TEORIJA ENDOGENOG RASTA

,
:
1,
2. 3
, , , , , ,
(, , , ),
() (
),
4.

, (
5).
19. 6 ,
Statute of monopolies (1624) Act for the encouragment of learning (1710)
7.
.

(1400-1800),
8.
,
(trade secrets),

. ,
.
13. ,
19. 14749.
1 , , , ,
, , ,

2 , , ,
, , ,

3 , , ,
, 2014, 21
4 William Landes, Richard Posner, The economic structure of intelectual property law, Harvard University press,
Cambridge 2003, 1
5 .
6 Mark Lemley, Property, Intellectual Property, and Free Riding, Texas Law Review, Vol. 83, 2005. , . 4
7 Brad, Sherman; Lionel Bently . The making of modern intellectual property law: the British experience, 17601911,
Cambridge University Press, Cambridge 1999, . 207
8 R. Epstein, Marten Praak, Guilds, Innovation and the European Economy, 1400-1800, Cambridge university press
2010
9 Long, P. O. , Invention, authorship, "intellectual property", and the origin of patents: notes
toward a conceptual history.,Technology and Culture, 32, 1991 , . 846884.

 ,

, .
10. ,
,
.
, , ,
. 11
( o),
. ,
, ,
12.
(
),
.
.
,
.
13 ( /
), , (),
( . ).
, ,
. ,
(
. )
.
eoo oa oj e o a
oo eeo
o:
ooa: Nokia
oo N95
oe: Symbian, Java
ae:
Meo oae oaaa
oooa eaa
oa
eja jeea

Aoa aa:
oe o
o a oe
Meoja

Nokia
ooe aje:
?
aj (e o eoa):
O eeoa
Oa o aae
Toeoa aaa o a

10 Mark Lemley, Property, Intellectual Property, and Free Riding, Texas Law Review, Vol. 83, 2005, . 30
11 , , , ,
, 2008, 300
12 ,
.
. ,
, ,
.
13 lexander Tabarrok, Patent theory versus patent law, The B.E. Journal of Economic Analysis & Policy vol.1 2002,
article 9 p.

TA JE EKONOMSKA ANALIZA
:
,
14. , .
,
.
,

15.

.
: 16%.
: .
.
:
(Homo economicus 16)17,
18

14 Louis Kaplow, Steven Shawell, Economic analysis of law, National bureau of economic research working papers,
str 3 , 1999
15 Jean Hindriks,Gareth D. Myles, Intermediate Public Economics (2nd ed. ed.), Cambridge, MA: MIT Press (2004)
16 Bowbrick, Peter, A Critique of Economic Man Theories of Quality, 1987.
17 . Homo economicus ,
.
,
, .
(
) .
, ,
.
18 Jean Hindriks,Gareth D. Myles, Intermediate Public Economics , . 126, Cambridge, MA: MIT Press (2004)

 ( );
. .


. (
,
,
,
, . )
19 . (.
) , 20 ( ,
,
, , ,
, )
( ,
. )
- (

).
, -
, ,
(. lump sum
).
, (
, . ,
,
,
).

,
21.
, ,
-
.
, laissez-faire . ,
, lump sum ,
,
()
( 22)
.
The Second Fundamental Theorem of welfare economics has fundamental
19 Stiglitz, Joseph E., The Invisible Hand and Modern Welfare Economics (March 1991). NBER Working Paper No.
w3641. . 4
20 , , , ,
, 2008 185
21 . 248
22 . 433

implications for how we think about economic organization. It says that we

can separate out issues of economic efficiency from issues of equity.
Economists need not concern themselves with value judgments; whatever the
government's distributive objectives, it implements these through initial
lump sum taxes ( ) and subsidies, and then leaves the market to work for
itself.
TA JE PATENT
.

23,
.

, 24 : ) ,
, ,
, , ) ,
,
, ,
.
.
.

. ,
. ,
, .
,
.
,

, , 20 ,
( 20
35 154 2 25 (U.S. Code),
(EPC) 20
63 226 . 39 27 ,

28.
,
( . ,
23 , , ,
, 2014, 101
24 ( ) . 28
http://www.zis.gov.rs/upload/documents/pdf_sr/pdf/trips.pdf
25 http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title35-section154&num=0&edition=prelim
26 http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar63.html
27 , , . 99/2011 . 39
28 . . 113-127

 29 ). .
,

( ). 1883.
,
,
12 .
,
30 ( ,
, , .
(
2012.
31), 32).
, ( ,
, )

, .
,
(.
)


( ). (
)
, (.
)

33.

.
18 ,

.


34 ( ),
1994.
(WTO). (
),
,
29 , , . 3/96,
32/2004 . 2 1
30 , , . 99/2011 .
31 http://www.zis.gov.rs/-.48.html
32 , , . 99/2011 .17
33 . . 96
34 http://www.zis.gov.rs/upload/documents/pdf_sr/pdf/trips.pdf

 .
, (. 79) :
1) , 2) ( ,
, , , ,
,
), 3)
, 4) , 5) .

.
35.
,
. , 36(
. , . 79,
, , , . ).
,

( ),
18 . 6
,
37 (.
, ,
,
. 9, .). ,

, 30 .
,
. 38,

.
,
.
1: 39

35
36
37
38
39

, , . 99/2011 . 86
. . 99
. . 104
http://reg.zis.gov.rs/patreg/
http://www.zis.gov.rs/upload/documents/pdf_sr/pdf_patenti/Dij_postupka_P_MP_28_5_13.pdf


1883. 40,
( 1
, , , ,
, , )
(176 2014.41).
2
.

(
). 4

12 . ,
(
), (
) .
,
42 (Patent cooperation treaty PCT )
1970. ( 1996.43)
(148 2013. 44)
(PCT
.
).
, ,
,
(.
)45 ,
(WIPO) (
)
,
, ,
12
. , 12

,
:
, ,
,
,
40
41
42
43

http://www.wipo.int/wipolex/en/details.jsp?id=12633
http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/paris.pdf
http://www.wipo.int/pct/en/texts/articles/atoc.htm
,
, . . 3/96 . . 32/2004
44 http://www.wipo.int/pct/en/pct_contracting_states.html
45 ,
, . . 3/96 . . 32/2004 . 2
1 12

 .
PCT , ,
, , ,

PCT 46 ,
30 47,
, .
,
.

30
.

. .

, 12

.

,
(WIPO)48 .
,
12 ,
8 .

49, WIPO
50, . ,
51, 3 9
, 52. ,
2004, ,
.
, 18
53. ,
19 54.
46
, ,
,
(), (),
(), ()
47 () 30
,
,

48 , . . 3/96 . .
32/2004 . . 2 1 (xii)
49 . . 12
50 . . 15
51 . . 18
52 . 42
53 . . 21
54 45


55 ,

30 56 ( 2002.
20 ).
, ,
.
.
(
,
, ,
,
), 19
57 . 30
, .

(. ),

,
,
.

55 . . 31
56 . . 22
57 . . 39



(2015)

,
. , ,
()58 1995. .
8 , . ,
()59 1976.
. , 19 , 12
.
,
, () 1973.
1.10.2010. 60. 38
, .
,

: , .

.
- registration-only,
.

- . , ,

,
-.
:
(
), ( 12
), .
-, - .
- ,
.

.
, 12
. ,
58 http://www.eapo.org/en/
59 http://www.aripo.org/
60 ( ) 5.
1973, 63. 17. 1991.
29. 2000. , . , . 5/2010 .
. 99/2011 .

 .
, ,
.

(PCT).
140 .

, .
, , ,
. ,
, ,
.
,
61, 62 63.

,

. , ,
64. , ,
.
.
,
,
65.
,
,
. , ,
.
,
, . ,
, ,
66.
: ;
; ; ( )
; 67. ,
.
68 .
,
.
61
62
63
64
65
66
67
68

. . 54
. . 56
. . 57
. . 52 2
. 53
. . 14 2
. . 78
. . 90 1

: ,
, .
, . 69
,
, , ,
.

70,
.
, .
, ,

.
71 - - 18
.

, 72.
,
,
. ,
. ,
,
.
, ,
,

, . , ,
,
. ,

.
.
. ,
.
73 .
,
. . ,

.
.
.

69
70
71
72
73

. . 90 3
. . 92
. . 93
. . 94
. . 97

 , 74 -
( ,
).
9
. ,
. ,

.

.

.
.

. 2012. ,
. ,
-, ,
.
-,

,
, .
(
) .
, ,
,
,
75.
. ,
(Unified patent
Court UPC), ,
( ) (. ).
UPC ,

.

, .
76 , ,
. ,
, ,
. ( ,
74 . . 99
75 . 2 . 64
76 , , . 99/2011 . 7 1

, , ,
,
77.
.78)
. 79 (
) ,
, )
n
) ).
, )
, )
,

. ( . 10 . 6

,
).
, 3 4 10,
80

( ),
( 3) ( 4)
.
,
(. ).
; ,
,
. ,
.
( ) . first-to-file ,

, ex officio
. First-to-invent ( 1989.),
( 1998.) 81( 2013. America Invents Act
). ,
,

, 82.

.
( ,
77 . .7 5
78
79 . . 10
80 . . 9 1 2
() ,
,
.
81
82 Leonid Kravets, First-to-file Patent Law is imminent, 2013, http://techcrunch.com/2013/02/16/first-to-file-a-primer/

 ).
,
,
. , .
. ,
83.
, ,
.
,
( ) .

(
, ).
.
,
(. ). ,
(utility) ,
.
.
,
52 184
85 (novelty),
(inventive step) (industrial application).
,
35 (Title 35 of United States Code, o 35 U.S.C) 101

(/)
-
-
Patents are perhaps the most important legal instruments for protecting intellectual
property rights. A patent confers to an inventor the sole right to exclude others from
economically exploiting the innovation for a limited time (20 years from the date of
filing). To be patentable, an innovation must be novel in the sense of not constituting part
of the prior art or more generally of not being already in the public domain. A patentable
innovation also must involve an inventive step, meaning that the innovation must be non-obvious to a person with ordinary skills in
the particular field of application. The innovation also must
be useful to be patentable; that is, it must permit the solution of a particular problem in at
least one application. A major element of a patent application is disclosure: the invention
must be described in sufficient detail to enable those skilled in the particular field to

83 , , ,
, 2014, 109
84 http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar52.html
85

practice it.
The patent application also lays out specific claims as to the scope of the
patent itself. The traditional statutory scope of patentsencompassing machines, industrial
processes, composition of matter, and articles of manufactureexcluded important
kinds of scientific discoveries such as laws of nature, natural phenomena, and abstract
ideas. But recent developments in the use of patents for computer software, information
technology, and biotechnology innovations are challenging a reductive interpretation of
such exclusions
istorija patenata u svetu

EU: novost (new), inventivnost (invevntive step), privredna primenljivost (industrial

applicability) (vidi iz Popovic Markovic Pravo intelektuale svojine str. 107)
US: novelty, usefulness, non-obviousness (i ovaj ya nonobviousnes teorije)
trade secrets (poslovna tajna) ili patent (Kelly 2009) (Halligan 2010)
The birth of every patent starts out as a trade secret. At the time of conception, the idea or
information can only be protected by keeping it secret. However, a subsequent decision needs
to be made to determine whether or not to convert the trade secret asset into a patent asset.
The traditional approach is based on the NUN factors: novelty, usefulness, and nonobviousness. If the trade secret asset meets the patentability requirements, then the decision
tree often dictates that the owner seek patent protection because a patent will provide
greater protection.The owner of a patent is entitled for a limited time to exclude any person
or
entity from making, using, selling, or offering to sell the patented invention.
In contrast, the life cycle of a trade secret depends upon secrecy.
Disclosure of the trade secret to the public vitiates the trade secret. Moreover, trade secret
protection extends only to confidential relationships and does not
prevent independent development by a competitor.The traditional patent-versus-trade-secret
calculus also takes into consideration the ease or difficulty in detecting patent infringement
by a competitor and the ease or difficulty that a competitor will encounter reverse
engineering the trade secret. In both circumstances, the greater the degree of difficulty in
detection or reverse engineering, the greater the scale tips in favor of trade secret protection.
For example, the famous Coca Colaformula has been kept as a trade secret asset for over 100
years because competitors cannot reverse engineer the exact
Coca Cola formula. If the owner had patented the famous formula, then intellectual property
protection would have been lost forever upon the
expiration of the patent.Similar considerations exist in the licensing world too.
Trade secrets, unlike patents, can be licensed forever. The right to obtain royalties for a
patent ends upon the expiration of a patent.
In contrast, the trade secret licensee can be obligated to continue paying royalties for the
trade secret license even if the information has entered the public
domain. This fundamental principle was enunciated in the famous Listerine case.

first-to-file vs. first-to-invent (Frost 1967.), (Manzo 2014.)

zato su nam potrebni patenti
teorije patenata : teorija nagrade , ugovorna teorija patenata

There are several different interrelated theories about patents. Some consider a patent as a natural
right, to be able to own and profit from one's invention. In securing a property right, a patent solves
the inventor's dilemma, providing a commercial platform for promoting technological innovation,
even though some see patents as an obstacle to innovation. Certainly a patent is a business tool, as it
offers potential for profit through licensing, and the prospect of a defensive shield against patent
assertion by others (countersuit).
TEORIJE PATENATA (MOZDA SAMO OVE PRVE 3 AL POVEZI SA EKONOMSKOM
ANALIZOM DIFUZIJE INFORMACIJA I PODSTICANJA R&D )

(1) 86
Economic theory, however, provides an argument for why patents could
improve the allocation of resources. Original research and development is
usually more costly than imitation. A firm will not be able to recoup its sunk
costs if the results of its research are quickly imitated by rivals. Recognizing
this, firms will have little incentive to invest in innovation. Patents and other
forms of intellectual property increase the incentive to innovate by delaying
the arrival of imitators thus giving pioneer firms time to recoup their sunk
costs through monopoly pricing
The recouping the sunk costs of innovation theory is the dominant
86 lexander Tabarrok, Patent theory versus patent law, The B.E. Journal of Economic Analysis & Policy vol.1 2002,
article 9 p.

theory of patents among economists (hence, I will also refer to this as the
economic theory). Thus Bessen and Maskin (1991) write, The standard
economic rationale for patents is to protect potential innovators from imitation and thereby give them the incentive to incur the costs of innovation.
(2) Teorija nagrade
The reward theory maintains that the function of the patent system is to
remunerate successful innovators so as to encourage R&D effort. In the
wording of the US Constitution, intellectual property rights are granted in
order to promote the Progress of Science and useful Arts. This theoryby
far the mostprominent approach to the economic analysis of patents since the
classic work of Nordhaus (1969)87 assumes that unpatented innovations are
easily imitated, and thus focuses on thenon-exclusive nature of technological
knowledge. In this perspective, in the absence of a patent system, there would
be too little investment in R&D
(3) Ugovorna teorija patenata
the contract theory emphasizes the non-rival nature of innovation88: once it
is created, it can be shared at no cost. On the assumption that absent patent
protection firms can practice their innovations secretly, it views patents as a
contract between innovators and society, whereby a temporary property
right is granted in exchange for disclosure. Thus, the contract theory holds
that the function of the patent system is to promote the diffusion of
innovative knowledge. This theory has a long tradition and is popular with
courts. In the landmark case Universal Oil Products v. Globe
Oil&Refining(1944), for instance, the US Supreme Court couched the view
that: As a reward for inventions and to encourage their disclosure, the United
States offers a 17-year monopoly to an inventor who refrains from keeping his
invention a trade secret. But the quid pro quo is disclosure of a process or
device in sufficient detail to enable one skilled in the art to practice the
invention once the period of the monopoly has expired; and the same precision
of disclosure is likewise essential to warn the industry concerned of the
precise scope of the monopoly asserted.

