سوء استفاده از تسلط و صدور مجوز مالکیت معنوی

We examine the impact of the licensing policies of one or more upstream owners of essential intellectual property (IP hereafter) on the variety offered by a downstream industry, as well as on consumers and social welfare. When an upstream IP monopoly increases the number of licenses, it enhances product variety, adding to consumer value, but it also intensifies downstream competition, and thus dissipates profits. As a result, the upstream IP monopoly may want to provide too many or too few licenses relative to what maximizes consumer surplus or social welfare. With multiple IP owners, royalty stacking increases aggregate licensing fees and thus tends to limit the number of licensees, which can also reduce downstream prices for consumers. We characterize the conditions under which these reductions in downstream prices and variety are beneficial to consumers or society.

In many high technology industries, the development of any new product or service often involves hundreds and thousands of patents. Of particular concern is the so-called patent thicket problem,1 where independent licensing policies by the owners of complementary intellectual property may give rise to royalty stacking — a “horizontal” form of the double marginalization problem identified by Cournot (1838) 2 — and result in prohibitively high licensing fees. This patent thicket problem is often presented as a compelling rationale for significant reform of the patent system and/or licensing policies, 3 and has led competition authorities to apply “abuse of dominance” laws in order to reduce licensing fees. 4 This patent thicket issue is particularly problematic when it involves many patent holders. In practice, however, the reality is often not of thousands of patent owners, but of thousands of patents with a few owners; moreover, patents are often licensed in groups and not individually.5 To be sure, even a few patent owners will tend to set royalties which in aggregate exceed monopoly levels, when acting independently. This type of double marginalization can result in excessive royalties from the patent owners' standpoint and tends to reduce the number of firms in the product market. When only prices matter in that market, this reduction in competition unambiguously harms consumers and society. The impact is less clear when variety matters; as some of the customers buying from a new entrant are switching away from rivals, the revenue these customers generate may exceed the social value created by entry. Excessive entry can involve inefficient duplication of fixed costs, and the resulting market segmentation can lead to higher prices that hurt consumers as well as reduce social welfare.6 In such situations royalty stacking can have beneficial effects. To see this, consider the case of an essential intellectual property (IP hereafter), which is necessary for competing in a product market. If the IP owners can jointly determine the number of licenses and appropriate the resulting profits, they will choose the number of licenses so as to maximize industry profits. In some markets, this may lead them to restrict entry, compared to what would be socially desirable; in such a case royalty stacking, which further restricts entry, hurts consumers as well as society. But in other markets, industry profit maximization may instead generate more entry than is socially desirable — implying that consumers would benefit from restricting entry.7 Royalty stacking then comes as a blessing, by counterbalancing the bias towards excessive entry,8 and can benefit both consumers and society; restricting entry can however result in fewer licenses than is socially desirable, and consumers or society could be harmed. We explore this issue using a standard framework of oligopolistic competition with product differentiation, in which IP owners can sell either fewer or more licenses than is socially desirable.9 Specifically, we adopt the well-known circular city model proposed by Vickrey (1964) and Salop (1979), in which the number of downstream competitors depends on the license fees as well as on entry costs.10 As observed by Spence (1975), the impact of entry on downstream market price is a key determinant of the desired number of licenses.11 This market price, in turn, depends on the value of the marginal consumer served by each downstream firm. Having more downstream firms reduces transportation costs; as marginal consumers are the ones who benefit most from this, an integrated monopolist, controlling both the number of downstream outlets and their prices, would typically wish to have too many outlets. We first consider, as a benchmark, the case of a single IP owner offering licenses for a fixed fee, on a non-discriminatory basis. The IP holder faces a trade-off: increasing the number of licenses enhances product variety, which creates added value; but it also intensifies downstream competition, which dissipates profits. As a result, the IP owner may issue either fewer or more licenses than is socially desirable. We then consider the case of two independent owners of complementary and essential IP. We find that the “patent thicket” reduces variety, as (horizontal) double marginalization leads to higher access charges and fewer downstream firms than does monopoly or joint licensing. But making the market less “segmented” also results in lower consumer prices, and the net effect benefits consumers; it may also increase social welfare when an IP monopolist (or a patent pool) would sell too many licenses. Finally, we show that cross-licensing arrangements may alleviate the effect of royalty stacking, whereas vertical integration — namely, the acquisition of a downstream competitor by an upstream IP holder — does not affect the outcome in our setting. The literature on IP licensing initially focused on the case of a single owner of innovation that achieves a reduction in cost in a downstream market. Arrow (1962) studied the impact of competition in the downstream market on the incentives to innovate, while most of the other pioneering work focused on specific modes of licensing such as the auctioning of a given number of licenses, flat rate licensing or per unit fees. Katz and Shapiro, 1985 and Katz and Shapiro, 1986 focus on the use of flat rate licensing and study the incentive to share or auction an innovation. Kamien and Tauman (1986) show that flat rate licensing is indeed more profitable (for non-drastic, and thus inessential IP) than volume-based royalties in the case of a homogeneous Cournot oligopoly.12 This is partly a consequence of the fact that the licensing agreement offered to one firm affects its rivals' profits if they do not buy a license, and thus their bargaining position vis-à-vis the IP owner; such strategic effects do not arise in the case of essential (or, in their context, of drastic) innovation, since firms get no profit if they do not buy a license — whatever the agreements offered to their rivals. This optimality of flat rate licensing is somewhat at odds with what is observed in practice. This paradox triggered a number of authors to seek explanations for the use of royalties. For example, Muto (1993) shows that per unit fees can be more profitable in the case of Bertrand oligopoly with differentiated products13; Wang (1998) obtains a similar result in the original context of a Cournot oligopoly when the IP owner is one of the downstream firms, while Kishimoto and Muto (2012) extend this insight to Nash Bargaining between an upstream IP owner and downstream firms; Sen (2005) shows that lumpiness, too, can provide a basis for the optimality of volume-based royalties.14 In a recent paper Schmidt (2008) provides an analysis of the patent thicket problem that is closely related to ours. He, too, considers a model with upstream IP owners and downstream competitors needing access to the IP. He finds that, when licensing agreements involve a simple per unit fee, vertical integration between an upstream IP owner and a downstream producer solves a “vertical” double mark-up problem — of successive monopolies — but gives the integrated firm an incentive to increase the licensing fees charged to others, so as to “raise rivals' costs”.15 Schmidt also finds that horizontal integration of IP owners is always beneficial, and reduces the “horizontal” double mark-up problem of complementary monopolies. While the model is in many respects more general (e.g., by allowing for more general demand specifications or alternative forms of oligopolistic competition), it does not consider the impact of horizontal integration of IP owners or patent pools on downstream market variety. In contrast, we show that horizontal integration or patent pools are not always beneficial when accounting for such impact.16

