The advent of 5G and the non-discrimination principle

5G promises to be a game changer for the extended connectivity-based value chain, encompassing a much broader set of digitalized industries than previous solutions. By reshaping competition among market players and among technologies, it changes the trade-offs underlying the application of the non-discrimination principle. In this paper, we provide a unified view of the implications of these technological developments for four instantiations of this principle that span the entire digital value chain: non-discrimination in FRAND licensing of standard-essential patents (SEPs), vertical separation remedies, network neutrality and technological neutrality. We conclude that overly rigid and non-technology neutral interpretations of the non-discrimination requirement would be at odds with technological evolution and would be incompatible with the objective to maximize the overall value of digital networks.     

Appropriability,preemption, and firm performance

The impact of strategies used to appropriate innovation rents on firm performance is analyzed using a sample of U.S. public manufacturing firms. Stronger appropriability at the firm level, achieved through patent protection or the ownership of specialized complementary assets, leads to superior economic performance, as measured by the stock market valuation of a firm's R& D assets. Among commonly used ‘nonconventional’ patent strategies, preemptive patenting allows incumbents to strengthen their market power. Consistent with theory, such effect is higher for incumbents with higher ex ante market power and facing a higher threat of entry, and lower when R& D competition is characterized by the discovery of drastic innovations. Copyright © 2008 John Wiley & Sons, Ltd.     

Ex ante or ex post competition policy? A progress report

When intervening in markets, say to block a merger, competition authorities are constrained by the limited information they have about the social desirability of the available alternatives. Compared to ex ante control, ex post control is based on the more accurate information that becomes available in the intervening period, but entails temporary losses to social welfare and reversal costs incurred to unscramble the eggs. Through a toy model, we identify situations in which the competition authority finds it optimal to commit to forego the option of ex post review in order to avoid chilling ex ante socially beneficial mergers. On the other hand, the case for ex post review is strengthened if post-merger market conducts can signal the merged firm's private information about the consequences of the merger.     

Pay-for-delay patent settlement,generic entry and welfare

“Pay-for-delay” settlement (P4D), in which the brand patentee reversely pays the generic infringer to delay market entry, is typically criticized for blocking competition but is often excused for its potential to maintain innovation. We present a game-theoretic model to show that when the generic firm’s entry decision is endogenized, P4D can actually increase ex post competition under certain conditions. We further explore the impact of P4D on ex ante innovation and find that the brand’s innovation incentive may increase or decrease, depending on the generic firm’s entry cost and other factors. Our findings contribute to the ongoing P4D debate by identifying conditions under which (1) P4D can improve consumer surplus and (2) the trade-off between competition and innovation can be reconciled.     

Licensing Strategies in the Presence of Patent Thickets

Many key industries (e.g., biomedical, pharmaceuticals, telecommunications, and information technologies) are characterized by cumulative innovations, where the introduction of a new product or service often requires many complementary technologies. When these technologies are protected by intellectual property rights owned by many firms, patent thickets exist, which researchers have argued may hinder the development of cumulative innovations. Specifically, patent thickets may lead to excessive royalty burdens for potential licensees, which is called “royalty stacking,” and if such costs are passed on to consumers, prices of products based on cumulative technologies will be driven up, dubbed as “double marginalization.” The literature, however, does not address these issues under different forms of licensing contracts. This article develops a game‐theoretic model where a downstream firm seeks to license N patents that read on its product from upstream firms. It discusses a variety of licensing forms widely used in practice and attempts to discover whether royalty stacking and double marginalization occur under these forms of licenses. It also studies the impact of bargaining power between parties. It is found that when patent ownership becomes more fragmented, neither royalty stacking nor double marginalization occurs under profit‐based royalty, fixed fee, and hybrid licenses. Such problems occur only under pure quantity‐based or pure revenue‐based royalty licenses when the downstream firm's bargaining power is low. It is also shown that no matter how fragmented the ownership structure of patent is, hybrid licenses consisting of a fixed fee and a quantity‐ or revenue‐based royalty rate lead to the same market outcomes as a fully integrated firm that owns all the patents and the downstream market. This article has interesting implications for both research and practice. First, the results show that even under the same patent ownership structure, different forms of licenses lead to quite different market outcomes. Therefore, it is suggested that firms and policy makers pay more attention to contractual forms of licenses when trying to minimize the negative impact of patent thickets. Second, the extant literature has largely assumed that quantity‐based royalties are used, where double marginalization is the most severe. In practice, revenue‐based royalties are most common, under which double marginalization is much milder. Third, the results show that patent pools can be most effective in mitigating royalty stacking and double marginalization when quantity‐based or revenue‐based royalties are the sole or primary payment form, especially when downstream firms have low bargaining power.     

