关键词: 专利资源碎片化, 反公地悲剧, 专利市场失灵, 政府治理, 专利池

Abstract:

 Patent fragmentation, that is patent resources are owned by decentralized innovators, may lead to the tragedy of anti-commons in the patent market. In the field of high technology or emerging industries, the tragedy of anti-commons in the patent market means the failure of the transformation of major scientific and technological achievements or fail in the development of emerging industries, which seriously affect the public interests of the state and society. Therefore, under the background of patent fragmentation, patent market governance plays a more and more prominent role in the transformation of patent achievements and the innovative development of industry. Patent market failure is the core problem of scientific and technological governance research. Unlike the patent jungle, patent fragmentation emphasizes the dispersion of subjects of patents related to product technology from the perspective of achievement transformation, which leads to inadequate utilization of patents, that is, the tragedy of anti-commons in the patent market. Existing studies have recognized the tragedy of anti-commons in the patent market, and proposed governance mechanisms or measures from the market perspective, but neglected the government governance research on patent market failure caused by patent fragmentation.Construct a game model between multiple patentees and producers, and analyze the equilibrium of patent market. It is found that when considering transaction costs and patent structure, producers will choose tort production or non-production, and the patent market will fail. It means in the situation of patent fragmentation, even if all patentees are willing to license, the increasing frequency and cost of patent licensing transactions lead to the overburden of transaction costs in the patent market, which makes the patentee's individual licensing and patent pool licensing both in a dilemma, market mechanisms such as cross licensing and patent pool will fail. Then, there has been a tragedy of anti-commons in the patent market.Licensing in the patent market will affect the product market, and the failure of the patent market will lead to the shrinkage of the product market. At this time, government intervention is needed. Construct the government governance model of patent market failure. The core goal of government governance is to stabilize the patent market and develop the product market. The key of government governance is to reduce the transaction cost of patent licensing.Taking American aviation industry patent market governance case as an example, through case study, the tragedy of anti-commons in the patent market under the situation of patent fragmentation and its government governance mechanism are studied. The research has the following findings: Firstly, high transaction costs make it difficult to realize cross licensing and patent pool in the aviation patent market, and failure in the aviation patent market seriously restricts the development of the American aviation industry market. The fragmentation of patent resources leads to the failure of patent market, which not only obscures the contribution of patent itself to technological innovation, but also has a negative impact on technological progress and innovation development of the whole industry. Secondly, the establishment of patent pool will reduce the transaction cost of patent market. The establishment of American aviation patent pool effectively reduces the transaction frequency and search cost of manufacturers. Whether a manufacturer chooses to join or not to join the patent pool, it reduces the contracting cost of the manufacturer. Thirdly, compulsory cross licensing can reduce the negotiation cost of patent pool establishment. The government can compel the cross licensing of industrial core technology patents by canceling and expropriating patents, thus achieving the successful establishment of patent pool. This shows that compulsory licensing, as a means of government regulation of the patent market, can effectively maintain the normal order of competition in the patent market, break down the barriers of malicious monopoly in the patent market, and realize the effective protection of patent innovation at the whole industrial level, not just at the individual level. Fourthly, price control can control the cost of patent acquisition. By controlling the price of patent licensing, the government maintains the patent licensing fees at a level acceptable to all parties in the patent market, eliminates the negative impact of malicious bidding by patent owners on producers and the prices of products, and ensures the effective operation of the patent pool. Consequently, through compulsory cross licensing and price control, the government guides patentees and producers to form patent pools together, which can effectively reduce transaction costs of patent market, stabilizes patent market and develops product market, and promotes patent licensing and industrial development.Based on the game model between multiple patentees and producers and the case study of American aviation industry patent market governance case, analyzes the emergence of the tragedy of anti-commons in the patent market and its government governance mechanism under the situation of patent fragmentation. The main findings are as follows: Firstly, patent fragmentation will increase the number of licensing transaction, and enlarge the cost of licensing transaction, lead to the failure of patent market. Patent market mechanisms such as patent pool will be failure, and then the tragedy of anti-commons with insufficient patent utilization appears. Secondly, By means of compulsory cross licensing and price control, the government promotes the establishment of patent pool, reduces the transaction cost of patent licensing, reduces the opportunistic behavior of patent owners, effectively governs the failure of patent market and avoids the tragedy of anti-commons in the patent market.The government governance mechanism of patent market failure has some enlightenment for the transformation of scientific and technological achievements and the development of new industries in China. At present, under the background of China's technological innovation institution, institutional factors have aggravated the degree of fragmentation of patent resources, technology commercialization faces greater transaction costs, which restricts the development of industry. By breaking the restriction of institution and mechanism and setting up patent pools around core products and industrial core technologies, the government can greatly reduce the transaction costs of all parties to patent licensing, effectively alleviate the difficulty of science and technology achievements transformation caused by of patent fragmentation, and promote technology licensing and technology commercialization.

Key words: patent fragmentation, tragedy of anti-commons, patent market failure, government governance, patent pool