(1) A Natural Right

Chief Justice John Marshall wrote that patents fulfill one of the "great fundamental principles of
right, and of property." As a natural right, when a new, useful invention is created, its ownership
belongs to its inventor.
On this theory, an invention's creator has a natural right to control the destiny of her invention, to
use and profit, even after disclosing the technological innovation to others. The theory of natural
87 William Nordhaus, Invention, growth and welfare: A theoretical treatment of technological
change, MIT Press 1969, Cambridge

88 Vincenzo Denicolo, Luigi Alberto Franzoni, The contract theory of patents , International Review of Law &
Economics Vol. 23 2004, p. 369

rights of free people is the foundation of political constitutions for democracies around the world
.(2) The Fruit of Labor
Should a person possess and profit from the fruits of their own labor? If one does not believe that
slavery is justified, there is no socially acceptable basis to reject the notion that those people are
entitled to their own creations. The labor theory underpins rationale for all intellectual property
protection, especially copyrights and patents.
As part of the French revolution at the end of the 18th century, patent law was established as
protection for the people against their their rulers. Patents are rightly viewed as ownership of the
result of inventor's creative labor.
(3) A Property Right
The essence of a property right is the right of exclusion - to prevent trespassing. Intellectual
property law extends the concept of property to the outcomes of intellectual endeavors. Patents
create a property from information.
Nominally, information is a public good. A patent restrains knowledge from becoming a public
good, as least for a time. A patent solves what economists call an appropriability problem - that
without patent law, once disclosed, inventions are free for the taking.
A central issue with regard to patents as a property right is determining the size of a patent property
- legally, the doctrine of equivalents. Where is the line properly drawn for establishing a property
right for an invention? Should an inventor be granted rights to similar inventions, or be limited only
to what he knew at the time of the invention? If there were no doctrine of equivalents, it could be
quite easy to work around a patent claim, and it could be even more difficult to draft an acceptable
patent claim than it already is, or have a claim interpreted as a property right. Without a doctrine a
equivalents, the value of patents could become meager, and the inventor's dilemma might still exist.
(4) Monopoly
In its ability to exclude, a patent exists with the power of a quasi-monopoly. That itself provides the
economic value of a patent. As described earlier, product monopolies impose a cost, but a patent
represents a monopoly of a unique sort: something that did not exist before the grant of monopoly.
(5) Social Benefit
Prosperity rides the horse of technological innovation. If you accept the premise that patents add
economic incentive to allocate resources to invention, patents benefit the societies in which they
exist. Patents promote innovation, to the benefit of society as whole.
This theory of social benefit hangs upon consistency in the treatment of patents as a right.
Diminishing the scope and/or enforceability of patents destabilizes the economic incentives that
patents provide. Congress should keep that in mind as it ponders limiting the injunctive power to
stop patent infringement, the fundamental patent right - the right to exclude.
(6) Market Regulation
A patent is a form of market regulation, a legislative remedy to a market failure. If left to the
market, information as a public good, inventors would not have control over the benefits of their
own inventions. So the government regulates, creates a property right to solve an otherwise
intractable problem of fostering innovation (the inventor's dilemma).
(7) Investment Incentive
The dominant effect on the economy of patents is reducing the risk of committing resources to
innovation.
Imitation is the sincerest form of flattery. Without patent protection, successful innovative products
would quickly be copied. There wouldn't be investment in research & development of innovative

technology if the cost could not be recouped through exclusivity. A patent assures confidence that
risking capital on research can pay off with exclusive rights to the results. Reducing this risk
improves the equation for calculating the profitability potential of research projects, resulting in
greater investment in invention. Here is another theory where stability in the scope and
interpretation of patents is an intrinsic factor relating to investment risk assessment.
As an example, the Plant Variety Protection Act of 1970 provided patent protection for sexually
reproducing plants. In the 1960s, about 150 new plant varieties were developed in the U.S. In the
1970's, after providing patent protection, over 3000 new plant varieties were developed. Truly,
patents provide the seeds for innovation.
(8) Seeking Rent
In economics, rent describes a situation where return on investment exceeds the opportunity costs.
Rent comes to a patent-holding company by allowing the company to reduce costs and/or increase
profits through the patented feature copy protection that patents afford. Economists characterize the
patent system as a "rent seeking" environment because it results in allocating resources to generate
growth-promoting technology. Patents inspire invention because companies can hope to recoup the
cost of investing in research.
(9) A Prospect
A patent creates a tangible asset from invention. If an investor feels assured that a patent would
confer a lucrative commercial right, that is, that the envisioned patented product would be
successful, this adds incentive to initiate the invention process. Successful invention in an area leads
to further innovations in the same area, allowing greater scope for claims, and enhanced protection.
The prospect theory emphasizes the point of early disclosure to stake a claim. A first-to-file patent
system meshes with the prospect theory - as with gold prospecting, stake claims as early as possible.
(10) A Reward
The idea of treating a patent as a reward for invention is both simple and hoary. The reward is a
right to exclude. In economic terms, an inventor appropriates the social returns to innovation.
Though appealing in its simplicity, the reward theory owns the blame for historical
misunderstandings of the nature of patents. The judiciary has at time allowed attacks on patents
based on the reasoning that if an invention did not technologically merit a reward, the patent should
be invalidated. The Supreme Court has held that the issue of validity should be decided in litigation
cases, even if the assertion is mooted by non-infringement, so as to snuff meritless patents.
Under the reward theory, there is a presumption that technological innovation is inevitable, and that
the patent reward of exclusivity is merited only if by dent of meritorious technological achievement.
Adherence to the reward theory supports the notions of a threshold of innovation to merit patent
protection, and a patent grant commensurate with a measure of innovation claimed.
Arising from the reward theory, there have been proposals at times that software patents do not
merit the protection afforded other patents, owing to the way by which software innovation occurs:
as a product of mental insight, with no physical manipulations. One suggestion has been to limit the
term of software patents to some duration less than other patents. That something done
electronically in hardware may often be done in software makes this a facile proposal. Moreover,
deriding a software patent as merely the outcome of a thought experiment only belittles software
innovation. It is worth pondering that innovation in software has accelerated in the time since
software patents have been allowed (the early 1980s), and that the largest software companies hold
the most patents, and devote the greatest resources to R&D. This is not a statement of stasis, but of
the the dynamics of the software business. In software, more than any other industry, failure to
continually innovate leads to a company's demise.
Both the prospect theory and the reward theory emphasize the importance of the patent office as

arbitrator of obviousness in granting patents.

(11) A Contract
The concept of social contract is that of an agreement between citizenry and its government, as
opposed to the feudal concept of the divine right of kings, upon which the power of the Catholic
church was built.
Ideas about the social contract date back to Greek philosophical writings in the 5th century.
Beginning in the 17th century, the theory of social contract was linked with the concept of natural
law. In this regard, a patent as a contract corresponds with the theory of a patent as a grant of natural
right. John Locke was an influential writer about the social contract and natural rights.
The courts find the concept of a patent as part of social contract appealing, relying upon the theory
in decisions about enablement and description requirements.
Much information published in patents would not otherwise be disclosed in absence of a patent
grant. Without an opportunity for patenting, the inventor's dilemma augers for secrecy.
The contract theory flies in the face of publication prior to allowance, which has become endemic in
the U.S., but is insensible - an applicant cannot recover lost secrecy if a patent is not granted. Better
to keep the secret unless patent protection is afforded. 35 U.S.C. 122 covers publication of patent
applications, with 35 U.S.C. 122(b) allowing non-publication.
(12) Inventing Around
As described foregoing, the monopolistic effect of a patent is confined to the availability of
substitutes. Given the power of a patent to exclude, the patent system promotes the development of
substitutes, fostering an environment of innovation. Particularly powerful patents with broad scope
stimulate leapfrogging: jumping to the next generation of technology. Thus patents encourage
technical advance, a greater diversity of products, and competition. The result is a more productive
economy.

The rationale runs that in the absence of copyright or patent protection

covering an individual's or firm's information creation, the low cost of copying such works will induce competitors to
enter and "steal" another's product without penalty. Hence, rivals may profit from another's intellectual efforts without
expending any energy or costs other than the relatively minor costs required to duplicate the socially valuable creation
In turn, the incentives of "original" creators to generate beneficial informational works will be greatly
diminished, if not entirely eliminated. They will not be able to reap pecuniary rewards for their efforts or even recover
their costs in many cases because of competitors copying their works and undercutting their prices. Given that
innovators will have
little hope of recovering their investment, the production of information will be seriously curtailed, and its
associated benefits upon society will be lost
By assigning exclusive rights over the use and distribution of informational works to their creators for a
specified
duration, individuals and firms can safely anticipate the potential rewards for their inventive endeavors. Thus, they will
be led to engage in substantially more information generation activity than their private calculus would indicate that
they should in a regime lacking legal protection. The fundamental principle is to bring the private incentives to develop
socially useful information in line with the social incentives, an intuitive goal that barely anyone would question.
Simply put, we want information to be created when its development cost is less than its social value, and intellectual
property rights aim to serve that purpose.
The
desirability of awarding property rights in information depends upon whether their advantage of encouraging the
generation of information outweighs their costs in terms of the restrictions placed upon the availability of that
information. When the law gives a creator a copyright or patent over her work, in effect a temporary monopoly over
that piece of information is awarded. With monopoly rights come monopoly prices. As such, there is the very real
possibility that many individuals who value the good at greater than its marginal cost of production, so that it would be
socially desirable for them to have it, will be unable to obtain it if their valuation is below the monopoly price.
The corresponding social loss may potentially be quite significant, especially in instances where the spread

between marginal cost and monopoly price charged is rather large, for example in the pharmaceutical and software
industries.

PODSTICAJI KOD PATENATA

. ,
.

.
80%
. ,
.
Nelson Mazzoleni podsticaji
stariji pdf pogledaj razlike
There are at least four incentives that justify a system of granting patents. These incentives are: (1)
an incentive to invent; (2) an incentive to disclose; (3) an incentive to commercialize, and (4) an
incentive to workaround. The core argument in justifying a patent system is that these incentives
would be lessened or lacking without patents.
(1) Incentive to Invent
As described in Part 3 of this series, without patents, inventors would face a dilemma securing
sufficient capital to exploit their inventions. Under this theory, a potential inventor might not even
risk the cost of invention unless assured exclusive use of the invention, at least for a duration.
There can be considerable costs to the invention process, which often involves repetitious trial &
error, and testing, all of which require facilities, labor, and supplies. Development of new drugs, for
example, cost several million dollars. Even toy inventions can consume tens of thousands of dollars
in the process of perfecting a child's enjoyment. Patents offer a means to recoup such costs.
There are objections to this theory. The patent grant may be too much of an incentive, causing too
many firms to invest in research and development, resulting in duplicate efforts. The result may be
slightly earlier invention, but at a substantially higher overall cost.
Duplicative efforts may, however, lead to distinct alternatives. Consider development of two drugs
for the same disease, but with different side effects. Having different drugs may help patients who
would suffer from the side effects if only one treatment were found, thus offering a choice where
otherwise none may be available.
Another objection is that a patent awards too much to the inventor. After all, invention is as
inevitable as the need; the issue of invention is only one of timing. But, as seen by the inventor's
dilemma, without a patent system, incentive to invent may be so retarded that invention cannot be
considered inevitable in absence of patents. History suggests as much, in times when would-be
inventors were not assured of being able to profit from their inventions.
Menell str 7
Joseph Schumpeter was among the first twentieth-century economists to
recognize
the fundamental importance of technological change in modern capitalist
economies (Schumpeter, 1934, 1942, 1950; Nelson and Winter, 1982, pp. 275-

281; Nelson, 1997). Schumpeters work emphasized three principles:

