1. PLANTEAMIENTO DEL PROBLEMA
2.3. ANTECEDENTES (ESTADO DEL ARTE)
2.3.1. Educación superior en Colombia
That major patent law jurisdictions, as signatories to the TRIPS Agreement, treat patents as a form of proprietary entitlement, makes it necessary to examine concerns relating to access to patented technologies by third party users. Gans, Williams and Briggs postulate three vital features of property rights: a legal regime that enables the identity of the right owner to be ascertainable (i.e. establishment); a body of rules that enables the right(s) to be legally enforceable (i.e. enforcement); and a means by which interested third parties can contract or transact with a right owner to gain approval to use the right (i.e. exchange).55 It is
this third element that is germane here because it specifically relates to the patent market.
The possibility of patent holders assigning (disposing of ownership by sale) or licensing (allowing use without transferring ownership) patents gradually leads to the emergence of patent markets.56 A market has been defined as ‘an
arrangement by which buyers and sellers of a commodity or commodities interact to determine its price and the quantity of the subject matter of exchange’.57 A
‘patent market’ is accordingly an avenue whereby patent holders and intending users of patented technology seek each other out over access to patents.58
The general economic concept of a market is therefore not circumscribed to a physical space where goods and services are exchanged. It extends to all cases of, and avenues for, repetitive exchanges in return for value or consideration. It is
55 Joshua Gans, Phillip Williams and David Briggs, ‘Intellectual Property Rights: A Grant of
Monopoly or an Aid to Competition?’ (2004) 37 Australian Economic Review, 436, 437-438.
56 See Tomoya Yanagisawa and Dominique Guellec, ‘The Emerging Patent Marketplace’ (2009),
OECD Science, Technology and Industry Working Papers, 2009/09, OECD Publishing, available at:
http://dx.doi.org/10.1787/218413152254 (last viewed on 27/03/2016).
57 Paul Samuelson and William Nordhaus, Economics (McGraw Hill, 3rd Australian Edition) 49. 58 Adam Mossoff, ‘Commercializing Property Rights in Invention: Lessons for Modern Theory
From Classic Patent Doctrine’ George Mason Law & Economics Research Paper No. 11-27. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865951 (last viewed on 27/03/2016).
important to note that the patent market can have two phases— ex-ante and ex- post — as informed by the conditions of that shape negotiation. The ex-ante patent market is one whereby transactions occur before infringement. 59 Where,
conversely, transactions occur after infringement or in the shadow of possible infringement litigation, such a phase is described as the ex-post patent market.60
In this chapter the descriptor ‘patent market’ is used to refer only to the ex-ante
phase. This is because in general parlance a market is where economic entities meet, without the inducement of litigation, to transact.
Gordon’s 1899 work on the origins of compulsory licensing in Great Britain reveals a longstanding recognition of one of the major problems associated with exchanges of patented technologies: the reluctance of patent holders to license out to manufacturers.61 In contrast, investigations by Lamoreaux et al. into the origins
of the patent market in the USA show that the bulk of patent holders in that jurisdiction in the 19th century (who were predominantly non-manufacturers)
found it difficult to attract assignees and find licensees.62 They conclude that
information on willing assignees and licensees and on the quality of the utility possessed by patented technology, were always in deficit. This resulted in the need for intermediaries who could bridge the gap between patentees and interested parties. The need to salvage this situation engendered the birth of the market for patents and concomitantly resulted in the creation of a novel specialisation for lawyers concerned with the commercialisation of patents.63
Lamoreaux et al. also recount how the patent market was characterised by
59 See Alan Devlin, ‘Improving Patent Notice and Remedies: A Critique of the FTC’s 2011 Report’
(2012) 18 Michigan Telecommunications Technology Law Review 539.
60 Ibid.
61 See William Gordon, Compulsory Licences Under the Patents Acts (Law Publishers, 1899). 62 Naomi Lamoreaux, Kenneth Sokoloff and Dhanoos Sutthiphisal, ‘Patent Alchemy: The Market
for Technology in US History’ (2013) 87 Business History Review 3; see also Ramon Klitzke, ‘Historical Background of the English Patent Law’ (1959) 41 Journal of the Patent Office Society
615.