Patent thickets have long been a concern due to the potential for delaying product deployment and adversely affecting consumers. We examine the implications of such patent thickets for downstream market structure and product variety as well as prices and welfare. In the absence of vertical licensing agreements, it is well known that there can be excessive entry, e.g. due to business stealing effects, or insufficient entry, if firms entering the market appropriate only part of the surplus they generate. We revisit this issue, taking into account the gatekeeper role that upstream IP owners play through their licensing policies, and show that royalty stacking can play a beneficial role for consumers and society in situations of excessive variety. We adopt a standard horizontal differentiation framework and first consider the case in which a single owner of essential IP controls entry in the downstream market and can appropriate the resulting profits through licensing fees. The IP holder internalizes any business stealing effect, and can choose to sell a larger or smaller number of licenses than is socially optimal. Granting too many licenses occurs when variety is particularly valuable or very costly, in which case issuing additional licensees allows the IP owner to extract a larger share of the surplus that consumers derive from enhanced variety. When instead downstream products are close substitutes, competition dissipates profits and the IP holder tends to issue too few licenses or, equivalently, charges too high fees for these licenses. When there are two or more upstream IP owners, royalty stacking reduces both the number of licensees and industry profits but, by limiting market segmentation, it also leads to lower prices and higher consumer surplus. Independent licensing can also enhance social welfare, except if it excessively limits the number of licenses, in which case profits fall by more than consumer benefits increase, and social welfare is reduced. As royalty stacking always reduces IP holders' profits, they have an incentive to develop licensing arrangements, such as patent pools or cross-licensing agreements, that allow them to solve the double marginalization problem. We also show that, as vertical integration does not alter the behavior of affiliated downstream subsidiaries, it has no effect on the equilibrium outcome and thus does not affect our analysis. Finally, we discuss the robustness of our insights to alternative types of licensing schemes, such as per-unit fees or profit-based royalties. Products offered in high technology industries are often quite differentiated and embody the (sometimes extensive) patent portfolios of a few firms. Our analysis indicates that royalty stacking in such industries may have a more ambiguous impact than the patent thicket literature suggests.