Innovation in the new tech industries. Looking for a consistent cooperative model

1. Introduction It is a common understanding that the modus procedendi of the technological progress follows different trajectories[1]. Whereas in some industries the inventive activity leads to stand–alone solutions, in others technical changes are interdependent [2]. In some of the latter it is science to create the technique in a continuous feed-back, and in this mutual retroactive exchange [3] new technical findings are tipically incremental and cumulative. In others, continuity is not between basic and applied research, but between each single technical advance realized in the common field of research which, as a result, has an economic value only in connection with the others. The patent system plays different roles in such multifaceted scenario. While in those fields where the whole research path does not require substantial investments and developments succeed rapidly [4] [5] patenting innovation may constitute a viable option; in those where each phase of the research is characterised by the very high costs and the very high risks of failure, to the promise for great benefits and the concern for possible unpredicted negative effects [6], patenting innovation is more than an alternative, being essential to compensate the enourmous underlying efforts [7]. Indeed, while the need to finance the research would suggest to postpone the moment of patentability, to later grant broad and absolute reserves; such a complicated choise could actually become a sort of ‘‘early appropriation’’, or information and scientific knowledge privatization, thus slowing innovation, of which that first “revelation” stands as a mere episode. What is interesting to note with reference to the latter sectors is that on one side innovation processes tend to be activated by big firms concentrating enormous resources and on the other side flexibility of the patent regime is invoked to reduce some of the limits of the underlying  technical problems, but rather to the expensive and patient experimentation work made by great teams of researchers. Because of the structural chacteristics of the innovation process, cooperative models, succeffully implemented in the information technology market [8], are examined in order to verify if and to which extent their transposition is able to speed up innovation through levers and incentives that meanwhile grant access and transfer to the findings achieved. 2. The modus procedendi of innovation in the new tech sectors As just mentioned, in the new technological sectors innovation process is naturally segmented in many subsequent steps. In such context, patenting is a fundamental resource for the existence and continuation of research, but when there are not objective reasons for it, it could facilitate the proliferation [9], the cohexistence and often the interdependence of several exclusive rights on the same or complementary inventions. As a result, in the new tech sectors costs to access the whole knowledge included in that very process increase dramatically [10] with the result that only big innovators may manage it. However, such access to the pyramid of blocks [11] may always be denied because of mutual and cross vetos [12] or even conditioned to restrictive discriminatory conditions [13] with harm both to competition and consumers [14]. Indeed these are ineluctable dangers, also because all the single phases of the innovation process are mutually complementary and interdependent, thus in order to use the last of them it is necessary to have access to the information each intermediate phase holds. It is no surprise, then, that the pyramid, hierarchical structure, or “cathedral” to say it with the promoters of the open source movement, of the innovation process poses many significant problems [15], to the researchers willing to follow that way, hampering the research process and, lastly, leadind to an under-utilization of innovation [16]. This is why it is necessary to device new mechanism to change the functioning of the net systems [17] so to prevent opportunistic behaviour that may be adopted in connection with the proliferation of patents as well as to establish some platform to access to and exchange knowledge [18], to exploit relevant positive externalities in order to constitute an alternative to the traditional models for technology use. In such a context, the net would play the role of intermediate [19], impeding any limitation to the access and thus to any form of stifling of further research. 