63Ibid; see also Naomi Lamoreaux and Kenneth Sokoloff, ‘Inventors, Firms, and the Market for
Technology in the Late Nineteenth and Early Twentieth Centuries’ in Naomi Lamoreaux, Daniel Raff and Peter Temin, Learning by Doing in Markets, Firms, and Countries (University of Chicago Press, 1999) available at http://www.nber.org/chapters/c10229.pdf (last accessed on
difficulties, such that a majority of patents were not licensed or commercialised at all.64
In modern times, where there is a glut of patents,65 it is feared that difficulties in
securing access to them might be exacerbated. Based on a study of prevailing events in the USA, Eisenberg opines there is widespread infringement of patents, lower rates of successfully concluded licensing contracts and a soaring increase in (threats of) litigation on patents.66 Lemley and Myhrvold describe the patent
market as ‘blind’.67 They argue that an inability to agree over the value of patents,
and thus agree on a fair royalty rate, has resulted in patent holders being unable to find would-be users. This, they reason, has left a great number of patents unlicensed and un-commercialised.68 Beside the difficulty in placing a mutually
agreeable value on patents, Lemley and Myhrvold assert that ‘blind’ market situations may also be attributable to other bargaining and negotiation difficulties that thwart the efficiency of the patent market.69
If patents in any given class are unlicensed and their underlying technologies left unexploited, this may suggest that there is no demand for them. But this cannot be fairly ascribed to an inefficient patent market. Rather, it speaks to better available alternatives or that the patented technologies are commercially irrelevant. It is only where patented technologies are infringed or avoided for fear of infringement liability that the situation can be described as a ‘market failure’. This is because it likely results in a less than optimal exploitation of underlying technologies, thereby causing the social costs of patent protection to be inordinate and diminishing the gain from the patent system. This sort of market failure may
64 Gordon Winder, ‘Before the Corporation and Mass Production: The Licensing Regime of North
American Harvesting, 1830-1910’ (1995) 85 Annals of the Association of American Geographers
520.
65 See, for example, John Golden, ‘Proliferating Patents and Patent Law's “Cost Disease”’ (2013)
51 Houston Law Review 455.
66 Rebecca Einsenberg, ‘Patent Costs and Unlicensed Use of Patented Inventions’ (2011) 76
University of Chicago Law Review 53, 58.
67 Mark Lemley and Nathan Myhrvold, ‘How to make a Patent Market’ (2008) 36 Hofstra Law
Review 101.
68 Michael Abramowicz ‘The Danger of Underdeveloped Patent Prospects’ (2007) 92 Cornell Law
Review 1066.
69 Mark Lemley and Nathan Myhrvold, ‘How to make a Patent Market’ (2008) 36 Hofstra Law
be caused by transaction costs, which may tentatively be described as the costs of facilitating transactions over access to resources or entitlements—in this case patents.
As explained above, the social costs of patent protection are high when the resources sacrificed or opportunity costs incurred for the sake of protection exceed the marginal social benefit derived. Such a state is one of overall ‘failure’, as the patent market may be said to fail when the sum of allocations attained within the market is inefficient.70 Patented inventions are be said to be efficiently
utilised when they are made available to entities who need them most to meet society’s needs in terms of the provision of goods and services71 (i.e. allocative
efficiency).72 Further, when there is an efficient utilisation of patented inventions,
then innovators or inventors can gain access to them for the purposes of technological or scientific advancement (i.e. dynamic efficiency).73
Where allocative and dynamic efficiencies appear to be impaired, economists argue it is as a result of there being a degree of inefficiency or failure in the market. Such a situation generally gives rise to the imperative for third parties to gain access to the patented technologies.74 It is important to note that efficient
utilisation of patents can only be attained with a workable patent market. It is only when the patent market functions properly are third party users able to access patents and put them to uses that advance social welfare. Inefficiencies in the allocations of resources, by reason of the patent system, are often attributable to transaction costs. Sir Robin Jacob succinctly encapsulates this:
The patent system is there to provide a research and investment incentive but it has a price. That price (what the economists call “transaction costs”)
70 Janusz Ordover, ‘A Patent System for Both Diffusion and Exclusion’ (1991) 5 The Journal of
Economic Perspectives 43; see also John Eatwell, Murray Milgate and Peter Newman, The New Palgrave Dictionary of Economics (Macmillan Press Limited, Vol 3, 1987) 326.
71 Jules Coleman, ‘Efficiency, Exchange, and Auction: Philosophic Aspects of the Economic
Approach to Law’ (1980) 68 California Law Review 221, 223-226; see also Harold Demsetz, ‘The Exchange and Enforcement of Property Rights’ (1964) 7 Journal of Law and Economics 11, 16.
72 See Richard Posner, Economic Analysis of Law (Aspen Publishers, 6th edition 2003) 9-10. 73 See Daniel Spulber, ‘How Patents Provide the Foundation of the Markets for Inventions’ (2015)
Journal of Competition Law and Economics 1.
74 See Simone Rose, ‘On Purple Pills, Stem Cells, and Other Market Failures: A Case for a Limited
is paid in a host of ways: the cost of patenting, the impediment to competition, the compliance cost of ensuring non-infringement, the cost of uncertainty, litigation costs and so on.75
Having identified transaction costs as a common cause of patent market inefficiency, it becomes necessary to address how transaction costs can be dealt with. In pursuing this end, the nature of transaction costs and its implications for