Patented Standards and the Tragedy of Anti-Commons

Nari Lee, Hokkaido University-Law; University of Joensuu - Faculty of Law

10/14/2008
(Original Publish Date: 2/15/2006)

Arguments that intellectual property is becoming more and more like tangible property have been heard. Reflecting this is the propertization debates on intellectual property. Propertization debates start from the very question how similar or how different IP rights are, and should be, treated differently from property rights on tangibles both in theory and in practice. In the context of propertization debate, this article approaches the question of private ordering that is enabled by newly patent eligible subject matter, computer programs, and evaluate the application of strands of property theory that have been influential in the IP law and economics literature. In particular, this paper assesses two applications of property theories to IP, in the context of patented standards in ICT industry, and argues that while it is important to note that IP as a legal construct that connects physical property to intangible ideas and information, solely emphasizing its continuity may disregard some of the more fundamental aspect of the IP institution.