3. The patent pool tecnique Pooling patents may be a sound choice [20] in order to transfer technology into new technological sectors, as the pool can impede information asymmetries, reduce transfer costs, facilitate the sharing of technological information [21] which would stay secret otherwise [22], avoid very high costs of possible legal disputes [23] [24]. A pool in fact is a form of cooperation, a vehicle to integrate omogenous or complementary resources, to share  the very high costs for setting up and maintaining a common organisation as well as the setting of a price per unit for the technological package to be sub-licenced, to licence under uniform conditions, to defer to a single entity the transactions concerning the rights managed by the pool [25]. Practically, like in electronic and telecommunication sectors [26], this would encourage the patent owners to give a licence on the technological knowledge of a certain innovation process to a third party, or to a body (the pool) engaged in its public management, that would have the duty to select information and relevant rights, to establish a system of impartial, transparent and non-discriminatory licences and sub-licences, to gather and redistribute royalties, as well as to promote and ensure the efficiency of the granted rights [27]. Pooling patents however may constitute a interesting solution for small and medium enterprices as they could benefit from the sharing of their knowhow, above all when they are not directly linked to the identification of a new technical solution [28]. In this respect, pooling resources may represent a very satisfactory answer for those enterprises that would not be able to realize on their own an innovation either because their technological resourses are insufficient or because they are unable to manage the economic risks connected with the underlying process [29]. Viceversa, enterprises whose researh and developments departments are strong enough to detect a new compound or to identify a new pharmaceutical as well as for those having unlimited access to capital are unwilling to share their technological knowhow. Besides, the new tech sectors do not share with the information tech markets the trend to standardization. Indeed standardisation is so essential in the information technologies that such request has stimulated the creation of a pool [30]. In the new tech sectors this is not the case [31]: in these fields there is no need for uniformation thus enterprises are not induced to share the technological know they hold, rather they would keep and defend it [32] or use it strategically [33]. For instance in the genetic sector a sole enterprise may hold complementary or somehow linked patents and because of this advantage may be not be interested to licence them. Also, it often happens in genetics that one innnovation, or several complementary innovations, holded by on only individual, if not granted in licence, block the innovation development, so that there wouls be a limited interest in making part of the pool both at the moment of its formation and later. Lastly, it must be considered that the pool can be unstable, since it is formed by subjects with many different interests. In other words, the companies active in the new tech sectors may consider the constitution and management of the pool an unsatisfactory alternative under a cost benefit analysis [34]. Being dishomogenous in terms of economic and cost structure and available resourses would make the pool they enjoy unstable [35] under different perspectives. They would not participate under equal terms to the costs connected to the management of the common structure, they would not be interested to fix a unique price for having access to their respective technological information and so on. Furthermore, grouping different patents in an only sub-licence could mean safeguarding null patents granted on fake innovations, or facilitating, or even strengthening anti-competitive [36], and thus illegal [37]. 4. The clearing house technique as a sound solution Alternatively [38], and in order to solve some of the above mentioned lacunae [39] a clearing houses [40] [41], or collecting societies [42] model may be used to shape the licences system. Basically, the so-called clearing house would set a platform, a virtual forum to exchange bilaterally any information, whether unprocessed data or technical knowledge even not patentable, referred to a certain innovation process. The functions of the clearing house could also evolve and become more articulated [43]: from facilitating the spread of knowledge through the creation of a free access data-bank allowing the picking up of interesting data, whether singled out or in a package [44], to intermediation for the access to and the use of freely shared information (according to the open source model) on the basis of standard licence agreements [45]. For such a mechanism to be efficient, at least wirh regard to the gathered information thouroughness and/or updating, all the subjects involved must cooperate persistently, as well as those very information must be clearly decodified. This is why the clearing house would preferably gather those information or inventions which hardly have the patent pre-requisites or such innovations which rights are so fragmented to be useful only through a collective negotiation. So much so, concerning the above-mentioned ideations an open source mechanism [46] is more and more advocated, in order to establsh some volunteer licence and sub-licence models to promote the sharing of the quid novi under standard procedures and even for free. Let alone some operational problems [47], it must be acknowledged that such an instrument, which could potentially reproduce the modus operandi of collecting societies [48], would presumably attract and gather small and medium enterprises or those inventors who can not introduce any innovation individually, but could get individual benefits from their participation in a common project and thus in the creation of common spaces, some sort of commons. Except further investigation [49], aiming at assessing if that model is able to exploit the externalities of the net it would create, in order to avoid the creation of super-monopolies [50], the clearing house mechanism should certainly allow the access to innovation under impartial, transparent and non-discriminatory conditions [51]. Nevertheless, with such a clearing house, the patent holder would voluntarily renounce to udìse his/her own typical exclusive rights, which consequently would be stoop to a form of remuneration, to a clearing tool. It is understood that the described model would not be able to grant, with regard to complex technologies, that the technological know how completing the patented or patentable idea [52], is kept secret. 