271 research outputs found

    Mitigating "Anticommons" Harms to Science and Technology Research

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    There are three analytically distinct layers of the phenomenon that has been labeled “the anticommons” and indicted as a potential impediment to innovation resulting from patenting and enforcement of IPR obtained on academic research results. This paper distinguishes among “search costs”, “transactions costs”, and “multiple marginalization” effects in the pricing of licenses for commercial use of IP, and examines the distinctive resource allocation problems arising from each when exclusion rights over research inputs are distributed among independent owners. Where information use-rights are gross complements (either in production or consumption), multiple marginalization—seen here to be the core of the “anticommons” – is likely to result in extreme forms of “royalty stacking” that can pose serious impediments to R&D projects. The practical consequences, particularly for exploratory scientific research (contrasted with commercially-oriented R&D) are seen from a heuristic analysis of the effects of distributed ownership of scientific and technical database rights. A case is presented for the contractual construction of “research resource commons” designed as efficient IPR pools, as the preferable response to the anticommons.law and economics, IPR, licensing, anticommons, patent hold-ups, royalty stacking, database rights, contractual commons, efficient pools

    The Question of Spectrum: Technology, Management, and Regime Change

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    There is general agreement that the traditional command-and-control regulation of radio spectrum by the FCC (and NTIA) has failed. There is no general agreement on which regime should succeed it. Property rights advocates take Ronald Coase's advice that spectrum licenses should be sold off and traded in secondary markets, like any other assets. Commons advocates argue that new technologies cannot be accommodated by a licensing regime (either traditional or property rights) and that a commons regime leads to the most efficient means to deliver useful spectrum to the American public. This article reviews the scholarly history of this controversy, outlines the revolution of FCC thinking, and parses the question of property rights vs. commons into four distinct parts: new technology, spectrum uses, spectrum management, and the overarching legal regime. Advocates on both sides find much to agree about on the first three factors; the disagreement is focused on the choice of overarching regime to most efficiently and effectively make spectrum and its applications available to the American public. There are two feasible regime choices: a property rights regime and a mixed licensed/commons regime subject to regulation. The regime choice depends upon four factors: dispute resolution, transactions costs, tragedies of the commons and anticommons, and flexibility to changing technologies and demands. Each regime is described and analyzed against these four factors. With regard to pure transactions costs, commons may hold an advantage but it appears quite small. For all other factors, the property rights regime holds very substantial advantages relative to the mixed regime. I conclude that the choice comes down to markets vs. regulation as mechanism for allocating resources.

    Intellectual Property, Open Science and Research Biobanks

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    In biomedical research and translational medicine, the ancient war between exclusivity (private control over information) and access to information is proposing again on a new battlefield: research biobanks. The latter are becoming increasingly important (one of the ten ideas changing the world, according to Time magazine) since they allow to collect, store and distribute in a secure and professional way a critical mass of human biological samples for research purposes. Tissues and related data are fundamental for the development of the biomedical research and the emerging field of translational medicine: they represent the “raw material” for every kind of biomedical study. For this reason, it is crucial to understand the boundaries of Intellectual Property (IP) in this prickly context. In fact, both data sharing and collaborative research have become an imperative in contemporary open science, whose development depends inextricably on: the opportunities to access and use data, the possibility of sharing practices between communities, the cross-checking of information and results and, chiefly, interactions with experts in different fields of knowledge. Data sharing allows both to spread the costs of analytical results that researchers cannot achieve working individually and, if properly managed, to avoid the duplication of research. These advantages are crucial: access to a common pool of pre-competitive data and the possibility to endorse follow-on research projects are fundamental for the progress of biomedicine. This is why the "open movement" is also spreading in the biobank's field. After an overview of the complex interactions among the different stakeholders involved in the process of information and data production, as well as of the main obstacles to the promotion of data sharing (i.e., the appropriability of biological samples and information, the privacy of participants, the lack of interoperability), we will firstly clarify some blurring in language, in particular concerning concepts often mixed up, such as “open source” and “open access”. The aim is to understand whether and to what extent we can apply these concepts to the biomedical field. Afterwards, adopting a comparative perspective, we will analyze the main features of the open models – in particular, the Open Research Data model – which have been proposed in literature for the promotion of data sharing in the field of research biobanks. After such an analysis, we will suggest some recommendations in order to rebalance the clash between exclusivity - the paradigm characterizing the evolution of intellectual property over the last three centuries - and the actual needs for access to knowledge. We argue that the key factor in this balance may come from the right interaction between IP, social norms and contracts. In particular, we need to combine the incentives and the reward mechanisms characterizing scientific communities with data sharing imperative