(1) innovations continually upset established relationships in markets and
organizational structures through a process of creative destruction;
(2) technological innovation provides the opportunity for temporary monopoly
profit, and this linkage explains the rapid economic growth of the Western
economies; and
(3) large monopolistic firms are
the prime source of technological innovation because they are best able to
bear the high costs of technological innovation (Merges, 1988, p. 843).
Although
economists who study innovation generally accept Schumpeters first two
principles, most empirical studies of the relationship between market
structure and research and development expenditures reject the linkage
between monopoly power and disproportionately large investments in
innovation (Scherer and Ross, 1990, pp. 614-660; Kamien and Schwartz, 1982,
pp. 49-104). According to Scherer and Ross (1990, p. 660)
[S]chumpeter was right in asserting that perfect competition has no title to being
establishe as the model of dynamic efficiency. But his less cautious followers were
wrong when they implied that powerful monopolies and tightly knit cartels had any
stronger claim to that title. What is needed for rapid technical progress is a subtle
blend of competition and monopoly, with more emphasis in
general on the former than the latter, and with the role of monopolistic elements
diminishing when rich technological opportunities exist

(2) Incentive to Disclose

Patents require disclose to grant protection. A patent grant offers an incentive to disclose the
workings of an invention, both as a protection to the patentee as to what claim scope the inventor is
entitled to, but also a means for others to benefit from the knowledge surrounding the invention.
The reasoning behind this theory is that trade secret is the alternative to a patent system. Such
secrecy could impede scientific progress, which relies upon exchange of information to avoid
duplicative efforts and curb pursuits of dead-ends.
because patent applications are evaluated in light of the prior art, a firm trailing in a given patent
race has an incentive to disclose its research to the public. The incentive in this case is not the
conventional lure of a possible patent monopoly; the incentive, instead, is the
possibility that by disclosing information the laggard will create prior art that will
in turn narrow or even fully preempt any patent application the leader might ultimately file.
his is attractive from the laggard's perspective, since to whatever extent the strategy is successful,
the laggard will remain free to exploit its own research results instead of being limited by a patent
possibly granted to the race leader89. Of course, disclosures of this sort are unlikely to occur in
settings where the leader and laggard can bargain. in these situations the laggard would simply
threaten to disclose, and then the leader and laggard would reach some sort of private agreement.
For example, in exchange for a promise not to disclose, the laggard might demand from the leader a
favorable licensing agreement with respect to the common invention. Such a bargain could be
attractive to both sides since, unlike public disclosure, a private agreement in no way diminishes the
patent's expected value. So, as long as the parties can agree on how to divide that extra surplus
between them, both the laggard and the leader should prefer private negotiations over public
revelations.
89 Douglas Lichtman, Scott Baker, Kate Kraus, Strategic Disclosure in the Patent System, U Chicago Law &
Economics Olin Working Paper no. 107, 2000, p 3

This leads us to the next tzpe of incentive .

(3) Incentive to Commercialize

The first two incentives focus on the inventor and the invention process. But an invention without
employment is practically no invention at all. For society to benefit from invention, products must
be made and consumed that use the invention. Thus the incentive to commercialize can be
considered the strongest argument for patents.
This theory is based on the principle that how efficient the patent system would be in bringing
together diverse resources such as commercial backing, manufacturing capacity, marketing knowhow, and other skills that the inventor would be unable to handle alone
A patent system provides fixed and public notice of intellectual property, turning a patent into a
commercial commodity. This solves the inventor's dilemma - the surety of a patent grant merits
risking capital for exclusive commercial exploitation.
Without patents, risk runs both ways: on the one hand, a successful product is readily copied, and
the costs of invention cannot be recouped. On the other hand, an excellent invention may not be
commercialized because it might fail in the marketplace, for whatever reason.
A patent allows an invention itself to be assessed as a commercial entity. In this regard, a patent is
like a gold claim. There may be other claims (substitution), but the scope of a patent's claims may
be assessed. Such assessment potential would not exist without patents.
Ironically, as the incentive to commercialize is strongest theory justifying patents, it is also the one
for which patents are most commonly criticized - that a patent is a tradable commodity, with the
potential of being a bonanza to its holder. The laughable scourging of patent trolls belies ignorance
of both economics and history. Of course patents are valuable. And so, those political societies with
functioning patent systems have been, and are, the most technologically advanced, and the most
prosperous. Prosperity and technological advancement cannot be separated, as the former follows
the latter. That there are specialists in monetizing patents, i.e., patent trolls, is as natural as having
different types of bankers, lawyers, or doctors, who specialize in their respective areas of expertise.
(4) Incentive to Workaround
The value of a patent grant inspires developing workarounds - substitutes. Hence, the incentive to
design around a patent is a corollary to the incentive to commercialize.
A patent taunts a competitor to circumvent infringement by developing substitutes, which
themselves may be patentable. The incentive to workaround thus catalyzes innovation and
strengthens the patent system, as companies race to develop patent portfolios, driven for defensive
reasons, as statements of company technical prowess, and as accumulation of wealth, as patents are
themselves valuable commodities.
The incentive to workaround levels the patent playing field. Though it happens regularly, prima
facie it seems rather silly for a company to sue another company for patent infringement when it
could readily suffer countersuit - better to negotiate a settlement than sue. Outright stupidity aside,
that companies with patent portfolios sue each other instead of negotiating speaks of either: 1) an
inability to valuate patent portfolios, or 2) an inability or unwillingness to negotiate. It quite
common for a patent holder to be forced to litigate because an infringer refuses to negotiate. This
can be the case when the infringer has no countersuit potential, and foolishly thinks that it has
nothing to lose by denial.

kritika teorija podsticaja

the incentive model provides at best a partial justification for the

patent system.
scholars have begun work on the project of constructing nonincentive
models to justify the granting of patents.
Clarisa Long90, for example, argues that firms patent in order to
signal information to markets. For her, the patent system, wholly
apart from any invention or innovation it may induce, serves the
important function of lowering information costs to firms.
It provides a firm with a convincing means of signaling to capital
markets the strength of its R & D capacity and human capital, and of
attracting licensing opportunities
Other scholars, working roughly in what might be called the New
Institutional Economics91,have emphasized how patents enable
trading in information assets, stimulating a thicker market in
technological information. Additionally, the early work of Edmund
Kitch92 goes beyond incentive theories by emphasizing the public cost
savings of early patent grants

za i protiv patenta
ekonomski razlozi i patent kao prirodno i moralno pravo (str 6. clanka)

author is entitled to a property right in her creation simply because she is the author, and not because it is in the public's
interest. In fact, it may even conflict with the public's interest to award a property right (because use and
dissemination may be curtailed), but the author's claim is strong enough to defeat the claims of interest of others.
1) "but for" argument : basic approach holds that "but for" the
creator, there would be no work. Hence, to award a property right to the author deprives no one else of anything that
they otherwise would have had. Henry Sidgwick espoused this view in "The Principles of Political Economy," arguing

90 Clarisa Long, Patent Signals

91 Robert Merges, Intellectual Property Rights and the New Institutional
Economics, (2000)
(Property rights, firms, institutions, governments: all of these are the subject of
extensive study by social scientists operating within the NIE [New Institutional
Economics] framework. It is time to integrate the study of intelectual propertz
rights into this framework.)
92 Edmund Kitch, The Nature and Function of the Patent System (1977).
(Kitch assumes that patents will generate both rent seeking and innovation, so he
has one
foot firmly in the incentive theory tradition, but his focus on how the patent
registration system
deters costly duplicative races to innovate and facilitates some transactions
between firms
foreshadows more recent non-incentive theories.)

that, "[i]t can hardly be an interference with A's natural liberty to exclude him, in the interest of B, from the gratuitous
use of utilities which he could not possibly have enjoyed except as a result of B's labour
2) utroseni trud : as a labor/effort argument. This line of reasoning is in essence a derivation of John Locke's
elaboration of a natural right to property in his Second Treatise on Government. [FN41] Michelman has argued along
"Lockeian" lines that "whenever one mingles his effort with the raw stuff of the world, any resulting product ought-simply ought--to be his." [FN42] Additionally, Adam Smith has strongly asserted the property right of an individual to
his labor: "The property which every man has in his own labour, as it is the *315 original foundation of all other
property, so it is the most sacred and inviolable."

John Stuart Mill (1862) concurred that patent monopolies were

justified,arguingthat a temporary exclusive privilege was preferable to
general governmental awards on the ground that it avoided discretion and
ensured that the reward to the inventor was proportional to the usefulness to
consumers of the invention. Pigou (1924) elaborated the basic framework of
modern welfare
economics, developing the concept of public goods as instances in which
marginal private net product falls short of marginal net social product
because incidental services are performed to third parties from whom it is
technic ally difficult to exact payment. This appropriability problem figured
directly in Pigous assessment of intellectual property:
The patent laws aim, in effect, at bringing marginal private net product and
marginal social net product more closely together. By offering the prospect of
reward for certain types of invention they do not, indeed, appreciably stimulate
inventive activity, which is for the most part, spontaneous, but they do direct it
into channels of general usefulness. (p. 151)

SISTEMI PATENATA
WIPO (nacionalni patenti) PCT
EPO (evropski patent) EPC

At present93, the European patent system is undergoing a series of major reforms centered on
the idea of unifying
(or rather defragmenting) the European patent system. These reforms are currently moving
ahead briskly -in December 2012 the European Parliament approved the so-called EU unitary
patent package. One major reason for reforming
the current enforcement system was the existence of some duplicative, and even in some
cases contradictory, patent
enforcement decisions across jurisdictions within Europe.Once ratified by the individual
member states, the agreement will create a European patent with unitary effect (or unitary
patent)in all jurisdictions which have acceded to the measure
This will allow patent protection for all participating EU Member Stateson the basis of a single
applicationand validation,
i.e.,there will no longer be a need to separately validate the patentonce granted by the
European Patent Office (EPO) in each state via the payment of validation fees at the national
patent offices

The unitary patent complements the existing patent system in Europe, a system which
allows the co-existence of patents granted by national patent offices as well as patents
granted by the EPO, which can be validated in one or more countries which are signatories to
93 Katrin Cremers, Max Ernicke, Fabian Gaessler, Patent Litigation in Europe,

the European Patent Convention (EPC).

In contrast to European Patents (EP) granted by the EPO which then are validated in the
member states of the EPC where they aresubject to national law (Art. 2(2) EPCand Art.64(1)
EPC),the unitary patent willbesubject to the same legal conditions in all member states. Toward
this aim, an integral part of the new package is the creation of the Unified Patent Court(UPC).
The UPC will have exclusive jurisdiction with respect to unitary
patents as well as (after a transitional period) European (i.e. EPO-granted) patents designating
one or more member states. The court consists of a central division as
well as local and regional divisions. The agreement places the seat of the UPC's central
division in Paris. Specialized units of the UPCs central division will be set up in London
(chemical and pharmaceutical patents) and Munich (mechanical engineering).
Generally, claimants will bring actions for revocation before the central division,
and will bring actions for infringement before a local/regional division in a member state in
which the infringement has occurred, or where the defendant is domiciled. One
aspect of the reform that marks a considerable change for some jurisdictions is that the
system allows for a choice between bifurcation and an integrated process for hearing
infringement and invaliditycases. Currently, bifurcation,i.e.,the separationof infringement and
validity claims into separate court actions, is used in few European countries. By giving local or
regional courtsof the new UPC the discretion to refer counterclaims for revocation to the central
division, either bifurcation or integrated treatment of cases may be used.

pre unitarnog patenta

The European patent system, from a European Unionperspective, is actually a sum of 27 national
patent systems. The only centralized aspect corresponds to the granting procedure, composed
of performing search reports, ensuring publications,performing substantive examinations and
processing oppositions, which are all performed by the European Patent Office (EPO). However,
key dimensions are performed at the national level, including the filing of priority applications
(before the submission at
the EPO) and the enforcement (validations, translations, renewals, litigation) of patents after
their grant by the EPO
This is a simplified picture of the process, which in reality may be more complex, as various routes
can be taken to be protected in European countries (cf. Guellec and van Pottelsberghe (2007)
for a detailed description of the patenting process and the routes to Europe, especially Chapter
1 and Chapter 6). It must also be kept in mind that the EPO grants patents on behalf of 35
countries, of which 8 are not member of the European Union.
This fragmentation reduces the effectiveness (actual and perceived) of the European patent system.
This is due to several factors that are the direct consequence of a fragmented system, and
which do not occur in other large economies like Japan or the USA. The most important
drawbacks of the European patent system are:
Its prohibitive costs
The economic incongruities induced by the fragmentation

- izmene u evropskom sistemu ( unitarni patent i ujedinjeni patentni sud)

americki sitem (i izmene u poslednjih 10 godina)
In September 2011, President Obama signed the America Invents Act, the most
significant
reform to the patent system since the 1950s.
The America Invents Act (AIA) made major changes in how the U.S. Patent and
TrademarkOffice (PTO) reviews patent applications, grantspatents, and
considers post-grant challenges to issued patents94. These changes were
94The law switched the U.S. rights to a patent from the previous "first-to-invent" system to a "first inventor-to-file"
system for patent applications filed on or after March 16, 2013. The law also expanded the definition of prior art used in
determining patentability. Actions and prior art that bar patentability under the Act include public use, sales,

intended to improve patent quality and shorten patent pendency, two goals
with widespread support.

