The 'Tragedy of the Anticommons' Fallacy: A Law and Economics Analysis of Patent Thickets and FRAND Licensing

摘要

Heller introduced the "anticommons" concept in the late 1990s, based on Hardin's earlier "commons" concept, to refer to the situation in which numerous entities control the rights to use some asset or related cluster of assets. Heller and Rosenberg argued that, in such situations, users would need permission from multiple rights holders in order to use the asset(s), and that the difficulties of coordination would lead to inefficient underuse, leading to what they termed the "tragedy of the anticommons." This Article addresses the limitations of the "tragedy of the anticommons" arguments in the context of licensing of patents related to some industry standard for which the patent holders have committed to license their patents on "fair, reasonable and nondiscriminiatory" ("FRAND") licensing terms. This Article identifies several real-world examples where Heller and Eisenberg's prediction of underuse are not borne out in practice, and explain why real-world institutions that have emerged have largely solved the problem.