development (R&D) outcome is certain. This assumption does not always hold in practice. Motivated by the current practice of some IT industries, we establish a three-stage duopoly game model, including the R&D stage, the licensing stage and the output stage, to investigate the influence of bargaining power and technology spillover on the optimal licensing policy for the innovating enterprise when the outcome of R&D is uncertain. Our results demonstrate that (1) if the licensor has low (high) bargaining power, fixed-fee (royalty) licensing is always superior to royalty (fixed-fee) licensing to the licensor regardless of technology spillover; (2) if the licensor has moderate bargaining power and technology spillover is low (high) as well, fixed-fee (royalty) licensing is superior to royalty (fixed-fee) licensing; (3) under two-part tariff licensing and the assumption of licensors with full bargaining power, if a negative prepaid fixed fee is not allowed, two-part tariff licensing is equivalent to royalty licensing which is the optimal licensing policy; if negative prepaid fixed fee is allowed, the optimal policy is two-part tariff licensing.     

Licensing a new product: Fee vs. royalty licensing with unionized labor market

In an economy with unionized labor market, we show that the payoff of an outside innovator may be higher under royalty licensing than under fixed-fee licensing and auction, if bargaining power of the labor union is sufficiently high. This result holds for both decentralized and centralized bargaining. It follows from our analysis that a combination of fixed-fee and output royalty can be preferable to the innovator compared to both royalty only licensing and auction (or fixed-fee licensing). We discuss the implications of positive opportunity costs of the licensees.     

An Analysis of Pure-Revenue Technology Licensing

This paper analyzes the incentives of patentholders to license their technologies for pure-revenue reasons. We hypothesize that this decision is mainly driven by characteristics of the innovation, which determine its technological attractiveness, the relevance of transaction costs in its transfer and the importance of the competition effect. By using the NBER Patent Citations Database and an original dataset of patented technologies devoted to license in an Internet marketplace, we find that importance, innovativeness, fit into the firm's core and scope of the innovation affect the patentholder's willingness to license it. Results increase our awareness on the drivers of technology licensing decisions.     

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.