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Publication Citation

106 Northwestern University Law Review 103 (2012)


This Article examines and evaluates the theory that patent holders privately self-correct the government’s excessive apportionment of patent rights by means of various cooperative efforts including patent pools, research consortia, and similar licensing collectives. According to some experts, these efforts are proof that market participants have the wisdom and the will to collectively disarm their patent arsenals in order to advance long-term innovation. But until now, this theory of market self-correction has not been evaluated through empirical study. Drawing on interviews and original research, this Article provides an ethnographic view of collective patent licensing episodes. Amidst these stories of success and failure, cooperation and conflict, the picture that emerges is more complex than theory alone predicts: government policies, the backward-looking concern of litigation over existing products, and various social goals significantly influence collective patent licensing. This study suggests some important refinements to theory and points the way forward for industry, lawmakers, and the public to begin a new discussion about the role of collective behavior in our patent system.