5. Conclusions As it has been showen, the new technical sectors have some peculiar endogenous, maybe structural [53], limitations hampering and slowing down innovation. Basically such limitations are due to the concentration of the resources in research and development against an innovation process that is naturally segmented in many subsequent steps. In such scenario alternative business models are explored aiming at restoring the efficiency of the patent as far as tha access to and the transfer of technologies [54]. Among the others, those based on intrasectorial cooperation [55] [56] may constitute a sound solution because they are able to establish some a volounteer systems that may facilitate access and exchange of knowledge [57] and exploit relevant positive externalities, impeding any limitation to the access and thus to any form of stifling of further research. In this respect, the mechanism of pooling patents as well the clearing house system potentially can downgrade the absolute right to a credit claim and so to the right to a fair remuneration from those who use the invention also through intermediate bodies. Also, the new business model may be completed with other broadly tested techniques [58], adjusted if necessary, such as the compulsory licences [59], possibly joined to a cross licences. In such a perspective, it would be necessary to broaden the above-mentioned tools and coordinate them applying “open volunteer” mechanisms, in order to globally rectify the clear failure of the patent efficiency and take into due account the interests of the information property [60]. The above without jeopardising the patent pradigma but reinforcing its procompetitive dimension [61]. Notes * To be published in AA.VV., “Biotechnology and Software Patent Law: A Comparative Review on New Developments”, Edward Elgar, 2011. [1] Cfr. R. Nelson, S. Winter, An Evolutionary theory of Economic Change, 1982, 329; D. Sahal, Patterns Of Technological Innovation, 1982; G. Dosi, Technological Paradigms and Technological Trajectories: A Suggested Interpretation of the Determinants and Directions of Technical Change, in Res. Pol’y., 1982, 147. On the dynamics of innovation please see inter alia V. Falce, Profili pro-concorrenziali dell’istituto brevettuale, Giuffrè, 2008, Chapter II. [2] W. Landes defines the chemestry as ‘‘the most miscellaneous of industries’’ (ID, The Unbound Prometheus, 1969, 269). See also M. Bellenghi, Nuovo prodotto chimico: protezione brevettuale assoluta o limitata all’uso?, Riv. dir. ind., 1987, I, 183; G. Bergomi, La tutela brevettuale dell’intermedio, in I nuovi Brevetti, Milano, 1995, 110; V. Di Cataldo, La problematica delle invenzioni chimiche, in I nuovi Brevetti, Biotecnologie e invenzioni chimiche, Milano, 1995, 69; M. Blakeney, V. Di Cataldo, E. Arezzo, V. Falce, P. Errico, G. Dragotti, F. Antenucci, C. Brega, C. Signorini e L. Gallicani, Brevetti e biotecnologie, G. Ghidin and, G. Cavan Eds., 2007. [3] E. Kane, Patent Ineligibility: Maintaining A Scientific Public Domain, St. John’s L. Rev., 2006, 519. [4] R. Hart, P. Holmes, J. Reid, The Economic Impact of Patentability of Computer Programs, Study Contract, ETD/99/B5-3000/E/106, report to the European Commission on behalf of IP Institute, 2000; R. Scherer, New Perspectives on Economic Growth and Technological Innovation, 1999; E. Mansfield, Patents and Innovation, in Managem. Science, 1986, 173; P. Samuelson, A Manifesto Concerning the Legal Protection of Computer Programs, in Colum. L. Rev., 1994, 2308; S. Graham, D. Mowery, Intellectual Property Protection in the U.S. Software Industry, in Patents in the Knowledge-Based Economy, Wesley M. Cohen, Stephen A. Merrill Eds. 2003, available at http://faculty.haas.berkeley.edu/graham/unix/swconf.pdf. [5] According to Prof. Peritz “in markets exhibiting network effects, patents can increase the returns to the inventor even beyond those of the traditional monopoly, with two undesirable results: first, increased social costs of commercial incentive without evidence that the increase correspondingly enhanced innovation; second, over-incentives for inventors to enter such markets” (R. J.R. Peritz, Patents and Competition: Toward a Knowledge Theory of Progress, Paper presented at Atrip Annual Conference, Parma, 9-11 september  2006. On the intersection with competition law see also J. L. Rubin, Patents, antitrust and rivalry in standard setting, Rutgers Law Journal, 2007, 38; G. Ghidini, E. Arezzo, On the Intersection of IPRs and Competition Law with