externality effects when ownership is distributed and owners do not take account of the effects upon others of their own price-setting decisions.20
The “efficient” scientific resource commons therefore should not bundle together extraneous intellectual property, and the contents should instead to restricted to collections of research tools (including data and information) that will be close complements—in that they already constitute an actual patent “thicket” that could block downstream use and elaboration the research tools, or are expected to be regularly used on conjunction with one another in exploratory data search and analyses. An objective empirical procedure for establishing the likelihood that a collection of patents (or copyrights) is an obstructive “thicket” would be particularly useful in addressing this issue. It is relevant to notice the proposal and practical demonstration by Gregory Clarkson21 of a method of using network analysis to discover patent thickets and disqualify them as ineligible for efficient pool status. Nevertheless, dual pricing policies by foundations operating research resource commons, potentially would be subject to abuse, and competition among those entities will be quite limited if they are successful in internalizing complementarities among research tools. Therefore, there seems an inescapable conclusion that there would be a need for continuing monitoring and vigorous antitrust supervision of these new institutional arrangements.
If you begin to look ahead on the path that would be opened by a coordinated program of commons formation to break the constraints imposed by extensive IPR restrictions on research tools, it appears possible that an desired outcome could be the retrieval from universities a lot of their patented material, much of which never even has a license issued on it and some of it which is used to form blocking patents. When we get further into the development of nanotechnologies, we will have entered the first major research domain where virtually all the fundamental tools will have been patented, many by universities. This will be a very different situation from that of the biotechnology revolution of the early 1970’s, when Cohen-Boyer patent on restriction enzyme techniques was licensed on nonexclusive basis at very low rates—$5,000 was the flat rate for the Cohen-Boyer license. In the future, by contrast, the consequence of extensive academic and public institute patenting during the past three decades will mean that many of the necessary tools for continuing advance in the new fields of application are proprietary. Cleaning up after that parade, and thereby opening the way for future scientific advances will be important task, to which the institution of the contractually constructed research resource commons can contribute.
20 The substantial literature has recently developed in economics on the topic of “efficient pools” is directly relevant in this context. See, e.g., J. Lerner and J. Tirole, “Efficient Patent Pools,” NBER Working Paper, 2002; C. Shapiro, “Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting,” Innovation Policy and the Economy, 1, 2000: pp. 119-150; M. A. Lemly and C. Shapiro, “Patent Hold-up and Royalty-Stacking,” Texas Law Review, 2007. [Available at: http://faculty.haas.berkeley.edu/shapiro/stacking].
21 See G. Clarkson, “Objective Identification of Patent Thickets,” Harvard Business School Working Paper, version 3.9, 2004.