There is no anticommons effect in patents

Experience does not bear out Heller and Eisenberg’s anticommons thesis in the patent context. In many situations where multiple patents covering many products in many contexts, there are extraordinary rates of innovation despite the fact that barriers supposedly exist.13 This should give immediate pause to anyone trying to understand whether or not there is a policy issue of the kind Heller and Eisenberg suggest with respect to the socalled “anticommons.” As discussed below, one can seriously question whether the “anticommons tragedy” arises all that frequently. Every day, many firms face the challenge of assembling thousands of inputs to make complex systems. The existence of products that require licenses from multiple patent owners supposedly leading to what Heller and Eisenberg characterize as a “tragedy of the anticommons” does not, in practice, seem to lead to serious problems.

Empirical work appears to confirm this commonsense intuition. For example, one study by Walsh, Arora, and Cohen did not show support the anticommons tragedy thesis for biotech.14 Instead, they found that patents only posed a relatively small number of obstacles.15 Further, the “solutions” to these obstacles included licensing, doing the research beyond the reach of patents, and outright infringement.16 In addition to the Walsh et al. study, Fiona Murray and Scott Stern (2007) see little evidence of harmful effects created by patent thickets.17 Their test examines knowledge difference rates associated with the publication of a patent.18 Anticommons theory predicts a drop–off in citations to the research once patents are granted; they find at most only a modest drop off.19