? afrika (ARIPO)
razlike izmedju Evropskog i US sistema (odlican clanak preuzmi u potpunosti, takodje
ovaj)
KONVENCIJE I ZAKONI
-Pariska konvencija o zatiti industrijske svojine 1883.
-TRIPS
-Evropska konencija o patentima (EPC)
Patent convention treaty (PCT)
KOUZOVA TEOREMA I PATENTNO PRAVO
One of the most famous essays in economics is Ronald Coases The Problem of Social Cost. Its
key argument, which was later dubbed the Coase Theorem by George Stigler, says that in a world
with zero transaction costs, the initial allocation of rights doesnt matter because people will
negotiate toward an allocation of rights that maximizes total social utility.
Coase illustrates this principle with an example involving a farmer and a rancher who occupy
adjacent parcels. The ranchers cattle sometimes stray onto the farmers land and damage his crops.
Coases claim is that it doesnt matter whether the law holds the rancher liable for the damage to the
farmers crops or not: either way, the rancher and farmer will reach a bargain that maximizes the
joint value of the rancher and farmers output
The argument proceeds as follows. If the law requires the rancher to pay the farmer compensation,
then the rancher will only expand his herd if the increased profits from doing so exceed the
compensation he will be forced to pay the farmer as a result. Conversely, if the law does not require
the rancher to compensate the farmer, then if the farmers crops are worth more than the ranchers
cattle, the farmer will pay the rancher not to expand the size of his herd. Coases theorem says that
the size of the herdand hence, the total value of the goods produced by the farmer and rancher
combinedwill be the same under either legal regime, and that the amount produced will maximize
social welfare.
In subsequent writing, Coase has emphasized that his point was not that this was a realistic model
for how the world actually worked, but rather that economists need to take more seriously the
importance of transaction costs in economic analysis. Many free-market scholars in the law-andeconomics tradition employ Coases argument in making their case for reducing transaction costs
and thereby increasing market efficiency.

publications, and other disclosures available to the public anywhere in the world as of the filing date, other than
publications by the inventor within one year of filing (inventor's "publication-conditioned grace period"), whether or not
a third party also files a patent application. The law also notably expanded prior art to include foreign offers for sale and
public uses.[3] Applicants that do not publish their inventions prior to filing receive no grace period.
The Act revised and expanded post-grant opposition procedures. The Act retained existing ex parte reexamination;[6]
added preissuance submissions by third parties;[7] expanded inter partes reexamination, which was renamed inter
partes review;[8] and added post-grant review.[9]

A version of this argument pops up pretty frequently in discussions of patent policy the key
assumption seems to be that greater liquidity (promet patenata) gets us closer to that zerotransaction-cost world in which patents are allocated to their highest-value use (Merges 1994).
The fundamental problem is that it forgets that a patent is not a productive asset like a truck or a
factory. A liquid truck market is a good thing because the highest-valued use of a truck will likely
be the use that gets the most valuable cargo to consumers. In contrast, a patent by itself produces
nothing of value. It is not an input to any productive process. It simply entitles its holder to sue
those who enter a particular market. There is, therefore, no a priori reason to think that a more
liquid market for patents will enhance social welfare. To the contrary, patents are valuable precisely
because they allow firms to increase their profits by doing things that economists generally regard
as economically damaging: litigate and limit competition.
Indeed, in some industries, high transaction costs are probably the only thing preventing patents
from bringing business grinding to a halt. In the software industry, for example, there is a large
number of broad, vague patents that are routinely infringed by numerous software firms. The only
reason we still have a relatively healthy software industry is that its more work than its worth to
find and sue all the people who are infringingwhich, to a first approximation, is everyone. This is
not a process we want to make more efficient.
This business model consist of amassing such an imposing packet thicket that, simply as a
statistical matter, its probable that any given technology company infringes a large number of its
patents. A good example of this type of company would be Intellectual Ventures95. Once IV has a
suitably imposing patent thicket, it benefits from a twisted kind of economy of scale. It no longer
has to bother with cataloging the patents any given company infringes; its enough to identify a few
representative examples and then gesture in the general direction of its menacing 27,000-patent
portfolio. This will induce most companies to pay up without a fight, leaving IV with plenty of
resources to make examples of the few that resist.
This reduces transaction costs in a sense, but its a mistake to assume this makes it socially
beneficial. Coases theorem is fundamentally about two productive parties negotiating toward an
arrangement that maximizes their joint product. Its not about a situation in which one firm is in the
business of producing wealth and the other is in the business of using the threat of lawsuits to
extract it from the first party .
TEORIJA IGARA I PATENTNO PRAVO
Znanje je ocigledan primer cistog96 javnog dobra (Stigliz 2008. str. 1699) . Kao takvo, ono mora
ispuniti simultano dva uslova: nepostojanje rivaliteta u potrosnji i nemogucnost iskljucenja
korisnika. Osnovni problem javnih dobara je nedostatak podsticaja njihove proizvodnje. Kako je
nemoguce iskljuiti korisnika iz potronje javnog dobra, svako kome je potrebnog ga moe koristiti,
ali niko nema individualni podsticaj da ga proizvede, iako bi drutvena korist od proizvodnje istog
bila vea od individualnog gubitka proizvoaa. Ova situacija je poznata kao problem kolektivnog
delovanja97 .

95private company notable for being one of the top-five owners of U.S. patents, as of 2011.[1] Its business model has a
focus on buying patents and aggregating them into a large patent portfolio and licensing these patents to third parties.
Publicly, it states that a major goal is to assist small inventors against corporations. In practice, the vast majority of IV's
revenue comes from buying patents,[2] aggregating these patents into a single portfolio spanning many disparate
technologies and tying these patents together for license to other companies under the threat of litigation, or filing
lawsuits for infringement of patents, a controversial practice known as patent trolling.
96 Begovic Labus Jovanovic , Ekonomija za pravnike, Pravni Fakultet, Beograd 2008. str. 300
97 "collective action problem" describes the situation in which multiple individuals would all benefit from a certain

The basic structure of collective action problems is boiled down in a game theory98 thought
experiment called the Prisoners Dilemma. In this thought experiment, two bank robbers have been
arrested by the police and detained in separate cells where they cannot communicate. The police offer
the same deal to both bank robbers; confess where you hid the money and you get a light sentence,
while your partner-in-crime goes to jail for life if he doesnt confess. However, if neither bank robber
confesses then they both go free, and also get to split their ill-gotten gains. The question is: should you
confess, or cooperate?

The Prisoners Dilemma boils down a collective action problem to its essential elements. If both
bank robbers cooperate then they both go free and get a sack of cash, which is the best possible
outcome for them both. But for each individual player, cooperating is very risky because it could
potentially land that player in jail if the other player confesses. Both bank robbers know that the
other could confess. If both robbers are smart, they should know that their co-conspirator also
knows it is in his rational self-interest to confess, especially so if he expects the other to confess. As
a result, the rationally self-interested player of this game should choose to confess. But confessing
rules out the utility-maximizing outcome of both bank robbers walking off with the loot. Rational
self-interest by both robbers, perversely, results in a worse outcome for both than if both robbers
irrationally risked cooperating.
There are essentially two strategic archetypes for dealing with collective action problems. The first
is the direct competitive strategy to simply maximize the individuals immediate expected value
(i.e. confess; receive light sentence and avoid jail). The other is a utility-maximizing cooperative
strategy that does not immediately maximize the individuals benefit, but leads to a superior
outcome for every individual (i.e. cooperate; both go free with loot) if the other player also
cooperates. Neither strategy is correct, but most people will tend to favor one strategy in a given
context.
U pogledu patenata teorija igara se moye primeniti as a starting point in the hypothetical
negotiation central to a reasonable royalty calculation in the patent damages context
game theory approach asks whether a party to a negotiation would benefit from changing its strategy,
assuming that the other party to the negotiation will maintain its strategy. A solution is found where
each party, taking into account the decision of the other, would choose not to alter its position.

Suppose entity A is developing a new product. A has determined that it can get a $25 per unit profit
on the new product, but also that the product infringes entity Bs patent. If A were to design around
Bs patent, As per unit profit would drop to $5. Suppose B already sells a competing product that
has a profit margin of only $15 per unit. Under Nash bargaining theory, A would be willing to pay a
royalty up to 20$ per unit, because the royalty would be cheaper than a design-around. B would be
willing to accept any royalty over $15 per unit, because the royalty would exceed the profit B would
otherwise have made on the lost sale. Theoretically, if the parties had equal bargaining power, the
resulting royalty would be $17.50 per unit, mid-way between As $20 max and Bs $15 minimum.
Of course, reality is not so simple: uncertainties abound, true benefits and costs may be difficult to
value, and parties rarely have equal bargaining power. Accordingly, application of Nash bargaining
in the context of actual litigation requires the thorough assessment and application of case-specific
facts.
Why do individual incentives sabotage production of public goods?
Takeaway points:
1. A is a large-scale version of the prisoner's dilemma.

action, but has an associated cost making it implausible that any one individual can or will undertake and solve it
alone.
98 Cooter Ulen , Introduction to law and economics , (5th ed). , 2007. str. 38

2. No one wants to produce the public good because it is costly and the benefits go to everyone.
3. Thus, individuals free ride--they do not produce the good in the hope that someone else will.
4. Ultimately, parties are considerably worse off than if they could credibly agree to produce the good despite its
costs.

PATENTNA TRKA (trka da se bude prvi koji ce patentirati inovaciju)

sta je patentna trka (Landes Posner 2003 str. 300,301)
za i protiv patentnih trka
DRUSTVENA KORIST I STETA OD PATENTA
-- veza izmedju konkurencije i inovacije Belleflame 2010
uticaj nagodbi na konkurenciju (Strowell 2013)

-- pravila kojima se smanjuje drustvena steta od patenata (Landes Posner 2003 str. 302)
-- da li je drustveni trosak od monopola koji patent stvara opravdan (Landes Posner 2003 str.
310)
-- uticaj patentne zastite na drustveno blagostanje (ekonomski rad dosta matematike) (Wang
Mukherjee 2015 str. 9)
povecaj drustvenog blagostanja doyvoljavanjem runner-up patenata (Henry 2014 str. 16)
EFIKASNOST PATENATA U PROMOVISANJU INOVACIJA
-problem kumulativnih i fragmentisanih patenata
-primer Nemacke industrije vestackih boja sa kraja 19. veka (isti iyvor kao prethodno)

EFIKASNOST PATENATA U PROMOVISANJU JAVNOSTI PODATAKA

-problem privatne vrednosti patenta i drustvene vrednosti javnosti podataka
VREDNOST PATENATA U ODNOSU NA VREDNOST PRONALAZAKA IZA PATENTA
- Harhoff - value of patent rights DRAVNE SUBVENCIJE I PATENTI
Bayh-Dole act (1980)
(Stigliz 2008 str 1697.)
Our innovation system rests on foundations of basic research,
and most basic research occurs within academia and governmentsponsored
research laboratories. Monetary returns are only a small
part of what motivates these researchers. Thus, the basic framework
of what induces people to engage in research is really not reflected in
the intellectual property regime. Obviously, research has to be
financed. It takes resources, so the question is not just how we
motivate research but also how we finance it. As I shall comment

below, financing research through monopoly profits may be neither

the most efficient nor the most equitable way of doing so.
The key issue is the role of the patent system, or the intellectual
property regime more broadly, within the economys innovation

VRSTE PATENATA
softverski patenti
farmaceutski patenti
biljne i yivotinjske vrste (poredjenje US i EU sistema zastite patenata na slucaju Monsanto
(Strowell 2011) )
ANALIZA (pozitivni i negativni efekti)
patents support the market for inventions in several important ways:
(1) by increasing transaction efficiencies and stimulating competition;
(2) by allowing owners to control how inventions are turned into innovations and guiding incentives
for invention and innovation; and
(3) by promoting the financing of invention and innovation.
Yet, for many academics, the patent system is a failure (Bessen and Meurer, 2008), in a
crisis (Burk and Lemley, 2009), and a major wound that should be abolished (Boldrin and
Levin, 2013, p. 18)
-dobre strane
Patents Can Promote New Discoveries
By endowing discoverers with property rights over the fruits of their efforts, patents affect the incentive to innovate and are likely to
increase the flow of innovations. This increase is presumably desirable, given that otherwise the market system may provide too
little new knowledge. But by giving the patentee exclusive rights on the exploitation of a unique economic good that is still non-rival
in consumption, a patent creates a monopoly situation that adversely affects the efficient use of new knowledge.
Nordhaus99 (1969) and Scherer100 (1972) provided an early formalization of this fundamental trade-off between benefits and
costs of the patent system. For a simpler illustration, consider the potential market for a new product, say, a new pharmaceutical.
If p denotes the price charged to consumers, the latent demand D( p) is likely to display a choke price p such that D( p) 0 for all
p p (there exists a prohibitive price that drives demand to zero). Furthermore, this latent demand is downward sloping, i.e.,
D( p) 0 for all 0 p p (a lower price makes the drug attractive to an increasing number of potential users). Suppose that it takes a
total cost F to develop this drug, including the testing required for approval, but once this knowledge is available, it takes
only a unit cost c to actually manufacture and sell the drug. This situation is represented in Figure 1, where demand applies for a
specific period (a year, say).
`Given some qualifications, area S Lrepresents the per-period social surplus, i.e., the monetary
benefits that would accrue to society if this new product were developed (and produced at the efficient level qC ). If the present
discounted value of the current and future stream of such benefits exceeds the research and development (R&D) cost F , then net
benefits are possible for society from the introduction of the new drug. But clearly, absent intellectual
property rights, no individual has an incentive to incur the cost F : the ability of competitors to readily copy the innovation would
drive the market price to its unit production costs c , and the cost F cannot be recouped. But with a patent, the innovator becomes a
monopolist in the market for the new drug and can profit by pricing the drug optimally at pM , where c pM p . The innovators
per-period profits are represented by the area in Figure 1. If the present discounted value of such profits, over the life of the patent,
exceeds the R&D cost F ,then a sufficient incentive exists for this innovation to be brought about, and society as a whole enjoys the
benefits S for the duration of the patent, and benefits S Lthereafter. But note that, during the life of the patent, the
innovation is produced at an inefficiently low level from a social point of view (i.e., qM qC ).101 This brings to the fore a
fundamental trade-off of the patent system: the balancing between the benefits of encouraging additional innovative activities and the

99Nordhaus, W.D. 1969. Inventions, Growth and Welfare: A Theoretical Treatment of Technological
Change. Cambridge, MA: MIT Press.
100Scherer, F.M. 1972. Nordhaus Theory of Optimal Patent Life: A Geometric Reinterpretation. American
Economic Review 62: 422-27
101Here, S measures the consumer surplus while the patent is active, and S Lis the consumer
surplus after the patent has expired. Thus, L is the loss to society from underutilizing the innovation
during the life of the patent.

costs of forgoing the competitive provision of some goods and services. Ex post, that is, given that an innovation is available, a
monopoly is bad from societys point of view because it restricts uses of the new
product and/or process (relative to the competitive provision of the innovation). Earlier
economic analysis focused extensively on this issue and questioned the economic desirability
of the patent system (Machlup and Penrose 1950). But the profit opportunity
created by the monopolistic control of the innovation can be a powerful ex ante incentive,
presumably enough to motivate R&D investments that would otherwise be neglected.

