Patent law professor Douglas Lichtman (and my good friend) has an interesting new short article (8 pages of text) about problems of “patent thickets.”
Theorists have discussed patent thickets as an example of problematic over-ownership — A.K.A. the tragic “anti-commons.” When a particular area of technology is blanketed by multiple patents owned by multiple parties, everyone blocks everyone else, and nothing gets done.
After all, the conventional literature on the tragedy of the anti-commons asserts that resources will be inefficiently under-used in the face of too many overlapping patent rights.
Lichtman turns this theory on its head and asserts that in actuality, a very thick thicket might result in less litigation. His idea is in a case of multiple overlapping patents, each patent represents only a small piece of the pie. And few patentees would be willing to go through litigation simply to recover such a small slice.
More patents means less money per patent holder. Less money, in turn, means less of an incentive for a firm to strategically delay in the hopes of being a patent holdout, and less of an incentive for an accidental patent holdout to actually bring suit.
A couple of weeks ago, I would have rejected Lichtman’s argument out of hand. Under the old rule, every patent holder had a right to force large settlements based on its hold-up threat through injunction. Now, post eBay, his ideas begin to make more sense. . .