regard to information technology markets, in The Interaction Between Competition Law and Intellectual Property Law, Hart Publishing, Oxford, 2005. [6] See V. Di Cataldo, Biotecnologie e diritto. Verso un nuovo diritto, e verso un nuovo diritto dei brevetti, in Studi di diritto industriale in onore di A. Vanzetti, 2004, 445; V. Falce, Profili pro-concorrenziali dell’istituto brevettuale, 2008, Chapter III. [7] See P. Frassi, Innovazione derivata, brevetto dipendente e licenza obbligatoria, in Riv. Dir. Ind., 2006. [8] P. Frassi, Creazioni utili e diritto d’autore. Programmi per elaboratore e raccolte di dati, 1997; A. Musso, Diritto di autore sulle opere dell’ingegno letterarie e artistiche, 2008 and M. Fabiani, Diritto d’autore: disciplina generale, Il diritto-Encicl. giur., 2007, vol. V. On the open source model see also G. Ghidini, V. Falce, Open source, General Public Licence e incentivo all’innovazione, in AIDA 2004, 3. [9] On anticommons, see R. Eisenberg, Proprietary rights and the Norms of Science in Biotechnollogy Research, Yale L.J., 1987, 177; M. Heller, Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, Science 1998, 698; M. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, Harv. L. Rev., 1998, 621; M. Heller, The Boundaries of Private Property, Yale L.J., 1999, 1163. Contra, J. P. Walsh, C. Cho, W. M. Cohen, View from the Bench: Patents and Material Transfers, Science, 2005, concluding that “little empirical basis for the claims that restricted access to IP is currently impeding biomedical research”; J. Walsh, A. Arora, W. Cohen, The Patenting and Licensing of Research Tools and Biomedical Innovation, in Patents in the Knowledge-based economy, Nat’l Academies Press 2003, 85-340. [10] See the classic R. H. Coase, The Problem of Social Cost, The Journal Of Law And Economics, 1960; R. Cooter e T. Ulen, Law & Economics, International Edition, 2004, 91. [11] C. Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools and Standard Setting, Innovation Policy and the Economy, Vol. I (Adam Jaffe et al., eds., 2001), available at  http://haas.berkeley.edu/~shapiro/thicket.pdf, 1. [12] On the issue, National Academies – Committee on Intellectual Property Rights in Genomic and Proteic Research and Innovation. Reaping the benefits of genomic and proteic research: intellectual property rights, innovation, and public health, 2005. [13] E. van Zimmeren, From One-Stop to One-Stop-Shop: Patent Pools and Clearinghouse Mechanisms as Pragmatic Solutions for Patent Thickets and Non-cooperative Patent Holders in Genetic Diagnostics?, IPSC 2006, Berkeley, 10-11 august 2006; G. Graff, D. Zilberman, Towards an Intellectual Property Clearinghouse for Agricultural Biotechnology. IP Strategy Today, 2001, 1. Possible solutions are identified by R. Dreyfuss, Commodifying Collaborative Research, Public Law and Legal Theory Working Paper Series Research Paper No. 42, 2002, accessibile all’indirizzo Internet: http://ssrn.com/abstract_id=315020. [14] Among the others, M. Heller, R. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, Science, 1998, 698; N. Depoorter, F. Parisi, B. Shulz, Fragmentation in Property: Towards a General Model, Journal of Institutional and Theoretical Economics, 2002, 594; M. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, Harvard Law Review, 1998, 621. At European level, see, European Commission, Analysis Report – Contributions of modern biotechnology to European policy objectives (DG JRC/IPTS) – Draft Final Version, 31 January 2007, available at http://bio4eu.jrc.es/documents.html where it is assessed that “the future development of patent thickets cannot be ignored. With regards to diagnostics this is a critical issue. For example, multiple patents might affect the development of microarray tests, where a specific combination of genes is used to diagnose (or predict) disease. In such a case and if each gene to be used on the array has already been patented, then multiple licenses would be required prior to the development of the test to ensure no infringement takes place. This would probably affect the cost of the test, and perhaps its accessibility to services and patients”. [15] See F. M. Scherer, The Economics of Human Gene Patents, in Academic Medicine, 2002, 1348. [16] See M. A. Heller, The Tragedy of the Anticommons: Property in Transition for Marx to Markets, Harv. L. Rev., 1998, 621; M. A. Heller, R. S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, Science, 1998, 698. For an empirical analysis, see J. P. Walsh et al., Effects of Research Tool Patents and Licensing on Biomedical Innovation, in Patents In The Knowledge-Based Economy 285- 340 (Wesley M. Cohen and Stephen A. Merrel eds., Washington, DC, The National Academies Press 2003). With reference to the risks connected to the patent ticket see I. R. Walpole et al., Human Gene Patents: the possible impacts on genetics services health care, Medical Journal Of Australia, 2003, 203; G. Matthijs, D. Halley, European-wide opposition against the breast cancer gene patents, European Journal Of Human Genetics, 2002, 783; J. F. Merz et al., Diagnostic testing fails the test, Nature, 2003, 577; M. K. Cho et al., Effects of Patents and Licenses on the Provision of Clinical Genetic Testing Services, Journal Of. Molecular Diagnostics, 2003, 3; J. Straus Et