Patents Can Help the Dissemination of Knowledge

An additional benefit of patents is related to the disclosure requirement. In most
countries, patents are disclosed 18 months after the filing date or earlier. The importance
of this feature is predicated on the fact that, absent patents, inventors can rely on trade
secrets to protect their discoveries (Friedman, Landes, and Posner 102 1991). By providing an
incentive for disclosure, patents are held to contribute to a desirable dissemination of
scientific and technical information, allowing other inventors to avoid duplicating existing
discoveries and making it easier to develop further innovations that build on the
known state of the arts (possibly by inventing around a patent as well). It is useful to
note that the disclosure argument offers an economic role for patents, even for inventions
that have already taken place, and as such it is quite distinct from the incentive role of
patents due to the increased appropriability of R&D output.
Patents Can Avoid Wasteful Innovation Efforts
As the arguments on the disclosure property of patents suggest, an important and
beneficial effect of new knowledge is that it makes possible further innovations and
discoveries. Discoveries from basic research are often of this sort, at times opening up
entire new fields of research. It can be argued that patenting of such seminal inventions
can have useful social payoffs. This rationale is articulated in the so-called prospect
theory of patents, originated by Kitch103 (1977). It relies on the notion that broad, early
property rights on key inventions allow an orderly pursuit of follow-up innovations and
reduce wasteful innovation races. An analogy can be made to the practice of granting
mineral claims on land where no discovery has yet been made, to avoid a wasteful mining
of the prospect. Whereas patents in such cases can clearly have positive efficiency
effects, it is also easy to see that broad, early patents can adversely affect further research
especially when the original discovery has applicability in many uses. If the original
inventor does not have a comparative research advantage or interest in pursuing some
research directions, and licensing of the patented innovation to third parties is problematic

102Friedman, D.D., W.M. Landes, and R.A. Posner. 1991. Some Economics of Trade Secret Law. Journal
of Economic Perspectives 5: 61-72
103Kitch, E.W. 1977. The Nature and Function of the Patent System. Journal of Law and Economics
20: 265-90

(perhaps because of excessive transaction costs), patenting can have adverse effects
on the flow of further innovations. We will return to related issues later when discussing
the appropriate breadth of patents.

Patents Can Help Technology Transfer and Commercialization

Whereas the difficulty of licensing may reduce the desirability of exceedingly broad
property rights, patents can actually play a critical role in licensing and, more generally,
in the dissemination of new knowledge. A key insight here is due to Arrow 104 (1962), who
stressed the information nature of new knowledge and noted a peculiar property in the
determination of demand for information. Specifically, to put a value on information a
would-be purchaser needs to have the information, but at that point, if the seller does not
have property rights on the information, the would-be buyer has no more incentive to pay
for it. Patents, therefore, can play a crucial role in reducing transaction costs of licensing
innovation and, more generally, in technology transfer.
A related but distinct role for patents as instruments of technology transfer has been
articulated to rationalize the Patent and Trademark Laws Amendments of 1980, commonly
known as the Bayh-Dole Act. The main elements of this reform were to allow
universities and other entities to patent, retain title to, and commercialize federally funded
inventions; and, to allow federal agencies to grant exclusive licensing for their inventions.
Based on the view that the main role of patents is to provide incentives for innovation
that would not occur otherwise, it would be difficult to make an economic case for public
institutions patenting discoveries that already have been publicly funded and accomplished.
Likewise, the role of patents in transferring information would be irrelevant in
this case, because public research institutions have little use for trade secrets, and because
it is difficult to improve on the dissemination of information achieved by simply publishing
a discovery. But the presumption here is that many discoveries produced by publicly
funded R&D, and in the public domain, may not be used in technological developments
because, without an exclusive license backed up by patent rights, firms would not be
interested in expensive development work required to transform an invention into a new
product. Little evidence exists to corroborate this belief for the case of university patenting
(Mowery et al. 2001). But more generally, when it is difficult to assert property rights
on development work, a patent on underlying innovations obviously may aid developmentD:\law\Master rad\PATENTI ek analiza
(master rad)\NOVO LAPTOP\Douglas - A Beneficial Monopol Jeremy Bentham on Monopolies.pdf
and commercialization of new technologies.

lose strane patenata

(restriktivnost , trka za patentnu prijavu (Landes Posner 2003 str. 300,301), str. 10 i dalje)
(Dam 1993 str. 3.) 3 problema (monopol, rent-seeking, prohibition-of-future-innovation)
(Lopez 2009 str. 2 itd) problem appropriability
The tradeoff between innovation development and innovation diffusion has
been widely studied in the technology change and industry performance
literature. This tradeoff arises from the fact that what we do to prevent free
availability of existing innovative discoveries to all producers, although
beneficial from an ex-post efficiency standpoint, will fail to provide the ex-ante
incentives for further innovation. Such a dilemma is called the appropriability
problem
There is widespread agreement that in a perfect competition setting, that is, a situation in
which, among other assumptions, no producer has market power, there is no product differentiation and all firms have immediate and perfect access to the same technologies, the rate of
innovation in a market economy would be very low.
The problem was first stated in the early 19th century by Jeremy Bentham in his Manual of Political
Economy 105and was later forcefully argued by Joseph Schumpeter (1942).

104Arrow, K.J. 1962. Economic Welfare and the Allocation of Resources for Inventions. In The Rate and
Direction of Inventive Activity: Economic and Social Factors. Edited by R.R. Nelson. Princeton, NJ:
Princeton University Press.
105Douglas 2009 - A Beneficial Monopol Jeremy Bentham on Monopolies :

Both stressed the need for entrepreneurs to expect supernormal profits by enjoying some kind of
monopolistic power over their inventions. That expectation would encourage them to devote time and
money to innovation activities.
As was highlighted in the seminal papers by Nelson (1959) and Arrow (1962), the main problem is one of
appropriability and relates to the semi-public good characteristics of knowledge, for which exclusion is
feasible but rarely or never perfect. If inventors or innovators could not rely on some means to protect the
knowledge they create, they would be at a disadvantage vis vis rivals who did not incur the often very
high fixed costs of creating that knowledge. Such
rivals would presumably be able to imitate it at a much lower cost or, in extreme cases, at zero cost.

TRAJANJE/IRINA/KUMULATIVNOST

PATENTA

ubaci kao uvod (Scotchmer 2011 - prezentacija)

the patent system entails a fundamental trade-off
inventors are given a monopoly position (which entails inefficiencies) in order to provide
them with incentives to innovate (which carries economic benefits. In other words, the
dynamic efficiency of encouraging invention leads to static inefficiency created by a
monopolistic situation. Given that, a natural question to ask is, what is the optimal degree
of patent protection? The degree of market power provided by a patent essentially depends
on three elements: the length (duration) of the patent, the breadth of the patent, and the
height (KUMULATIVNI IZUMI)of the patent.
Menell str 11

Numerous scholars have examined the implications of varying the scope (or
breadth) of intellectual property protection. Gilbert and Shapiro (1990) show
that the optimal breadth of patents should be extremely narrow and the
optimal length infinite where wider breadth increases deadweight loss due to
consumers substituting out of the product class. Klemperer (1990) finds that
broad
patents of short duration dominate long-lived, narrow patents where
substitution to alternative products (within the same product class) is the
main source of deadweight loss. Where potential competitors have a choice
between waiting for a patent to expire and inventing around the patent,
Gallini (1992) demonstrates that optimal patent scope should be broader
Bentham describes patents as a particularly advantageous privilege granted by law, since that the bene
fit gained by a patent is exactly proportioned to the merit of the inventionThe reward an inventor gets from a patent is the return she
receives from the invention in the market, either through sales of theinvention itself or by licensing the patent to others to use for
their ownproducts. A more useful invention will give the inventor a larger economic return than a less useful one. To m
aximise their reward, inventors will seek to createinventions that they believe the market will find useful, and so society benefits
overall from the encouragement for inventors to direct their talents towards creating useful inventions.
Patent protection also acts as an incentive. The opportunity to gain patent protection is an incentive for potential inventors to invest the labour
andresources necessary to implement their ideas and bring them onto the market. Without the protection of a patent,others are free to
copy the invention and exploit it themselves. The copier gains the benefits of the invention without also bearing the cost of developing
it,giving her a competitive advantage over the original inventor. In such a case, no one would want to be the original inventor (as she
has to bear the costs of developing the invention) without a way of preventing others from exploiting her workafter it is completed and
available on the market.
Since patents prevent others from exploiting ones invention, they give an incentive for being the original
inventor, and so encourage the creation of new inventions.
The fixed period of patent protection (14 years in Benthams time)goes some way in negating the monopoly harms from patents. The
limited period of time to exploit the invention means that the inventor must make the most of that time before competitors can copy
her invention. If the patent holder charges more than the market will accept for her invention, or the resulting product is badly made
(Benthams second and third monopoly harms), no one will purchase it and will instead seek out alternatives to it if any exist.
Benthams fifth harm would be lessened by the incentive the patent holder has to produce as many of the invention as possible while
she has a patent on it. Even so, the market is still likely to be undersupplied with the invention compared to a market where anyone
could build and sell it. The fourth harm of restrictions on who may supply the invention depends on whether alternatives to that
invention exist. If the invention is so revolutionary that no alternatives to it exist, it encourages other inventors to create similar (but
different) inventions to perform the same task, since the original invention demonstrates that there is amarket for that type of
invention. While there would still be a period where the original patented invention would have no substitutes (giving the original
inventor a first-move advantage), the success (or otherwise) it enjoys in the market may encourage others to create and supply
alternatives.

(and duration shorter) in order to discourage prospective competitors from

engaging
in wasteful efforts to invent around patented inventions. Lerner (1994a)
presents empirical evidence showing the importance of patent scope.
A) TRAJANJE
Norhaus106 was primarily concerned with determining the optimal duration of a patent, but his
analysis can be applied more generally. Each increase in the duration or strength of patents, he
observed, stimulates an increase in inventive activity. The resultant gains to social welfare include
the discounted present value of the consumer surplus and producer surplus associated with the
distribution of the intellectual products whose creation is thereby induced. At the same time,
however, social welfare is reduced by such things as larger administrative costs and larger
deadweight losses associated with the higher prices of intellectual products that would have been
created even in the absence of the enhanced incentive. Ideally, patent duration or strength should be
increased up to the point where the marginal benefits equal the marginal costs
The length of the patent determines the duration of monopoly power that a patentee
can expect and thus affects the static inefficiency as well as the incentive role of patents.
The benefit to the innovator increases with the length of the patent. But from societys
point of view, too short a patent may dissuade research, whereas a patent that is too long
may give excessive rent to the owner and may block further improvement.
Consider first a given innovation, such as the new product case illustrated in Figure 1,
where denotes the per-period profit accruing to the patentee. Here, the optimal duration
of the patent should be determined so as to recoup exactly the R&D expenditure
necessary to bring about the innovation. Then, for a discount rate r , and given a one-time
research cost F of bringing about the innovation, the optimal patent length T* would
solve
*

0
T ertdt F . A more realistic model would allow the size of the innovation to
vary with the investment in R&D, which in turn depends on the length of the patent. For
simplicity, think of a process innovation that leads to a reduction in the unit cost of
producing a good. The optimal patent length must now balance the social gain from the
innovation due to a larger reduction in cost and the social loss associated with a longer
delay in the exploitation of the innovation by rival firms. This point was originally made
by Nordhaus (1969), who found that an optimal patent must be of finite duration but
strictly positive, as shown later by Scherer (1972).
In these earlier models, it was assumed that R&D investment always leads to an innovation
the size of which depends on the investment undertaken and where an R&D
project necessarily succeeds. This is a restrictive assumption that does not take into
account competition at the R&D level. The introduction of such competition can, under
certain circumstances, increase the optimal length. Indeed, the expected payoff of each
competitor is reduced; therefore, for a given number of competitors, an increase in the
patent duration may be the only way to reestablish the R&D incentive (Kamien and
Schwartz 1974). But in other circumstances, competition can reduce the required patent
length, as is the case in DeBrocks (1985) model where it is assumed that competition
takes place at the research level and not at the development level where patent holders
can develop their innovation without threat of competition. Here, R&D investment at the
development stage is the same as without competition, but competition at the research
level leads to useless duplication of costs for firms that cannot get a patent, and that in
turn reduces the social surplus
The industrial context may play an important role in the determination of the optimal
patent length. For instance, in markets where demand is very elastic (i.e., quantity demanded
is very responsive to a small change in price), monopolistic pricing of the
innovation can lead to large ex post welfare losses(i.e., a large L in Figure 1).Hence, in
such markets a shorter patent length would be warranted. The optimal patent length is
also likely to be innovation-specific, and thus the one-size-fits-all patent length (20 years

