How to Make a Patent Market

Abstract

Imagine a stock market in which buyers and sellers couldn't find out theprices at which anyone else sold a share of stock. If you wanted to buy (orsell) a share of stock, you'd have to guess what it was worth. The result,everyone would agree, would be massively inefficient. Willing buyers andsellers would often miss each other. Patents, however, exist in just such ablind market. Want to know if you're getting a good deal on a patentlicense, or acquiring rights in a technology? Too bad. Even if that patentor ones like it have been licensed dozens of times before, the terms ofthose licenses, including the price itself, will almost invariably beconfidential. Patent owners who want to put their rights up for sale facethe same problem.The result? Willing licensors and licensees can't find each other. Patentauctions often fizzle, because without a thick market - one with an arrayof buyers and sellers bidding on price - no one can know whether they aregetting a steal or being had. When parties do license patents, the pricesare (to the extent we can tell) all over the map. And the rest of the worldhas no idea what those prices are. This in turn means that courts lackadequate benchmarks to determine a ¿reasonable royalty¿ when companiesinfringe patents.The solution is straightforward: require publication of patent assignmentand license terms. Doing so won't magically make the market for patentswork like a stock exchange; there will still be significant uncertaintyabout whether a patent is valid and what it covers. But it will permit theaggregate record of what companies pay for rights to signal what particularpatents are worth and how strong they are, just as derivative financialinstruments allow markets to evaluate and price other forms of risk. Itwill help rationalize patent transactions, turning them from secret,one-off negotiations into a real, working market for patents. And by makingit clear to courts and the world at large what the normal price is forpatent rights, it will make it that much harder for a few unscrupulouspatent owners to hold up legitimate innovators, and for establishedcompanies to systematically infringe the rights of others.

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