Al., Genetic Inventions And Patent Law, Max-Planck-Institüt für ausländisches und internationals Patent-, Urheber- und Wettbewerbsrecht & Bundesminsterium für Bilding und Forschung 6, 2002; OECD, Genetic Inventions, Intellectual Property Rights And Licensing Practices, Evidence And Policies, 2002, available at http://www.oecd.org/dataoecd/ 42/21/ 2491084.pdf.; OECD, Guidelines for the Licensing of Genetic Inventions C(2005)149/Rev1 (2006), available at http://www.oecd.org/ dataoecd/39/38/36198812.pdf; S. Nagaoka, Y. Nishimura, An empirical assessment of the effects of patent thickets, july 2006, available at www.sussex.ac.uk/Units/spru/events/ocs/viewpaper.php?id=32; M. Blakeney, Protection of Innovation and Transfer of IP Protected Technologies, Paper presented at ATRIP Annual Conference, Buenos Aires, 16-18 July 2007. [17] AA.VV., Gene Patents and Collaborative Licensing Models. About Patent Pools, Clearing Houses, Open Source Models and Liability Regimes in Human Genetics, Van Overwalle, G. Ed., 2009. On networks, see  J. Rochet, J. Tirole, Two-sided markets: A progress report, in RAND Journal of Economics, 2006; B. Caillaud, B. Jullien, Chicken & Egg: Competition Among Intermediation Service Providers, in RAND Journal of Economics, 2003, 309; B V. Quélin, Tamym Abdessemed, J-P. Bonardi, R. Durand, Standardisation of Network Technologies: Market Processes or the Result of Inter-firm Co-operation?, J. Econ. Survs., 2001, 543; D. W. Carlton, J. M. Klamer, The Need for Coordination Among Firms, with Special Reference to Network Industries, U. Chi. L. Rev., 1983, 446; M. L. Katz, C. Shapiro, Technology Adoption in the Presence of Network Externalities, J. Pol. Econ., 1986, 822; J. Farrell, G. Saloner, Installed Base and Compatibility: Innovation, Product Preannouncements, and Predation, Am. Econ. Rev., 1986, 940; J. Farrell, G. Saloner, Converters, Compatibility and the Control of Interfaces, J. Indus. Econ., 1992, 9; M. L. Katz, C. Shapiro, Product Introduction with Network Externalities, J. Indus. Econ., 1992, 55; J. Church, N. Gandal, Network Effects, Software Provision, and Standardization, J. Indus. Econ., 1992, 85; N. Economides, The Economics of Networks, Int’l J. Indus. Org., 1996, 673. [18] A critical position is held by C. Engel, Intellectual Property as a Carrot for Innovators: Using Game Theory to Show the Limits of the Argument, MPI Collective Goods Preprint No. 2007/4, available at http://ssrn.com/abstract=968941. [19] See P. Spada, La proprietà intellettuale delle reti telematiche, Riv.dir.civ., 1998, II,638; P. Auteri, Il paradigma tradizionale del diritto d’autore e le nuove tecnologie, in Proprietà digitale, 2006, 23. [20] J. I. Klein, An Address To The American Intellectual Property Law Association On The Subject Of Cross Licensing And Antitrust Law, available at http://www.usdoj.gov/atr/public/speeches/1123.htm (1997); Jeanne Clark Et Al., Patent Pools: A Solution To The Problem Of Access In Biotechnology Patents?, White Paper 4 (2000), available at http://www.uspto.gov/web/offices/pac/dapp/opla/patentpool.pdf; Robert P. Merges, Institutions for Intellectual Property Transactions: The Case of Patent Pools, in Expanding The Boundaries Of Intellectual Property, 123, 129 (Rochelle D. Cooper et al. eds., 2001), available at http://www.law.berkeley.edu/ institutes/bclt/pubs/merges. [21] Pools are identified as those forms of collaboration “integrating complementary technologies, reducing transaction costs, clearing blocking positions, and avoiding costly infringement litigation” (US guidelines on technoly transfer agreements, 6 april 1995, available at http://www.usDoJ.gov/atr/public/guidelines/ipguide.htm. On pools and information asymmetries, see G. Graff, D. Zilberman, Towards an Intellectual Property Clearinghouse for Agricultural Biotechnology. IP Strategy Today, 2001, 1. [22] For A. Krattiger, S. Kowalski, R. Eiss, A. Taubman, however the pool only rarely facilitate the technology transfer (ID., Intellectual Property Management Strategies to Accelerate the Development and Access of Vaccines and Diagnostics: Case Studies of Pandemic Influenza, Malaria, and SARS, Innovation Strategy Today, 2006). [23] H. Ullrich, Patent Pools: Approaching a Patent Law Problem Via Competition Policy, in Interaction Between Competition Law And Intellectual Property Law, 2007, 305, according to which  “the reason for their rinascimento are more complex: technology pool-building typically is a companion of the developmnet of new systems, which in turn are characteristic of the informatics revolution”; B. Verbeure, E. van Zimmeren, G. Matthijs, G. van Overwalle,  Patent Pools And Diagnostic Testing, 24 Trends in Biotechnology, vol. 3, March 2006, 115-120. On the efficiencies of pooling the resourses, J. Lerner, J. Tirole, Efficient Patent Pools, NBER Working Paper, 9175, 2002; nonché, più di recente A. D. Melamed, D. Lerch, Uncertain Patents, Antitrust, and Patent Pools, in The Interaction Between Competition Law And Intellectual Property Law, 2007, 277, according to which “patent pools can, in other words, promote the dissemination of technology both by lowering transaction costs associated with such dissemination and by lowering the prices for such technology”. See also under Italian law G. Colangelo, Mercato e cooperazione tecnologica, I