106William D. Nordhaus, Invention, Growth, and Welfare: A Theoretical Treatment of Technological Change
(Cambridge: M.I.T. Press, 1969)

from filing) is sub-optimal. Roughly speaking, a uniform patent length provides too much
protection for easy innovations (those that would have been pursued even with a
shorter patent period), thereby creating unnecessary efficiency losses, whereas it provides
too little protection for difficult innovations, such that some research projects that are
socially desirable do not get undertaken

B) OBIM PATENTA
Whereas the length of the patent protection characterizes the duration of the monopoly
power, the scope of a patent bears on the intensity of the induced monopoly power
(Merges and Nelson 1990 + citljivija verzija html). The breadth of a patent defines the range of
products that are
encompassed by the claims of the patent and therefore protects the patent holder against
potential imitators. In general, the less specific the claims of the patent are, the broader
the patent. The height of a patent, on the other hand, confers protection against improvements
or applications that are easy or trivial. The value of a patent to a firm depends on
how effective its protection is in these two dimensions (breadth and height), in addition to
being related monotonically to the patent length.
Unlike its maximum length, which is fixed by law, patent breadth is, to a certain
extent, endogenous. Patent breadth depends on the claims put forth by the patentee and
also is a feature over which the patent office has some discretion (at the examination
stage). Clearly, a reduction in the breadth of patents would induce more competition
(e.g., imitation), which benefits consumers. But too narrow a patent reduces the incentive
to innovate. What is the optimal breadth for patents? Economic analysis suggests two
kinds of results in this setting. Narrow and long patents can be found to be optimal
because broad patents are costly for society in that they give excessive monopoly power
to the patent holder (Gilbert and Shapiro 1990). Central to this conclusion is that the flow
of payoff from holding a patent has a negative impact on the social surplus. Thus, a
minimum level of flow of payoff (breadth), with duration adjusted accordingly, would be
socially optimal. In Klemperers (1990) more general model, both narrow and long, or
broad and short, patents can be optimal, depending on the structure of demand. Broad and
short patents can also be optimal when they discourage imitation and thus enhance the
incentive to innovate (Gallini 1992). Specifically, imitation is discouraged when it is too
costly (broad patent) and when imitators do not have enough time to enter the market
(short patent)
Denicol (1996) analyzes these alternative conditions in a single model in which the
problem is to minimize a ratio of social loss to the incentive to innovate. The breadth
influences both the elements of the ratio, and, depending on the assumptions about the
nature of competition in these markets, all the above results can be found. Thus, in different
industries, different optimal patent policy could be enforced. Patents in biotechnology
should be different from patents in e-commerce, for example. Note that in these
models, patent length and the scope of protection are substitutes for the purpose of
providing a given level of protection to the innovator. This is not necessarily the case
when we consider cumulative innovations
Another dimension of the patent right is the protection it gives to the innovator
against improvements that are too close to the patented innovation. This feature is sometimes
referred to as the novelty requirement, also called height (van Dijk 1992) or
leading breadth (ODonoghue, Scotchmer, and Thisse 1998). Competition from followup
innovations are clearly affected by the height of the patent, and too high a patent gives
excessive monopoly power to the patent holder. As for the interaction between height and

duration, La Manna (1992) shows that a patent of infinite duration and finite height can
be optimal.

Consider the following simple model. Let B denote the social benefits to
the intellectual property, should it come into existence, and C the private
costs of creating the intellectual property. I will assume that C is primarily
a sunk cost and that once the intellectual property has been created it can
be distributed at relatively low marginal cost. Pharmaceuticals, software,
microchip designs, films and musical recordings fit this paradigm to a large
degree. Inventors capture only a fraction of the benefits of intellectual
property but they bear all the costs. Intellectual property will be produced
so long as B C >0 or, rearranging, so long as > C
B.
If it were possible to set = 1, this would maximize the social gains from
innovative activity (ignoring distributional issues). In practice, however,
increasing typically requires an increase in monopoly power. Thus, an
extra dollar in benefits to innovators comes at the expense of more than a
dollar lost by consumers. As a result is always less than 1. If the maximum
feasible is less than C
B the innovation will not be produced even if B >C.
If the maximum feasible is greater than C
B then should be set for each
innovation at the minimum level consistent with the project being profitable,
i.e., at = C
B.
An immediate implication of the model is that should be low when B is
high107. Note how this conflicts with the often heard intuition that intellectual
property should be highly protected when it is valuable and not so highly
protected when it is of low value. Yet in an optimal system high value
property is weakly protected and low value property strongly protected.
The current patent system rewards innovators with monopoly profits.
If costs varied strongly with benefits, as is the case for non-information
goods, then rewards would vary (indirectly) with costs. But in the case of
intellectual property the relevant costs are sunk and thus do not vary with
benefits. As a result, the patent system often offers innovators large rewards
despite the fact that research and developments costs are small. That is,
even though the economic rationale for patents is to allow innovators to
recoup R&D costs it often occurs that B far exceeds C. Absent the rationale
of recouping R&D costs, intellectual property protection creates monopolies
with attendant dead weight losses and no social benefits.
The granting of patents when B is far greater than C is not due to the
difficulty of comparing aB with C, which would sometimes occur even if the
system were designed on optimal principles. Rather the problem is that the
patent system pays almost no attention to C.
107 The model in the text is probably the simplest one that captures the standard theory
of patents. The standard theory, however, lives alongside other theories that are seemingly
similar but actually quite different. An alternative theory, for example, holds that patents
are necessary in order to speed the process of creation, or to say much the same thing to
increase probability of creating an innovation per unit of time. In a war, for example, the
government might want to offer strong patent rights (high ) for war-related innovations
even if fixed costs were low or imitation was not likely. Putting aside the extraordinary
circumstances of war, however, its clear that faster is not always better. At some point,
diminishing returns set in and the costs of increased speed exceed the benefits. Justifying
a speed theory of patents requires, therefore, a theory of externalities to explain why
the ordinary incentives provided by the market are not adequate

Economic theory, however, does suggest a standard for how broad

a patent should be: holding patent duration constant, the patent should
be just broad enough so that the sunk costs of innovation can be recouped
through monopoly profits ( . 9 )

(NADJI JOS RADOVA ZA ANALIZU DUZINA I OBIM PATENTNE ZASTITE)

npr. - Cevikarslan (2013) - optimalna sirina i duzina patenta
Galasso (2014) kumulativni patenti
(Landes Posner 2003 str. 324) problem sirine patenta
(Landes Posner 2003 str. 300) problem duyine patenta
(Belleflamme 2014) uticaj patenata na kumulativne inovacije
(Belleflamme 2013) apple vs. samsung (primer kumulativnih patenata)
(Belleflamme 2013 - b) - doyvoljavanje presirokih patenata
(Yair 2014) sirina i duzina patenata (primer farmaceutske industrije)
(Yianakka 2003) optimalna sirina patenta
(Hoppenhayn 2001) sirina patenta
(Horrowitz 1996) duzina patenta i uticaj na inovacije
(Sakakibara 1999 str. 32) uticaj obima patenta na inovacije (primer japana)
(Beschorner 2005 str. 19) duyina patenta i optimum ()
(Denicolo Franyoni 2002 str. 27) optimalna duzina i obim, odnos sa trade
secrets
(Palokangas 2009 str. 22) usporavanje ek razvoja kroz uvecanje sirine i
trajanja patenta
(Luski Wettstein 2004 str. 42)
(Bond Zissimos 2010 str. 1, 30) uticaj sirine patenata na inovacije
(Merges Nelson 1990) analiza obima patentne zastite ODLICNO
In conclusion, patent scope (breadth and height) can substitute for patent length in
providing ex post returns from (and therefore ex ante incentive for) an innovation. But
one should not conclude that broader or higher patents necessarily induce more research.
The problem is that, ex ante, a potential inventor needs to consider the possibility of
discovering something that may infringe on existing patents. The broader or higher the
patents, the greater the risk of such a possible unwanted infringement, and this possibility
can discourage R&D investments. As discussed in the foregoing, specific conclusions
about optimal patents are sensitive to the way one chooses to model the innovation
process. Also, the degree of substitutability between length, breadth, and height of a
patent depends on the nature of the innovation. Currently, there seems to be widespread
concern about exceedingly broad patents being granted, particularly in recent innovation
fields such as biotechnology and so-called business methods (Merges 1999). This is
particularly the case for cumulative innovations, when an innovation is useful mostly as a
research tool in other R&D activities.
C) KUMULATIVNI PATENTI (sequential innovation Y se nadogradjuje na X)
The importance of patent height is most apparent for the case of sequential innovations.
Such innovations are particularly relevant when the innovation is a research tool,
used mainly in the R&D process for further innovations. Consider first the case of a basic
innovation followed by its improvement, which eventually can be accomplished by the
same innovator. What is the impact of the scope of the protection in the diffusion of
innovations over time? Scotchmer and Green (1990) focus on the profit incentive for

R&D when the second innovation is more profitable than the first one (from social and
private viewpoints) and when there exists an information externality among innovators
(patent disclosure confers a positive externality on the innovators competitors). The
policy question here is to determine how stringent the novelty requirement should be in
order to protect the profit of innovators while encouraging disclosure of innovation. It is
presumed that the reasons for granting a patent are to create an incentive to do research
and to accelerate aggregate innovation through disclosure of innovations. The first reason
calls for a strong novelty requirement (any small improvement should be found to
infringe upon the patented innovation and thus protect fully the first innovator), whereas
the second reason calls for a weak novelty requirement.
Because the information externality that the innovator may want to avoid is due to
the disclosure requirement of patents, the innovator may prefer to keep small innovations
secret. The strategic suppression of small improvements can avoid the ex ante erosion of
profit due to a weak novelty requirement (Scotchmer and Green 1990). The weak novelty
requirement seems to be socially preferable because an early disclosure accelerates the
introduction of the improvement. Nevertheless, even in this system, the first innovation is
not always patented. When the ex ante profit is larger with the strong novelty requirement,
this last system is socially preferable. In any case, the first innovator can choose
not to patent the innovation. One way to force firms to disclose their small innovations
without undermining their profit would be to force them to cooperate. This could take the
form of licensing (Green and Scotchmer 1995; Scotchmer 1991). In the same vein,
Matutes, Regibeau, and Rockett (1996) show that a system based on an optimal height
rather than an optimal length is socially preferable because it induces an earlier introduction
of the innovation.
However, it is not always the case that the first innovator is able to improve on her
innovation or even to develop applications. For instance, small laboratories that do not
have access to sufficient capital may be unable to perform further development. In this
setting, what is the appropriate patent scope that gives enough incentive to the first and
second innovators to undertake R&D investment? Let us first assume that only one firm
is capable of being the second innovator. In this setting, each innovator should receive an
incentive at the level of the social benefit she creates. For the second innovator, it should
be the incremental benefit created by her improvement, whereas for the first innovator, it
should be the sum of the first innovation benefit and the incremental benefit. Indeed, the
feasibility of the second innovation is due to the very existence of the first one. For this
reason, the actual profit-sharing arrangement between innovators is important. If profit
sharing is in favor of the first innovator it will promote radical innovations, whereas if it
is in favor of the second innovator it will promote improvements.
It is nevertheless very difficult to favor improvement if the first innovation has no
value by itself (but is fundamental to the discovery of the second innovation). On the
other hand, a policy in favor of the first innovator will reduce follow-up improvements
and will thus affect the profit of the first innovator. Public authorities have two ways to
intervene in the profit-sharing process: through the scope of the patent (height, length, or
patentability of the second generation of innovations), and through the competitive policy
in regard to licenses. Green and Scotchmer (1995) present a situation in which it is
profitable for innovators to sign ex ante license agreements. They show that an infinite
height (i.e., any second-generation innovators need to get a license from the original
innovator) is optimal when there is certainty about the return of the second generation of
innovations. In the case of uncertainty, that is no longer the case.