    Virtual Property

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    This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - that is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act to limit the costs of this internet anticommons

    Data Types, Data Doubts & Data Trusts

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    Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships for their fruition. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’s status as property— demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to data governance. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies

    An Examination of Patents, Licensing, Research Tools, and the Tragedy of the Anticommons in Biotechnology Innovation

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    The continued development of and affordable access to potentially life saving pharmaceuticals, gene therapies and diagnostics is unquestionably a socially important issue. However, crafting government policy to encourage the development of and allowing affordable access to those services and products is difficult. On one hand, the development of those services and products requires a large investment of funds because of the complexity, collaborative nature, and uncertainty of the development of those products and services. Accordingly, investors require the safety of strong and stable patent rights to ensure a return on their investment in the development of a commercial end-product or a research tool. On the other hand, patents may foreclose competition for a particular product or service and enable a company to exact a supra competitive price for that product or service, thus denying access to people unable to afford that product or service. In arriving at that supra competitive price, the company selling the commercial end product may have to include in that price a number of additional costs imposed by holders of patented research tools needed in the development of the commercial end-product. This Article examines whether the development of pharmaceuticals, gene therapies or diagnostics is being stifled by the inability of companies to access proprietary research tools needed for the development of those important products and services. This Article also evaluates proposals for alleviating problems in accessing proprietary research tools, and proposes recommendations to aid in the efficient transfer of that technology. First, this Article recommends that Congress enact a law similar to the proposed Genomic Science and Technology Innovation of Act of 2002, which requires the government to conduct a study of the effect of government policy on biotechnology innovation. Second, this Article recommends that the government encourage public and private parties to enter patent pools to efficiently transfer rights in biotechnology inventions. The government, in conjunction with private and public institutions, should create a publicly available database of proprietary research tools and licenses concerning those tools. The government should also modify the provision of the Bayh-Dole Act concerning reservation of a nonexclusive right to practice any patented invention created with federal funding. The modification would allow the government to transfer a non-exclusive license to a patented research tool developed with government funding to a patent pool created by industry participants if it is demonstrated that the owner of the patented research tool is unreasonably withholding the license of that tool from the pool. Any royalties resulting from the licensing of the research tool in the patent pool will be distributed to the owner of the patented research tool. Part I of this Article provides definitions for research tools and commercial applications. Part II discusses the costs, benefits, and purposes of patent law. Part III reviews university and private research and development, including the influence of the Bayh-Dole Act. Part IV examines the development of commercial applications of biotechnology research, including the role of venture capital and the use of licensing provisions requiring reach through royalties and exclusivity. Part V evaluates problems that may occur in attempting to develop commercial applications and licensing patents. Part VI reviews the Tragedy of the Anticommons theory. Part VII discusses research and analysis concerning the existence of the anticommons problem. Part VIII examines and analyzes potential solutions for solving the Tragedy of the Anticommons in biotechnology. Finally, Part IX offers recommendations for addressing an existing or developing Tragedy of the Anticommons

    Governing the Commons for two decades: A complex story

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    Game Theory Meets Network Security: A Tutorial at ACM CCS

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    The increasingly pervasive connectivity of today's information systems brings up new challenges to security. Traditional security has accomplished a long way toward protecting well-defined goals such as confidentiality, integrity, availability, and authenticity. However, with the growing sophistication of the attacks and the complexity of the system, the protection using traditional methods could be cost-prohibitive. A new perspective and a new theoretical foundation are needed to understand security from a strategic and decision-making perspective. Game theory provides a natural framework to capture the adversarial and defensive interactions between an attacker and a defender. It provides a quantitative assessment of security, prediction of security outcomes, and a mechanism design tool that can enable security-by-design and reverse the attacker's advantage. This tutorial provides an overview of diverse methodologies from game theory that includes games of incomplete information, dynamic games, mechanism design theory to offer a modern theoretic underpinning of a science of cybersecurity. The tutorial will also discuss open problems and research challenges that the CCS community can address and contribute with an objective to build a multidisciplinary bridge between cybersecurity, economics, game and decision theory

    Open source biotechnology

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