contratti di patent pooling, 2008. [24] See OECD, Intellectual Property Management Strategies to Accelerate the Development and Access of Vaccines and Diagnostics: Case Studies on Pandemic Influenza, Malaria and SARS Meeting hosted by WIPO, , Geneva, Switzerland, April 2006. For an analysis of different approaches, M. Blakeney, Protection of Innovation and Transfer of IP Protected Technologies, Paper presented at the Annual ATRIP Conference, Buenos Aires, 16-18 July 2007. [25] See also G. Colangelo, Il trattamento antitrust degli accordi per il trasferimento di tecnologia nell’Unione Europea, in M. Granieri, G. Colangelo e F. De Michelis, Introduzione ai contratti per il trasferimento di tecnologia, Bari, 2009, 180. [26] J. M. Mueller, Patent Misuse Through the Capture of Industry Standards, Berkeley Tech. L.J., 2002, 623; M. L. Katz, C. Shapiro, Systems Competition and Network Effects, J. Econ. Persp., 1994, 93; C. Shapiro, H. R. Varian, The Art of Standards War, Cal. Mgmt. Rev., 1999, 8. On the competition law asects, see J. Church, R. Ware, Network Industries, Intellectual Property Rights and Competition Policy, In Competition Policy And Intellectual Property Rights in The Knowledge-based Economy 230-39 (Robert D. Anderson & Nancy T. Gallini eds., 1998); D. Balto, R. Pitofsky, Antitrust and High-Tech Industries: The New Challenge, Antitrust Bull., 1998, 583. [27] R. P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, Cal. L. Rev., 1996, 1293; J. Clark Et Al., Patent Pools: A Solution To The Problem Of Access In Biotechnology Patents?, White Paper, 2000, available at http://www.uspto.gov/web/offices/pac/ dapp/ opla/patentpool.pdf; R. P. Merges, Institutions for Intellectual Property Transactions: The Case of Patent Pools, in Expanding The Boundaries Of Intellectual Property, 123, 129 (Rochelle D. Cooper et al. eds., 2001), available at http://www.law.berkeley.edu/institutes/bclt/pubs/merges. [28] R. Aoki, Intellectual property and consortium standard patent pools, Journal of Intellectual Property Rights, 2005, 206; R. Aoki, S. Nagaoka, Coalition formation for a consortium standard through a standard body and a patent pool: Theory and evidence from MPEG2, DVD and 3G, Institute of Innovation Research, Hitotsubashi University, IIR Working Paper WP#05. [29] F.Grassler, M. A. Capria, Patent Pooling: Uncorking A Technology Transfer Bottleneck And Creating Value In The Biomedical Research Field, Journal of Commercial Biotechnology, 2003, 111. [30] A. Krattiger, S. Kowalski, R. Eiss, A. Taubman, Intellectual Property Management Strategies to Accelerate the Development and Access of Vaccines and Diagnostics: Case Studies of Pandemic Influenza, Malaria, and SARS, Innovation Strategy Today, 2006; B. Klein, R. G. Crawford, A. A. Alchian, Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, J.L. & Econ., 1978, 297; O. E. Williamson, The Economic Institutions Of Capitalism: Firms, Markets, Relational Contracting, 1985; S. J. Grossman, O. D. Hart, The Costs and Benefits of Ownership: A Theory of Vertical and Lateral Integration, J. Pol. Econ., 1968, 691; S. E. Majewski, D V. Williamson, Incomplete Contracting and the Structure of R&D Joint Venture Contracts, in Advances In The Study Of Entepreneurship, Innovation, And Economic Growth: Intellectual Property And Entrepreneurship (Gary D. Libecap ed., 2004). [31] On standadisation and best practice, G. Van Overwalle et al., Models For Facilitating Access To Patents On Genetic Inventions, in Nat. Rev. Genet., 2006, 143; B. Verbeure et al., Patent Pools And Diagnostic Testing, in Trends Biotechnol., 2006, 115; J. A. Goldstein et al., Patent Pools As A Solution To The Licensing Problems Of Diagnostic Genetics, United States And European Perspectives, in Drug Discovery World, 2006, 86; T. J. Ebersole et al., Patent Pools And Standard Setting In Diagnostic Genetics, in Nat. Biotechnol., 2005, 937. [32] OECD, Genetic Inventions, Intellectual Property Rights And Licensing Practices, Evidence And Policies, 2002, available at http://www.oecd.org/dataoecd/ 42/21/2491084.pdf; Australian Law Reform Commission, Genes And Ingenuity: Gene Patenting And Human Health, (Final Report, 2004), available at http://www.alrc.gov.au. [33] Emblematico in proposito è il caso Rambus, Inc., v. Infineon Techs. AG, 318 F.3d 1081 (Fed. Cir. 2003), in cui, in appello, la Corte accogliendo i rilievi di Rambus ha ritenuto che “Rambus’s duty to disclose extended only to claims in patents or applications that reasonably might be necessary to practice the standard”. Soccorre peraltro la Federal Trade Commission che riscontrata, in un’ampia opinione, i presupposti di un illecito concorrenziale, sub specie “monopolization”, impone una licenza obbligatoria (In re Rambus, Inc., No. 9302, Opinion del 2 agosto 2006; Federal Trade Commission , comunicato stampa FTC Issues Final Opinion and Order in Rambus Matter (5 febbraio 2007), http://www.ftc.gov/opa/2007/02/070502rambus.htm. In dottrina, M. A. Lemley, Ten Things to Do About Patent Holdup of Standards (and One Not to), in B.C. L. REV., 2007, 149, che chiarisce come l’uso strategico del brevetto possa tradursi nella richiesta di “sums of money that are far out of proportion to the actual inventive contribution that they have made”. [34] E. van Zimmeren, From One-Stop to One-Stop-Shop: Patent Pools and Clearinghouse Mechanisms as Pragmatic Solutions for Patent Thickets and Non-cooperative Patent Holders in Genetic Diagnostics?, IPSC 2006, Berkeley, 10 and 11 august 2006; A. Krattiger, S. Kowalski, R. Eiss, A. Taubman, Intellectual Property Management Strategies to Accelerate the Development and Access of Vaccines and Diagnostics: Case Studies of Pandemic Influenza, Malaria, and SARS, Innovation Strategy Today, 2006; P. Gaulé, Towards Patent Pools in Biotechnology?, Meeting Report (WIPO, Geneva, april 2006), in Innovation Strategy Today, 2006. On the underlying incentives, R. Dreyfuss, Unique Works/Unique Challenges at the Intellectual Property/Competition Law Interface, in The Interaction Between Competition Law And Intellectual Property Law, 2007, 129. [35] On the instability of a pool see R. Aoki, Intellectual Property And Consortium Standard Patent Pools, in Journal of Intellectual Property Rights, 2005, 206. [36] According to H. Ullrich “the framework for the assessment of technology pools overstretches the legitimate objectives and the proper use of competition law and policy” (ID., Patent Pools: Approaching a Patent Law Problem Via Competition Policy, in The Interaction between Competition Law and Intellectual Property Law, 2007, 320). [37] On the competition perspective , L. Kjoelbye, L. Peeperkorn, The New technology Transfer Block Exemption Regulation and Guidelines, in R The Interaction Between Competition Law And Intellectual Property Law, 2007, 161. According to G. Amato “on the one side, patent pools are essential to innovation, and on the other side, they may hide collusive behaviour (ID., Commento, in The Interaction Between Competition Law And Intellectual Property Law, 2007, 239); T. J. Ebersole et al., Patent Pools As A Solution To The Licensing Problems Of Diagnostic Genetics, in Int’ll Prop. & Techn. L. J. 1, 2005, 4; P. Strickland, Patent Pools and Cross Licences are Under Review, in News Exchange, 2003; S. Carlson, Patent Pools and the Antitrust Dilemma, in Yale Journal of Regulation, 1999, 393; M. Schallop, The IPR Paradox: Leveraging Intellectual Property Rights to Encourage Interoperability in the Network Computing Age, in AIPLA Quarterly Journal, 1999, 226; H. Ullrich, The Interaction Between Competition Law And Intellectual Property Law: An Overview, 2007; U.S. Department Of Justice and Federal Trade Commission, Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation And Competition, 2007, available at www.ftc.gov/reports/index.shtm). [38] For a comparative analysis, see R. Aoki, A. Schiff, Intellectual Property Access Systems, Discussion Paper Series A No.491, 2007. [39] HUGO, Statement On The Scope Of Gene Patents, Research Exemption And Licensing Of Patented Gene Sequences For Diagnostics, 2003, available at http://www.hugointernational.org/PDFs/Statement%20on%20the%20Scope%20of%20Gene%20Patents,%20Research%20Exemption.pdf; Nuffield Coun-cil On Bioethics, The Ethics Of Patenting Dna, Discussion Paper. No. 93, 2002, available at http://www.nuffieldbioethics.org. [40] On possible solutions, E. van Zimmeren et al., A Clearinghouse For Diagnostic Testing: The Solution To Ensure Access To And Use Of Patented Genetic Inventions?, Bulletin Of The World Health Organization, 2006, 352. [41] A. F. Krattiger, Financing the Bioindustry and Facilitating Biotechnology Transfer, IP Strategy Today, 2004, 1. [42] E. R. Gold, Biotechnology Patents: Strategies For Meeting Economic And Ethical Concerns, 30 Nature Genetics 359; Australian Law Reform Commission (Alrc), Gene Patenting And Human Health, para. 23.53 (Discussion Paper No. 68, 2004), available at http://www.alrc.gov.au. On antitrust implications, H. Ullrich, The Interaction Between Competition Law And Intellectual Property Law: An Overview, 2007; E. Mestmacher, Collecting Societies, in The Interaction between Competition Law and Intellectual Property Law, 2007, 343; F. Jenny, EC Competition Law Enforcement and Collecting Societies for Music Rights: What Are We Aiming For?, Ibidem, 361. [43] On practical implications, see  http://www.gbif.org/.;  http://www.biodiv.org/chm/.; http://www.ep.espacenet.com.; http://www.dephion.com.; http://www.stn-international.de.; http://dialog.com.; http://www.micropatent.com/ static/index.htm.; http://www.bios.net/daisy/bios/patentlens.html.; http://www.bios.net. [44] See A. L. Holden, The SNP Consortium: Summary of a Private Consortium Effort to Develop an Applied Map of the Human Genome, Biotechniques, 2002, 22; J. G. Stewart, Pre-Competitive Collaborations In Genomics: Snp Consortium And Hapmap Project, Workshop On Collaborative Mechanisms: Ensuring Access Organized By The Biotechnology Division Of Organization For Economic Co-Operation And Development (Washington D.C – 8 and 9 december 2005). On the intersection witg database protection, V. Falce, Il rapporto tra ricerca di base e ricerca applicata alla luce del completamento della mappa genetica umana, Working Papers, LUISS, 2001, available at  www.archivioceradi.it. [45] On the issue, E. van Zimmeren, From One-Stop to One-Stop-Shop: Patent Pools and Clearinghouse Mechanisms as Pragmatic Solutions for Patent Thickets and Non-cooperative Patent Holders in Genetic Diagnostics?, IPSC 2006, Berkeley, 10 and 11 august 200. On  “FRAND licences (fair, reasonable