Scotchmer (1991) explores the role of the patentability of the second generation of
innovations when the improvement of the initial innovation can be done by more than
one firm. The very existence of competition to obtain the second patent reduces the
expected profit of the first innovator and thus reduces the attractiveness of the ex ante
license. An ex ante license agreement can be impossible to implement in situations where
the second generation of innovators are reluctant to disclose their ideas for improvement
to the first innovator. Chang (1995) considers this situation and shows that, no matter
what the value of the first innovation, there exists a threshold value for the second
innovation below which a license is required and above which it is not required. The
smaller the benefit of the first innovation, the higher must be the patent in order to
provide enough incentive to the first innovator. But optimal patent height is not a mono
tonic function of the social value of the first innovation, and when this value is large, the
patent also must be high.
To fully capture the impact of the cumulative nature of the innovations on the
incentive to innovate, it is useful to consider a dynamic model where improvements of
the innovation arise randomly (ODonoghue, Scotchmer, and Thisse 1998). In this
setting, the innovators must be protected against improvements (leading breadth or
height) and against imitations (lagging breadth or breadth). Here it is assumed that the
probability that the same innovator makes two successive improvements is almost nil.
Depending on the rate at which improvement ideas arise, under a perfect lagging breadth,
innovators may overinvest or underinvest. They will tend to underinvest if ideas are too
frequent because they fear that another improvement will be introduced too early. But if
ideas are not that frequent, firms will overinvest because each innovator expects to
increase her payoff once she becomes a follower after having been a leader. With a
maximal lagging breadth, and if leading breadth is finite but duration is infinite, firms
underinvest in R&D. An infinite duration for a low patent reduces the cost associated
with the delay in diffusion (ODonoghue, Scotchmer and Thisse 1998).
Thus, when innovation is cumulative, the acceleration of the disclosure of the first
innovation is crucial to allow further improvements. However, this must be done without
altering the incentives of the first innovator. Furthermore, when innovations are cumulative,
their complementarity gives rise to additional issues.
NADJI JOS RADOVA ZA ANALIZU KUMULATIVNIH INOVACIJA
(Galasso Schankerman 2014) uticaj patenata na blokiranje inventivnosti na primeru
kumulativnih inovacija (rad sumiran ovde preuymi u potpunosti)
(Sampat Williams 2014 str. 27) patentiranje ljudskih gena uticaj na nove inovacije u
farmaciji (odlican zakljucak)
(Williams 2013 str. 14) umanjenje inovacija nakon patenata u oblasti genoma
(Rai 2001 str. 828,853) koncentracija, konkurencija I sekvencijalne inovacije u
biofarmakoloskoj industriji
(Pollock 2010 str 22.) - umanjenje troskova licenciranja patenata uklanja hold-up problem i
podize drustvenu korist (odlican zakljucak)
(Ferreira 2015) sumiranje nekoliko clanaka o uticaju patentnih prava na kumulativne
inovacije (odlicno preuzmi u potpunosti)
(Bessen 2004) ex ante licenciranje kod kumulativnih inovacija u slucaju da su troskovi
rayvoja privatna informacija (nedostupni yainteresovanim stranama)
(Dutfield Suthersanen 2004. str. 421) izuzeci od ekskluzivnosti prava na patent i njihov
uticaj na povecanje kumulativnih inovacija
(Erkal 2003) first-to-invent (US) ili first-to-file (EU) i uticaj na kumulativne inovacije
(Aoki Spiegel 2009 str. 341) objavljivanje naucnog rada pre patentiranja inovacije

umanjuje kumulativne inovacije

(Baron Delkamp 2011 str. 18) razlika izmedju drustvene i privatne vrednosti patenta kod
kumulativnih inovacija
(Mukoyama 2001 str. 378) drzave koje subvencionisu subjekte koji se bave imitacijom
tudjih inovacija mogu profitirati od ove prakse kroy izjednacavanje tehnooske razlike u vece
sanse da subvencionirani domamci subjekt ostvari monopolski profit kroz kumulativne
patente vezane za imitiranu postojecu tehnologiju
D) KOMPLEMENTARNI PATENTI (complementary X i Y su potrebni da bi zajedno dolo do
rezultata)
To manufacture a complex new product (e.g., a computer chip or a transgenic crop),
it is common for firms to need a number of intermediate inputs that are patented, with
such patent rights likely held by different firms. Insofar as the patented inputs are highly
complementary, or even essential, in the manufacture of the new product, the suppliers of
these inputs essentially hold blocking patents. The danger then is that the manufacturer
becomes susceptible to hold-up by the patentees (Shapiro 2001). In the context of biotechnology
innovations, this problem has been characterized as the tragedy of the
anticommons (Heller and Eisenberg 1998). Recall that the standard notion of tragedy of
the commons refers to the overuse of a common property resource, and it arises because
not enough property rights are allocated. The tragedy of the anticommons situation arises
because, somewhat paradoxically, there is an excess allocation of property rights (i.e., too
many gatekeepers with the right to levy a tax), and this situation can lead to an underuse
of the resource (in this case, the pool of knowledge).
The hold-up problem when patented innovations are complements can be quite
damaging to the functioning of the patent system. The issue here is mostly one of coordination
among patent holders. Mechanisms that can address the hold-up problem in this
setting include cross-licensing and patent pools.
With cross-licensing, which can be
implemented with or without license fees, two (or more) firms agree to share a subset of
each others patented technologies. This kind of arrangement is particularly attractive
when the relevant patents are held by the manufacturers of the new product that needs the
complementary patented inputs. Cross-licensing is apparently quite common between
firms engaged in the design and manufacture of microprocessors, for example.
A patent pool is an arrangement whereby a set of patents is licensed in a single package, for a
posted fee, either by a single owner or by an entity especially set up to handle this arrangement.
The obvious danger here is that, whereas the inclusion of complementary
patents in the pool is justifiable (as detailed in the foregoing discussion) and leads to procompetitive
behavior, the inclusion of substitute (rival) patents in the pool could be a
means to implement collusion and could exacerbate noncompetitive behavior. Patent
pools, therefore, can pose antitrust issues. Another way to reduce the fragmentation of
patent ownership is through mergers and acquisitions, and that, indeed, appears to be one
of the driving forces behind the recent industry consolidation in the life sciences sector.
Menell str 11 i 12
Collaboration and sharing of innovation, either through ex ante cooperative
research arrangements or through ex post licensing agreements, provide a

direct means to internalize the spillover benefits of research and development.

Katz (1986), Grossman and Shapiro (1987), Scotchmer and
Green (1990), Ordover (1991), Jorde and Teece (1992) and Gandel and
Scotchmer (1993) discuss how collaborative research ventures address the
appropriability problem and promote diffusion of innovation. They also note
the anticompetitive risks of such ventures and propose antitrust tests for
balancing competing considerations, emphasizing that such collaboration
should be particularly encouraged with regards to basic research for which
the appropriability problem is most pronounced (see also Kaplow, 1984). A
number of studies examine the strategic licensing of innovation and how the
potential for licensing may affect the level of research and development
investment (see generally Tirole, 1988, pp. 410-414). Katz and Shapiro
(1985a) find that firms will be less inclined to license major innovations (that
is, innovations affording an effective monopoly) than minor innovations where
the innovator and the potential licensees are comparably
efficient because of the potential for the innovator to derive monopoly
profits. They also find that the possibility of licensing has an ambiguous effect
on research incentives. Whereas the potential for greater return (through
more efficient diffusion) made possible by licensing encourages research, the
returns to not innovating are also higher since losers of patent
races (and those who do not enter the race) have the potential to share in the
rewards so long as they have some bargaining power in negotiating

NADJI JOS RADOVA ZA ANALIZU KOMPLEMENTARNIH INOVACIJA:

(Meniere 2007 str. 3,18) patentno pravo i komplementarne inovacije
(Schwiebacher 2011 str. 21) uticaj komplementarnih dobara na ulaganje u R&D
(Denicolo 2009 str. 28) povecanje privatnih i drustvenih troskova u situaciji
fragmentisanih patenata (kao sto su komplementarni patenti)
(D'antoni Rossi 2010 str. 17) u uslovima visoke medjupovezanosti inovacija, ex-ante
obecanje neiskljucivosti promovise ulaganja u R&D
Izvestaj Ministarstva Pravde US iz aprila 2007 o antitrustovskim merama u pogledu
intelektualnih prava poglavlje 3 str 85 i patent pool i cross licensing podstice efikasnost ali
migu dovesti do kartelskih sporayuma u pogledu cena
(Galetovic Haber Levine 2015 str. 26) BITNO standard-esential patents (SEP) NE dovode
do holdup problema !
ALTERNATIVE PATENTIMA
sistem dravne nagrade With the reward system, the government
specifies a fixed sum of money for a well-defined research goal and then awards this
prize to the first firm to achieve the desired result. Asymmetric information between
researchers and the government can make it difficult to implement the reward mechanism
(Wright 1983). Specifically, to be effective, the government must know about the feasibility
of various research projects as well as be able to assess the demand for various potential
innovations. But firms are likely to be better informed than the government on
such matters, and a decentralized solution such as the patent system may be superior.

procurement sistem (Langinier Mocchini 2002 str. )

With the procurement system, the government picks the firms that will be involved
in the research project and specifies the terms of the project (such as expected research
output and compensation terms) in a binding contract (Laffont and Tirole 1993). Unlike
the prize system, this method can eliminate unwanted duplication of research efforts. But
again, for this system to be efficient, the government must be quite knowledgeable about
the costs and benefits of research ventures
trade secrets kod patenta manje vredosti, vlasnik motivisaniji da sakrije podatke nego da
ih objavi i racuna na skupu patentnu yastitu preko sudova (Landes Posner 2003 str. 356),
(Belleflamme 2013)
- kombinovanje patenata i trade secrets (Belleflamme 2013 b)
We assume that technical complexity108 combined with trade secret law make
secrecy an
effective and valuable tool to protect innovations. This assumption is clearly
not appropriate for certain industries, while it is for many others. A large amount of
empirical evidence
shows that secrecy and lead-time are consistently regarded as better
protection mechanisms
than patents by most firms, with the notable exception of those active in the
pharmaceutical, chemical and mechanical industries (see, for instance, Arundel, 2001;
Cohen, Nelson,& Walsh, 2000). Furthermore, secrecy is shown to have
increased in importance over the
last decade. This might be partly explained by the strengthening accorded to
trade secret
protection in national legislations following the TRIPs (Trade Related Aspects
of Intellectual Property Rights) chapter of the Uruguay Round Agreement of 1994. In
fact, Art. 39
of the TRIPs defines a (minimal) international standard for the legal protection
of undisclosed information against unfair competition, which has since become
compulsory for all
countries belonging to the WTO.
Lopez str. 9 problem appropriability (inovatorova mgunost sticanja profita
od pronalaska)
istraivanja koja pokazuju poeqnije alternative patentima
The pioneer studies on patents and appropriability (Scherer et al, 1959 for the US and Taylor and Silberston, 1973 for the UK)
showed that patents were important as a means to profit from innovation only in the pharmaceutical industry. Later on,
Mansfield (1986) found based on the
firms own answers that only in the pharmaceutical and chemical industries a large number of innovations would not have
been developed or introduced in the market without patent protection, although, at the same time, the survey showed that
firms patented most of their patentable inventions. A similar conclusion had already been reached in Mansfield et al(1981).
The limited importance of patents for innovative firms received further confirmation in a study by Levin et al (1987) who, in
1983, asked 650 R&D performing manufacturing firms in the US about their preferred methods to protect innovations. In 1994
a new study was made on a similar basis involving 1,478 US firms employing from 20 to more than 100,000 workers (Cohen et
al (2000)). A distinctive feature of these studies was that they included other appropriability means such as secrecy, lead
times, moving rapidly along the learning curve and complementary sales, services and manufacturing facilities. A main finding

108Vincenzo Denicolo, Luigi Alberto Franzoni, The contract theory of patents , International Review of Law &
Economics Vol. 23 2004, p. 369

was that firms valued secrecy, lead times or complementary sales, services and
manufacturing facilities more than patents in most sectors. In fact, for the whole sample, patents only ranked above other
legal mechanisms (such as trademarks) in terms of their effectiveness to protect innovations. In turn, secrecy and lead times
were the preferred methods.
In the 1994 survey patents were not deemed to be the most effective protection mechanism in any industry, although they
ranked high in drugs, medical equipment and special purpose machinery (for product innovations). As expected, patents were
deemed not to be very effective in protecting product innovations in low-tech industries such as food, textiles and printing and publishing, or in traditional
heavy branches such as steel. However, patents also ranked low in high-tech industries such as electronic components, semiconductors, precision instruments
and communication equipment. In turn, it was found that secrecy and/or lead time were deemed as the most effective
mechanisms in almost all industries, except printing/publishing, glass, concrete and cement and electronic components, where
complementary sales and manufacturing capabilities were the most effective strategies. Lead time was judged as the most
effective mechanism for product innovations, followed by
secrecy and complementary assets. In the case of process innovations, secrecy was much more important than lead time it is
easier to keep process innovations secret than product innovations but complementary manufacturing capabilities also
emerged as a very relevant appro
priability tool. Patents were relatively more important for product innovations than for process
innovations.
Cohen et al (2000) found that, in fact, there were three different appropriability strategies in the manufacturing industry: one
based on lead time and complementary capabilities, another based on legal mechanisms (especially patents) and another
based on secrecy. However, firms
tended to use more than one appropriability method, simultaneously as well as sequentially. Both 1983 and 1994 surveys
asked about the reasons why firms did not use patents. Disclosure and ease of inventing-around were the most important
reasons, together with lack of novelty
of some inventions. In turn, the costs of applying and defending patents proved to be important reasons for not patenting
among small firms there was a correlation between firm size and whether the respondent indicated the cost of defending a
patent in court as a reason for
not patenting.
The availability of data similar to those generated by the 1983 and 1994 US surveys allowed the replication of the Levin
et al (1987) and Cohen
et al (2000) studies for many other countries. In the case of Europe this was possible to a large extent thanks to the launch of
the Community
Innovation Surveys (CIS). Arundel (2001), for instance, analyzes the relevance of different appropriability methods on the basis
of the results of the 1993 CIS for Belgium, Denmark, Germany, Ireland, Luxembourg, the Netherlands and Norway. The survey
only covers innovative firms, that is, those firms that introduced a new product or process between 1990 and 1992, and the
author concentrated, within this group of firms, on those that perform R&D on a continuous basis. Lead time was the
mechanism deemed by far the most effective, both for product as well as for
process innovations. Followed in order of decreasing relevance by secrecy, design complexity, patents and design registration.
The reasons for not trusting in patents were similar to those mentioned for the US case. Cohen et al (2001) undertook in Japan
a study similar to those recently mentioned for the US and Europe, on the basis of a sample of large R&D performing
manufacturing firms. The report
shows wide differences in the use of appropriability methods in Japan vis vis the US and Europe. All appropriability methods,
except patents,were deemed as less effective than in the US. The ranking of methods also differed. Secrecy was judged as the
least effective method for protecting product innovations, while patents were considered almost as effective as lead time and
manufacturing capabilities. In turn, in the case of process innovations, complementary manufacturing was the most effective
appropriability mechanism, while secrecy and lead time
followed.
In the same vein, Laursen and Salter (2005) studied the use of appropriability methods in the
UK industry dividing them into legal design registrations, trademarks and patents and first
mover secrecy, design complexity and lead time. Like the other studies mentioned above, they
found that first mover mechanisms (which are similar to what we have called strategic) were
the most relevant. Trademarks and patents seemed to have, on average, the same effectiveness.
The authors found differences in appropriability strategies by industry, but in all of them first
mover mechanisms were deemed as the most effective. In turn, the relevance of appropriability mechanisms in general was higher in sectors such as chemicals (which include pharmaceuticals), machinery and electrical
vis vis
food and drink, textiles, wood or paper and printing
Harabi (1995) studied a panel of Swiss firms actively engaged in R&D activities, almost all of
them in the manufacturing sector. Lead time ranked first for protecting process innovations and
second in product innovations for product innovations the preferred method was superior
sales and service efforts. Patents were considered the least effective method both for process as
well as for product innovations. The author found that only in some sectors namely chemical
products for plant protection, cosmetic products, chemical products (including drugs) and agricultural tools and equipment was patent effectiveness relatively high. The ability of imitators
to invent around patents was regarded as the most important constraint for patenting, followed
by information disclosure.
Konig and Licht (1995) studied a sample of German manufacturing firms and found that nonlegal IP mechanisms were more effective than legal tools. They found every non-legal IP protection tool more effective for protection of product innovations than patents.
Sattler (2002) analyzed a panel of German industrial firms that had introduced or planned to
introduce new products. The descriptive analysis shows that the ranking of effectiveness was as
follows: long-term employment relationships, lead time, design complexity, secrecy, patents and
design registrations. A wide variance in the data was found, especially regarding patent effectiveness. On the basis of this finding, the author performed a cluster analysis and found that 20
per cent of firms deemed patents as the most effective method. In turn, chemicals (including
pharmaceuticals), mechanical engineering and steel/basic metals were the industries where
patents were perceived as more effective (and the magnitude of these sectoral effects was relatively high).

