Tragedy of the anticommons: En integreret økonomisk-juridisk analyse af anticommons i den danske biotekindustri

Mette G. Bahn & Signe Louise Hansen

Student thesis: Master thesis


In this thesis we explore whether there exists a Tragedy of the Anticommons in the Danish biotech industry. For Anticommons to exist there has to be multiple blocking patents, which either prevent the development of new products or results in bargaining breakdown. To test this we conducted a small-scale survey with five Danish biotech companies and we conclude that there is some evidence of Anticommons in this industry. The companies had some difficulties in bargaining over licenses to patents and experienced problems with patents blocking their development process. This caused the companies to abandon potential projects. We therefore explore which possible solutions there could be to this Anticommons problem and suggests a solution based on remuneration rights. The solution should gather all biotech patents in a database and offer standard licensing contracts. Furthermore the database has to be managed by a public unit and participation has to be compulsory for the solution to be effective. The solution combines the theory from patent pools and clearing houses and reduces the transaction costs associated with bargaining over licenses and makes it easier for parties to reach an agreement. We end the thesis with an analysis of how this solution would affect the incentives of the companies, and find that a compulsory solution would affect the parties’ freedom to decide whom they want to contract with. This could adversely affect their incentive to patent inventions and instead lead them to keep new inventions secret. To prevent this, there has to be a possibility to opt-out. The solution should therefore be implemented in a way, so that the companies have incentive to develop new products, patent them and still participate with the patents in the database.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2009
Number of pages90