Law in Contemporary Society

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JustinColannino-FirstPaper 15 - 24 Mar 2008 - Main.EbenMoglen
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Forced pooling as a solution to the tragedy of the anticommmons in patent law

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The anticommons and its tragedy

An anticommons occurs when multiple owners each have a right to exclude others from a scarce resource and no one has an effective privilege of use. The “tragedy of the anticommons”, coined by Michael Heller, is when the right to exclude is exercised by some of the right holders, with the result that the resource becomes under-utilized. Heller has discussed its occurrence in post soviet regimes [4] and in biomedical research with Rebecca S. Eisenberg [5]. In the particular case of patents the under-utilization is the suppression of innovation due to the cost of using upstream resources. This problem becomes magnified because the rights holders have monopolies on the resource - the innovator cannot find an alternate supply of the resources they need.
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  • What's the point of footnotes in a wiki? Just use links.

 Heller and Eisenberg establish three main hurdles that must be overcome to prevent tragedy in the Biomedical anticommons, which can be extended to patents in general. These are the high transaction costs of bundling rights, conflicting goals of rights holders and rights holders overvaluing of their piece of the resource.

While some view this situation as one with a free market solution [6], others think that this is a pitfall in the current system and thus an area ripe for government intervention [7]. Proposed solutions range from supplanting the right to exclude with liability rules [1] to giving free compulsory licenses for experimental use [8].

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 [9] Kelo v. City of New London, 545 U.S. 469 (2005).
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  • March-in rights already exist. They are unused for the same reason that a right to create compulsory pools would be unused: there is no uncaptured regulator with an incentive to employ the available instruments. You might as well begin facing the problem as it will face you for the rest of your lifetime: the patent system has ceased to produce positive outcomes and is now a source of serious potential evils. Its abolition is not only desirable but necessary. Discussion of the kind you offer here is too radical to be adopted and to impotent to do any good. Existing scholarship is full of shit, and venality is widespread, because doctors are not the only professionals easily corrupted by an extremely wealthy industry that has no respect whatever for the rule of law. You can decide to be on the side of the pharmaceutical manufacturers, with their plan to create lifetime-long monopolies in custom molecules that sustain individual existence (thus making one person's life the permanent legal property of someone else), or you can be in favor of abolition. All intermediate positions are actually just support for the bad guys. Which side are you on?

 
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Revision 15r15 - 24 Mar 2008 - 13:42:12 - EbenMoglen
Revision 14r14 - 18 Mar 2008 - 21:23:15 - IanSullivan
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