and non discriminatory) terms”, see AA.VV., Gene Patents and Collaborative Licensing Models. Patent Pools, Clearinghouses, Open Source Models and Liability Regimes, G. Van Overwalle eds.,, Cambridge University Press, 2009. [46] Dusollier, Open source and Copyright: Authorship Reconsidered?, Colum J L & Arts, 2003, 281; Nadan, Open source Licensing: Virus or Virtue?, Tex Intel Prop L J, 2002, 249; N. Elkin-Koren, Exploring Creative Commons: A Skeptical View Of A Worthy Pursuit The Future Of The Public Domain (P. Bernt Hugenholtz & Lucie Guibault, eds.) 2006 (available at http://www.antitrustisti.net); J. Hope, Open Source Biotechnology, 2004, available at rsss.anu.edu.au/~ janeth/Open SourceBiotechnology27July2005.pdf. [47] Risks arising from standardising licences see R. Aoki, A. Schiff, Intellectual Property Access Systems, Discussion Paper Series A No.491, 2007. [48] For an interesting proposal, P. Drahos, Indigenous Knowledge, Intellectual Property and Biopiracy: Is a Global Bio-Collecting Society the Answer?, Eur. Int’lll Prop. Rev., 2000, 245. [49] See S. Kaplan, M. Sawhney, E-Hubs: the New B2B Marketplaces: Toward a Taxonomy of Business Models, Harvard Business Review, 2000. [50] On the relevan antitrust risks, R. Aoki, A. Schiff, Intellectual Property Access Systems, Discussion Paper Series A No. 491, 2007. [51] E.Van Zimmeren, B. Verbeure, G. Matthijs, G. Van Overwalle, A Clearinghouse for Diagnostic Testing: the Solution to Ensure Access to and Use of Patented Genetic Inventions?, Bulletin of the World Health Organization, 2006, 352. [52] G. Vanoverwalle, E. Van Zimmeren, B. Verbeure, G. Matthijs, Models for facilitating access to patents on genetic inventions, in Nature Review Genetics, February 2006, 143-148 [53] See also OECD, Guidelines For  The Licensing  Of Genetic Inventions, 2006. According to R. Dreyfuss “In biotechnology development, for example, work is taken out-of-house and done through temporary alliances precisely because the particular set of expertise required for one project will not be needed again” (ID. R. Dreyfuss, Commodifying Collaborative Research, Public Law and Legal Theory Working Paper Series Research Paper No. 42, 2002, available at: http://ssrn.com/abstract_id=315020); W. W. Powell, Inter-Organizational Collaboration in the Biotechnology Industryin J. Instit’l and Theoretical Ec. 1996, 205. [54] On the relation between property and liability rules, see G. Calabresi e A.D. Melamed, Property rules, liability rules and inalienability: one view of the cathedral, in Harv.Law Review, 1972, 1089; M. Ricolfi, Le misure compulsorie, in L. Nivarra eds., L’enforcement dei diritti di proprietà intellettuale, 2005, 91; P. Auteri, Le tutele reali, ivi, 3; ID. Il paradigma tradizionale del diritto d’autore e le nuove tecnologie, in Proprietà digitale, 2006, 26; G. Colangelo, Mercato e cooperazione tecnologica, cit., 2008, 35 ss. [55] According to R. Dreyfuss “In biotechnology development, for example, work is taken out-of-house and done through temporary alliances precisely because the particular set of expertise required for one project will not be needed again” (R. Dreyfuss, Commodifying Collaborative Research, Public Law and Legal Theory Working Paper Series Research Paper No. 42, 2002, available att: http://ssrn.com/abstract_id=315020); W. W. Powell, Inter-Organizational Collaboration in the Biotechnology Industry, in J. Instit’l and Theoretical Ec. 1996, 205. [56] See E. Zika, I. Papatryfon, O. Wolf, M. Gómez-Barbero, A. J. Stein, A-K. Bock, Consequences, Opportunities and Challenges of Modern Biotechnology for Europe, 2007 (available at http://bio4eu.jrc.es/documents.html); A. Nunnally et al., Genetic patent protection in the pharmaceutical and biotechnology industries, in Community Genetics, 2005, 8, 209-216. [57] See on the relevant issues, AIPPI, Resolution Question Q194BA, The impact of co-ownership of Intellectual Property Rights on their exploitation, ExCo Buenos Aires 2009, 14 october 2009. [58] On the issue, see G. Cavani, Le intersezioni con il diritto della concorrenza, in Scenari e prospettive del diritto d’autore, Gambino-Falce eds., 2009, 39; P.Frassi, Le evoluzioni normative a livello nazionale: l’oggetto della protezione, in Scenari e prospettive del diritto d’autore, Gambino-Falce eds., 2009, 73. [59] On the limits of a system based on compulsory licences see P. Cullet, Patents And Medicines: The Relationship Between TRIPS And The Human Right To Health, in International Affairs, 2003, 139. [60] Iter alia, J. Lipton, Information Property: Rights and responsabilities, Fla. L. Rev., 2004, 135. [61] G. Van Overwalle, Collaborative efforts in patent law, Paper presented at the ATRIP Annual Congress, 23-26 May 2010 Stocolm where the author concludes that “Rather than fixating too one-sidedly on the question of which precise institutional structure shall be implemented (a patent pool or a clearing house), priority should be given to the question of which ultimate objective the collaborative mechanism wishes to serve, a market failure or a developmental/societal problem”. On the issue, see, ID., ‘Designing Models to Clear Patent Thickets in Genetics’, in Working within the Boundaries of Intellectual Property, R. Dreyfuss, H. First, D. Zimmerman eds., Oxford, Oxford University Press, 2010, 305-324.