Is telecommunications regulation efficient? An international perspective

This article addresses the efficiency of regulation policy in the telecommunications sector. First, the concepts of static and dynamic efficiency are reviewed, with the main policies used into achieve these goals identified, while distinguishing effective competition from industrial policy. Indicators are proposed that enable assessment of components of sector efficiency. These indicators are used to empirically investigate the link between regulation policy and economic performance for OECD Member Countries. The investigation is based on national differences in regulation policy and efficiency indicators. The results support the notion that asymmetrical ex ante regulation alone is not necessarily efficient, and that an ex ante policy, integrating an industrial policy, could favor dynamic efficiency.     

Strategic determinants of decisions not to settle patent litigation

Settlement outcomes in patent litigation are modeled as resulting from strategies pursued by firms with their patented technologies. Hypotheses are derived for two types of influences: the use of patents as isolating mechanisms to protect valuable strategic stakes, and their ‘defensive’ role in obtaining access to external technologies through mutual hold‐up. Parameter estimates from a sample selection probit model provide support for the strategic stakes hypotheses, while the evidence for mutual hold‐up is inconclusive. Interindustry comparisons show that nonsettlement of patent suits in both research medicines and computers is increased by strategic stakes and, in addition, mutual hold‐up appears to play an important role in computer patent suits. Copyright © 2003 John Wiley & Sons, Ltd.     

On the competitive effects of vertical integration by a research laboratory

An independent research laboratory owns a patented process innovation ready to be used by an industry that produces differentiated goods. We analyze whether the laboratory prefers to license the innovation as an external patentee or to merge with one of the firms in the industry, licensing the innovation as an internal patentee. Under linear demand and Cournot competition, we show first, that the vertical merger is profitable only in the case of small innovations, whereas a merger increases welfare only for significant innovations; second, all profitable vertical mergers reduce welfare. However, some profitable mergers are welfare improving under price competition.     

企业专利实施及其对策

企业专利实施是企业专利由潜在的生产力转化为现实生产力的重要途径，也是企业技术创新的重要形式。但目前我国专利实施情况仍然不够理想。为此，需要重视促进我国专利实施的对策。这些对策如：将专利实施纳入企业的技术开发和经营管理体系；建立产学研技术开发与转移模式；大力开展专利技术许可证贸易，完善技术市场制度等。     

The cornerstones of competitive advantage: A resource-based view

This paper elucidates the underlying economics of the resource-based view of competitive advantage and integrates existing perspectives into a parsimonious model of resources and firm performance. The essence of this model is that four conditions underlie sustained competitive advantage, all of which must be met. These include superior resources (heterogeneity within an industry), ex post limits to competition, imperfect resource mobility, and ex ante limits to competition. In the concluding section, applications of the model for both single business strategy and corporate strategy are discussed.     

‘Essential’ Patents,FRAND Royalties and Technological Standards

Standard Setting Organizations have developed FRAND agreements in order to prevent firms from holding up other participants once a standard is created. We analyze here the consequences of such agreements—in particular the requirements of fairness and non-discrimination—for the creation of technological standards that require the participation of existing patent holders. We abandon the usual assumption that patents bring known benefits to the industry or that their benefits are known to all parties. When royalty payments are increasing in one's patent portfolio, as is implicitly the case in FRAND agreements, private information about the quality of patents leads to a variety of distortions, in particular the incentives of firms to ‘pad’ by contributing patents that are ‘inessential’ for the given standard, a phenomenon that seems to be widespread. Several results emerge from the analysis: (i) the number of inessential patents co-varies positively with the number of essential patents; (ii) there is over-investment relative to the second-best, that is when padding cannot be avoided and (iii) the threat of disputes reduces incentives to pad but at the cost of lower production of strong patents; (iv) mitigating this undesirable side-effect calls for a simultaneous increase in the cost of padding, through a better filtering of patent applications.     

