A Numerus Clausus Principle for Intellectual Property

Mulligan, Christina

doi:10.2139/ssrn.2017023

Cited by 12 publications

(9 citation statements)

References 15 publications

(1 reference statement)

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“…First, our findings confirm the proposition of Mulligan (2013Mulligan ( , 2016) that exhaustion may reduce rent dissipation when the transaction costs of licensing are high. Specifically, absolute exhaustion prevents the patentee from "burning up" large amounts of surplus via downstream licensing transaction costs, which occurs when the patent holder can require direct licenses from downstream consumers.…”

Section: Resultssupporting

confidence: 85%

An Economic Model of Patent Exhaustion

2017

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Standard-Nutzungsbedingungen:Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden.Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen.Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, gelten abweichend von diesen Nutzungsbedingungen die in der dort genannten Lizenz gewährten Nutzungsrechte. Terms of use: Documents in An Economic Model of Patent Exhaustion AbstractThe doctrine of "patent exhaustion" implies that the authorized sale of patented goods "exhausts" the patent rights in the goods sold and precludes additional license fees from downstream buyers. This paper offers the first formal economic model of domestic patent exhaustion that incorporates transaction costs in consumer licensing, and examines how a shift in patent policy from absolute to presumptive exhaustion, in which the patent owner can opt-out of exhaustion via contract, affects social welfare. The results show that when transaction costs are low, presumptive exhaustion is socially optimal, because it allows welfare-enhancing price discrimination via downstream licensing. Conversely, when transaction costs are high, the regime of presumptive patent exhaustion leads to a greater loss of static efficiency, because transaction cost frictions offset the benefits of price discrimination, but dynamic benefits in promoting ex ante investment in product quality may outweigh any static inefficiencies. JEL-Codes: F100, O310.

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Section: Resultssupporting

confidence: 85%

An Economic Model of Patent Exhaustion

2017

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“…Our findings confirm and expand upon qualitative results in the literature. First, we confirm the proposition in Mulligan (2013, 2016) that absolute exhaustion may reduce rent dissipation when the transaction cost of licensing is high, because it prevents the patentee from “burning up” large amounts of surplus via transaction costs in individualized licensing. We also show that absolute exhaustion can reduce product prices for buyers with high willingness to pay (Katz, 2016).…”

Section: Resultssupporting

confidence: 78%

“…Although the previous literature recognized that absolute exhaustion and presumptive exhaustion are equivalent when transaction costs are so prohibitive that there is no incentive for the patent owner to engage in downstream licensing, it did not describe the shift from prohibitive to intermediate to low levels of transaction costs (e.g., Layne-Farrar et al, 2014). Rather, some scholars focused on how exhaustion solves the problem of rent dissipation burning up transaction costs (e.g., Mulligan, 2013), while others criticized exhaustion for preventing socially beneficial price discrimination (e.g., Kieff, 2018). No previous scholar has provided the means of determining, as our model does, when one of these competing interests dominates the other.…”

Section: Introductionmentioning

confidence: 99%

An economic model of patent exhaustion

Ivus

Lai

Sichelman

2020

Economics Manag Strategy

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The doctrine of patent exhaustion implies that the authorized sale of patented goods "exhausts" the patent rights in the goods sold and precludes additional license fees from downstream buyers. Courts have considered absolute exhaustion, in which the patent owner forfeits all rights upon an authorized sale, and presumptive exhaustion, in which the patent owner may opt-out of exhaustion via contract. This paper offers the first economic model of domestic patent exhaustion that incorporates transaction costs in licensing downstream buyers and considers how the shift from absolute to presumptive exhaustion affects social welfare. We show that when transaction costs are high, the patent owner has no incentive to individually license downstream users, and absolute and presumptive exhaustion regimes are equivalent. But when transaction costs are at the intermediate level, the patent owner engages in mixed licensing, individually licensing high-valuation buyers and uniformly licensing low-valuation buyers. Presumptive exhaustion is socially optimal when social benefits from buyer-specific pricing outweigh social costs from transaction cost frictions in individualized licensing, which requires sufficiently low transaction costs.

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“…36). Mulligan (2017) believes that limitations to IP rights are required to untangle the competing interests of digital media, such as in the case of a rightsholder nonexclusively licensing the creation of a derivative work (such as a translation) and maintaining whole or partial ownership of both the original and the derivative work. She suggests that the interest (and potential veto) of the original rightsholder should be exhausted once the derivative work has been published, as currently such works are potentially subject to claims from multiple owners and 'are particularly vulnerable to anticommons problems' (ibid.…”

Section: Emerging Issuesmentioning

confidence: 99%

Copyright and the re-use of translation as data

Moorkens¹,

Lewis²

2019

The Routledge Handbook of Translation and Technology

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Translation copyright was first codified as a derivative work in the Berne Convention of 1886, subject to the rights of the creator of the original work. While most countries are now contracting parties to the Berne Convention, differing interpretations and additional laws and directives mean that rights to ownership of a translation are not consistent in all jurisdictions. The original intention of the Berne Convention was to protect authors' rights and to prevent piracy, and the authors could not have foreseen the large scale reuse of translations, initially via translation memory tools, then as training data for machine translation (MT) systems. Parallel data is repurposed in ever-increasing amounts, but broken down to word and subword levels. At present, rights to ownership are rarely passed to the translator, meaning that, while an initial translation may be costly, secondary uses are very inexpensive. This chapter explores the history of translation copyright and leveraging, and introduces concerns relating to machine learning more generally and applies them to translation.

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A Numerus Clausus Principle for Intellectual Property

Abstract: TENNESSEE LAW REVIEW owners, licensees, and the general public by lowering transaction costs and preventing accidental overuse and underuse of intellectual works.

Cited by 12 publications

References 15 publications

An Economic Model of Patent Exhaustion

An Economic Model of Patent Exhaustion

An economic model of patent exhaustion

Copyright and the re-use of translation as data

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