Blind
et al
(2006), on the basis of a survey of German firms significantly involved in patenting
activities, studied the use of different appropriability mechanisms as well as the motives for
patenting. The sample on which the authors based their analysis covered a wide range of appropriability methods, both formal (patents, abroad and domestic, trademarks, utility models, copyright, designs) as well as informal (lead time, long-term contracts with workforce, exclusive relations with customers, secrecy, suppliers contracts). Although the sample was restricted only to
firms with patents, lead time was still considered the most important protection mechanism.
However, unlike other studies, patenting abroad and at home ranked second and third, respectively. Secrecy, in turn, ranked below exclusive relations with customers and at the same level as
trademarks.
Gonzalez-Alvarez and Nieto-Antolin (2007) studied a panel of Spanish manufacturing firms. The
mechanism that was mostly used was what the authors called continuous innovation (which,
according to them, could be assimilated to lead time), followed by time and cost for imitation
(related to the complexity of innovation), secrecy and patents.
Hurmelinna and Puumalainen (2007) studied a sample of Finnish R&D performing manufacturing firms. Descriptive statistics show that in terms of the effectiveness of appropriability mechanisms, the ranking was as follows: lead time, technical/practical means (secrecy, passwords,
limited access), tacitness, contracts, IPRs (patents, trademarks, copyright, utility models, designs,
trade secrets), labor legislation and human resource management.
Hanel (2005) studied a panel of Canadian manufacturing firms focusing on the use of legal IPRs,
not including other forms of appropriability. Two-thirds of manufacturing firms in Canada used
at least one form of IPR. Confidentiality agreements were by far the most popular IPR method,
followed by trademarks. Patents and trade secrets were used by nearly a quarter of Canadian
firms.
11

Although pharmaceutical firms made more intensive use of IPRs, in the case of patents,
higher use was found in agricultural, construction and mining machinery followed by electrical
quipment and appliances. The top users of trade secrets were producers of semi-conductors
and other electronic equipment, while in the computer industry confidentiality agreements were
the preferred method. Low-tech sectors, in turn, relied more on trademarks. More generally,
firms in high-tech sectors were more likely to be users of IPRs
vis vis
those in low-tech industries. The study also showed that firms that introduced product and process innovations and
only product innovations used IPRs more frequently (by frequently the author means the percentage of firms using IPRs within each group) than process-only innovators. This finding is
observed even for trade secrets.
As mentioned before, there are very few studies that aim to learn about the usage of appropriability mechanisms in the service sector. One of those studies is that of Baldwin
et al
(1998)
who analyzed the communications, financial and technical business service sectors. The study
asked about the use of different appropriability devices as well as about their effectiveness. In
terms of use, the report showed that fewer than half of the innovators in each industry reported using any of the IPRs available to them. In general, copyright and trademarks (specially
employed in the financial services industry) are the more commonly used instruments. Trade
secrets rank third in each industry, while patents are only used in the technical business service
sector.
Regarding the perceived effectiveness of the different appropriability methods, the survey also
included two strategic mechanisms, namely, being first to the market and complexity. Being
first to the market is ranked as the most effective method in the three industries. Trademarks
which are key for attracting and retaining customers ranked second in communications and
financial services, while complexity occupied that place in technical business services and ranked
third in communications and financial services. Patents were not seen as highly effective in any
sector, while trade secrets were important in technical business services (a finding that Baldwin
et al
attributed to the fact that most firms in that industry were small) and the same occurred
with copyright in communications.
Paallysaho and Kuusisto (2006) studied a sample of Finnish and UK firms in three knowledgeintensive service sectors: software consultancy and supply, business and management consultancy services and advertising. Most firms were small and medium-sized and their sales came
mostly from tailor-made services. As expected, patents were used very little (software firms had
a relatively higher rate of use), while trademarks and copyright dominated in the field of formal
IPRs. However, by far the most used appropriability mechanism was restrictive contracts (85 per
cent of the surveyed firms used contracts, against 36 per cent in the case of trademarks). These
contracts included requiring employees to sign non-disclosure agreements or non-competition
clauses.
12

The use of legal instruments was often complemented by informal means, such as
secrecy (which was widely used by the firms sampled in this study), publishing, restrictions on
access to information, enhancing personnel commitment and implementing schemes of fragmentation and rotation of duties.
Hipp and Herstatt (2006), studying a panel of service-intensive German firms, concluded that
the preferred protection tool was internal lock-in (long term labor contracts), followed by secrecy, first-to-market, complex design and lock-in of customers and suppliers. Only 6 per cent of
the firms used formal IPR strategies, mainly in the information and telecommunications and
media cluster. Moreover, most companies used a combination of two or more protection mechanisms, especially secrecy and first-to-market with lock-in strategies.
Blind
et al

(2003), based on data from CIS-2, found that the propensity to patent as well as the
number of patent applications was significantly lower in services compared with manufacturing. (According to the CIS-2, 7 per cent of service firms had applied for patents, compared with
25 per cent in the manufacturing industry.) The activities within the service sector where patenting was most common are R&D and business-related services and telecommunications. From
case studies of 65 service companies across the European Union, the authors found that the
protection mechanisms perceived as most important were trademarks, secrecy, customer relationship management and lead-time advantages, in that order, while patents were the least
important formal method. However, in general both formal and informal appropriability tools
had only average relevance in the innovation strategies of service companies. The most important reason for not patenting was that new services included tacit knowledge and were thus
not eligible for patenting.
Mairesse and Mohnen (2003) compared the protection methods used by manufacturing and
service firms drawing on data from the French CIS-3 survey. Trademarks, complexity and lead
time were the most widely used appropriation methods in the service sector; patents ranked
fourth along with secrecy. Although innovative service companies employed appropriability
methods less often than those in high-tech manufacturing sectors, the contrary occurred when
they were compared with innovators in low-tech sectors.
Beyond the literature based on quantitative evidence summarized so far, there are also a number of interesting papers based on case studies. Davis and Kjaer (2003a) studied patent strategies of small Danish firms in high-tech sectors (telecommunications, software and pharmaceutical-related biotechnology). Patents were a crucial appropriability means in the telecommunication industry, especially for products (processes were more prone to be protected by secrecy).
However, patents were not enough to secure appropriability, and were complemented by other
means such as R&D staff learning and experience (tacit knowledge). In contrast, patents were
rarely used in the software sector. Lead time and continuous product development, along with
sales and customer relations, were considered effective appropriation mechanisms in this sector. In the case of biotechnology, patents were considered the best means to secure appropriability. Other means were not considered feasible. For instance, lead time was not practical for
inventions with long development times, subject to extensive testing and government approval,
while complementary sales and marketing capabilities did not matter since, by the time the
product was marketed, the innovating firm and/or the innovation had most likely been taken
over by a larger firm. Regarding obstacles, the authors stated that size affected small firms in
several ways, for instance, increasing the difficulties of detecting and pursuing infringers, and
for using blocking patents. Davis and Kjaers (2003b) findings in their study on the appropriability strategies of small biotech firms in Medicon Valley, a cluster of biomedical firms in
Scandinavia, confirmed that in this sector patents were considered as the only effective means
of appropriation. Patenting strategies were based on an international approach, securing protection in all markets of interest for the firms. Similar to the findings of the study mentioned
above, although the authors dealt with small firms, they were not concerned about litigation
costs and other factors that usually deter that kind of firm from patenting because, by the time
the patented product was commercialized, it would likely be owned by a large pharmaceutical
firm.
In turn, Dahlander (2004) focused on the software sector, but dealt with open-source firms in
Sweden and Finland. The study was based on firms interviews, and showed that patents were
not used by those firms which relied on secrecy and copyright but mainly on lead time and network externalities (attracting a large user base and moving down rapidly through the learning
curve)

PATENTIRANE INOVACIJE KAO DEO STANDARDA (Standard-essential patents SEPs )

- uslovi koriscenja patenta (Fair, Reasonable, And Non-Discriminatory - FRAND)
DA LI SU PATENTI STRATEKE BARIJERE ULASKU NA TRITE
patent thicket (presiroko patentiranje da bi se sprecila konkurencija)
- tragedy of the anticommons (pojava da davanje iskljucivog prava na odredjeni resurs vise
nego jednoj strani umanjuje obim koriscenja tog resursa) (Nishijima 2004)
submarine patent (odlozeno objavljivanje priznatog patenta)
uticaj patentnih pulova na ulaganje u R&D (Choi 2013)
( 1981)
-razlike izmeu sistema (dobre i loe strane npr. razlike u dejsvu patentne prijave, vremenu
podnosenja iste, pretraga baze odobrenih patenata, patentnoj zatiti...)
razlike izmeu vrsta patenata i nune izmene radi prilagoavanja prirodi patentiranih objekata (npr.
Softverski patent u EU ) problem sirine softverskih patenata
- lose strane patenata (restriktivnost , trka za patentnu prijavu (Landes Posner 2003 str. 300,301),
str. 10 i dalje)
-dobre strane patenata (alokativna efikasnost)

PATENTNI TROLOVI (Non-practicing entities)

analiza uticaja patentnih trolova
patentni trolovi u Evropi (Belleflame 2014) (Strowel 2013)
Growing economic reliance on intellectual property development and use has led to a significant rise in
patent applications, patent grants, and patent litigation. Increases in patent grants have led to more
patents in the marketplace, not all of which can be used to put the underlying innovation into practice.
Each patent comes with rights conferred by the grant, regardless of the patent owners use of the
underlying innovation. The combination of strong patent rights and increased patenting volume has
encouraged business practices that exploit the rights that come with a patent rather than use the
underlying innovation. Instead of using patents to create goods and services for consumers, a variety of
businesses have begun to actively use patents to not only obtain licensing revenues but also to employ
strategies that may actually be anti-competitive. The non-practicing entity has become a hotly debated
concern in jurisdictions where intellectual property is becoming a significant economic driver. Some
scholars have begun to see non-practicing entities (NPEs) as a concern because of a perceived negative
impact on innovation, on the pricing of goods and services, on investment, and even on invention
marketing. There is a perception that current efforts to encourage the intellectual economy are creating
regimes that encourage business models that prize patent accumulation and rent-seeking rather than
invention or invention marketing. (Nikolic 2014-podrobna analiza NPE preuzmi)

We studied PAEs and expressed such concerns in Scott Morton and Shapiro (2014). In that paper, we
reported data from RPX showing that the numberof patent cases filed grew from 2,472 in 2010 to 5,411 in
2013, and that the proportion ofthese cases filed by non-practicing entities grew from 30% to 67%.RPX
data indicate that PAEs accounted for 91% of the patent infringement actions brought by non-practicing
entities in 2013 and 89% in 2014.We also
developed a theoretical model to assess the impact of PAEs on innovation, and used that model to
identifythe key
empirical parameters that determine whether entities that purchase patents to assert
and monetize them generally promote orharm innovation. The available empirical evidencepresented in
that paperindicates that, for plausible values of the pameters identified in ourmodel, such entities
generally harm rather than promote innovation
PAEs rarely transfer technology to implementers, either directly or indirectly.Feldman and Lemley (2015)
find that
all of the respondents in their survey who took patent licenses from NPEs reported receiving technical
knowledge along with a patent license in only 0% to 10% of their NPE licenses.Feldman and Lemley
summarize their results this way: With almost complete unanimity, respondents who took licenses from
NPEs, rarely received technical
knowledge, transfer of personnel (including consulting agreements) or joint ventures along with the
patents license. Thus, when companies licensed patents from NPEs, the indirect markets that might
suggest even the potential for future innovation were almost entirely absent
Thereis considerable evidence that PAEs have experienced recent setbacks. The latest data from
RPX show a meaningful decline in the number of patent infringement cases brought by non-practicing
entities, from 3,673 in 2013 to 2,791 in 2914.In 2014, non-practicing entities accounted for 63% of all
such cases, down slightly from 67% in 2013.
Target companies with less than $100 million in revenue accounted for 62% of the unique defendants
newly facing
allegations of patent infringement.

PATENTNI RATOVI
- (Paik Zhu 2014) uticaj patentnih ratova na strategiju firmi primer svetskog trzista smartfonova

PATENTNA ZATITA
sudska (uporedno EU, Engleska, Francuska i Nemacka) US

http://www.epo.org/about-us/annual-reports-statistics/annual-report/2014/statistics/patentapplications.html