Per unit vs. ad valorem royalties under asymmetric information

We study an inside patent holder's optimal licensing policy when it has imperfect information about the value of the patent to its rival. The patent holder can choose any two-part licensing fee with either per unit or ad valorem royalties. We demonstrate that the equilibrium will be either a fully separating contract with different per unit royalty rates, or a contract with a single ad valorem royalty that excludes a high cost rival. Fixed fees will not be used. The presence of asymmetric information uniquely drives the per unit royalties that otherwise would not be adopted. Per unit royalties always generate higher social welfare than ad valorem royalties.     

Development of 5G – Identifying organizations active in publishing,patenting, and standardization

Publications, patents, standard-essential patents (SEPs), and standard contributions are important indicators for the drivers in the technology development of 5G. However, current 5G technology reports predominately draw on patent data to identify technology developing organizations, ignoring the importance of publications and standard contributions. Therefore, we identify 5G technology developing organizations in publishing, patenting, and standardization and compile a unique dataset to identify leading organizations per category and to identify possible correlations and interdependencies. We find that for companies offering fair, reasonable, and non-discriminatory (FRAND) licensing conditions related to standard-essential patents, their publication, patent, and standard contribution counts highly correlate. Our findings suggest that 5G technology developing companies holding a high number of patents declared to 5G manage the three contributing factors of publishing, patenting, and standardization to optimize their impact on 5G technology development. Furthermore, we show that patenting and standardization are dominated by a few large companies from the United States, China, Korea, Japan, Finland, and Sweden, while publishing is much more globally distributed and not as concentrated. Our research suggests that scientific findings can be more easily published via scientific journals and that barriers might hinder filing patents and participating in standardization committees focusing on 5G, which only large companies overcome.     

Patent characteristics and the age-value relationship: study of OceanTomo auctioned US singleton patents for the period 2006–2008

The article characterizes high and low value patents based on the non-linearity of the age-value relationship, as an attempt to provide some statistical understanding on the difference in the value of patent characteristics over time. A set of 138 US singleton patents, mainly from the computers and communication field, successfully auctioned by an US auction firm called OceanTomo during 2006–2008 forms the data. Analysis shows evidence of non-linearity in the patent age-value relationship and the sensitivity of patent characteristics to temporal dimension in explaining value of patented knowledge. The U-shaped temporal value of knowledge, identifying older patented knowledge as more valuable, thus, finds support. Furthermore, patents sold in their first half exhibit more lag, less patent scope and less forward citations. Patents sold by firms dominate the younger patent, while the older patent cohort finds more patents sold by individuals. These and other results are discussed for their significance for patent sale. We acknowledge the limitations of a small sample size. Nevertheless, the article provides statistical understanding on the potential characteristics of high and low value patents, explored through the non-linear age value dynamics.     

Grantbacks,territorial restraints,and innovation

We analyse the effect of grantback clauses in licensing contracts. While competition authorities fear that grantback clauses might decrease the licensee's ex post incentives to innovate, a standard defence is that grantback clauses are required for the patent-owner to agree to license its technology in the first place. We examine the validity of this “but for” defence and the equilibrium effect of grantback clauses on the innovation incentives of the licensee for both non-severable and severable innovations, which roughly correspond to infringing and non-infringing innovations. We show that grantback clauses do not increase the patent-holder's incentives to license when non-severable innovations are at stake but they do when severable innovations are concerned – suggesting that the “but for” defence might be valid for severable innovations but not for non-severable ones, in direct contradiction to regulation in some jurisdictions. Moreover we show that, for severable innovations, grantback clauses can increase the range of parameters for which follow-on innovation by the licensee occurs. Our work extends the large literature on sequential innovation to an environment where information diffuses through licensing rather than through the mere act of patenting. In this different informational set up we show that Green and Scotchmer (1995)’s conclusion that the initial innovator should have a patent of infinite breadth no longer holds.     

Licensing information goods

A significant amount of research on patent licensing and the diffusion of knowledge is organized around static frameworks of analysis. Patent holders, however, may face a dynamic problem, namely the intertemporal consistency problem of the durable-goods monopolist that is induced by durability on the demand side. Licensing practices such as exclusive licensing contracts and most favored customer clauses allow patentees to solve or mitigate this dynamic consistency problem. There are situations, however, where these practices are not possible either due to the nature of the patent (the case of information goods) or due to compulsory patenting laws. We study the effects of the intertemporal consistency problem on patent licensing in these situations. Relative to the existing literature, we obtain the following main results: (i) all of the firms that remain in the industry will be using the innovation; (ii) royalty licensing may be superior to fixed-fee or auction licensing from the licensor's point of view; (iii) social welfare and consumer surplus may be lower than when the patent holder can commit not to make additional sales; (iv) even for non-drastic innovations, the price of the good that is produced may be lower than the competitive price corresponding to the initial situation (before the innovation was discovered).     

Patent Hold‐Up and Antitrust: How A Well‐Intentioned Rule Could Retard Innovation

Licensing technology essential to a standard can present a hold‐up problem. After designing new products incorporating a standard, a manufacturer could be confronted by an innovator asserting patent rights to essential technology. This hold‐up problem can be solved with a damages remedy provided by antitrust or some other body of law, but a damages remedy can reduce the innovator's licensing revenue and thereby retard innovation. The availability of an ex post damages remedy also alters the licensing terms in ex ante bargaining with the result that fewer socially beneficial R&D projects are undertaken.     

A firm's capability to calibrate supply chain knowledge—Antecedents and consequences

This paper proposes a conceptual model for a firm's capability to calibrate supply chain knowledge (CCK). Knowledge calibration is achieved when there is a match between managers’ ex ante confidence in the accuracy of held knowledge and the ex post accuracy of that knowledge. Knowledge calibration is closely related to knowledge utility or willingness to use the available ex ante knowledge: a manager uses the ex ante knowledge if he/she is confident in the accuracy of that knowledge, and does not use it or uses it with reservation, when the confidence is low. Thus, knowledge calibration attained through the firm's CCK enables managers to deal with incomplete and uncertain information and enhances quality of decisions. In the supply chain context, although demand- and supply-related knowledge is available, supply chain inefficiencies, such as the bullwhip effect, remain. These issues may be caused not by a lack of knowledge but by a firm's lack of capability to sense potential disagreement between knowledge accuracy and confidence. Therefore, this paper contributes to the understanding of supply chain knowledge utilization by defining CCK and identifying a set of antecedents and consequences of CCK in the supply chain context.     

Exclusivity in licensing alliances: using hostages to support technology commercialization

We examine why exclusivity provisions are used in licensing alliances, and when restrictions in licensing scope (e.g., by product or geography) accompany these exclusivity provisions. We find broad support for the proposition that these features are associated with the contractual challenges of allying with licensees when they contribute valuable complementary capabilities toward the commercialization of licensed technologies. Evidence from our data suggests that exclusivity is used as a contractual hostage to safeguard licensee investments in complementary assets and to enable contracting over early stage technologies. Scope restrictions are employed to balance the tradeoffs between the value creation made possible by licensee complementary capabilities and the transactional hazards entailed in working exclusively with licensees. Our results also suggest that scope restrictions and other formal safeguards may be substitute mechanisms for managing similar transactional concerns in licensing alliances. Copyright © 2010 John Wiley & Sons, Ltd.     

Entangled decisions: Knowledge interdependencies and terminations of patented inventions in the pharmaceutical industry

Research Summary : This study explores the role of knowledge interdependencies on the termination of patented inventions. Termination refers to the abandonment of inventive efforts that are no longer deemed promising. We argue that high interdependencies between an inventive effort and the other inventions in the same research program will increase the cognitive burden on managers and decrease the likelihood of termination. Further, in the presence of interdependencies, managers are likely to rely on heuristics for termination decisions. We focus on two such heuristics: interdependencies of an invention with those in other research programs and the level of external competition in the research program. We test our hypotheses with longitudinal data on patent terminations through non‐payment of renewal fees in the pharmaceutical industry. Managerial Summary : Effective management of innovation portfolios requires termination of opportunities that are no longer promising. Most current tools on termination assume that opportunities to be evaluated are independent from one another. This assumption may limit their usefulness in increasingly complex research domains, such as pharmaceutical R&D. In this study, we investigate how interdependencies among inventions influence firms' tendency to terminate those inventions. Our results on patent terminations show that a patent that is more interdependent with other patents in the same research program is less likely to be terminated. This suggests that managers may have difficulty in evaluating the inherent value of interdependent opportunities. This result is stronger when the patent is less interdependent with those in other research programs or in a more competitive area.