Patent Buyouts

Recently I had a conversation with a reader/supporter of the blog. One of the things we talked about was a great 1998 paper, “Patent Buyouts: A Mechanism for Encouraging Innovation.” by Michael Kremer, who won the Nobel Prize in economics in 2019, together with Esther Duflo and Abhijit Banerjee.

Like the policy I wrote about in an earlier post, this is another clear example of low-hanging policy fruit. If implemented well, it has the potential to speed up the rate of innovation and progress.

Short summary

  • Patents were originally created to incentivise innovation. However, they also have a lot of downside implications that may deter innovation:

    – They don’t always provide the best incentives for original research because inventors cannot fully capture the consumer surplus available in the market.
    – Inventors don’t receive the benefits from spillovers to other new ideas.
    – Patents lead to distortions in the areas in which companies innovate. This is because it may not make economic sense to research areas where a lot of patents exist already.
    – Firms may engage in wasteful spending on things like the reverse-engineering of competitors’ patents.
    Thus, the problems associated with patents may hinder innovation and progress (section 1 describes these drawbacks in more detail).
  • Kremer suggests a new mechanism, the ‘patent buyout’. The government steps in and buys patents, which are then freely distributed to the public, who can enjoy the benefits associated with the patent. Additionally, companies are now free to make improvements upon the original patent because they are no longer constrained by having to negotiate with the original patent holder to get rights/access to it (go straight to section 2 if interested in a description of the patent buyout mechanism).
  • Section 3 discusses the patent buyout in action, briefly describing Daguerreotype photography process.
  1. What are the problems with patents?

In the absence of a patent system, the incentives for research would be substantially lower because anything a firm creates could be appropriated by its competitors. Fear of this happening, and the lower financial remuneration associated with this, reduces the incentives for original research. Thus, to prevent this from occurring, patents bestow a temporary monopoly (approximately 20 years) to a firm that has a new idea. This enables the patent-holder to profit from the new idea, increasing the incentive to innovate.

However, patents can also stifle innovation. In the last five or so years, we have seen a proliferation of 3D printers. They now have more commercial applications but also 3D printing is now affordable to a lay-person who finds 3D printing interesting.

However, this could have happened much earlier. Innovation was stifled due to the patents that restricted other companies from entering the market. Once these patents expired, the bottleneck was removed. Prices of 3D printers plummeted because of new entrants into the market. Additionally, these new companies improved upon the existing technology, making the products better. The patent buyout mechanism (described in the next section) could have brought forward this this surge of innovation.

In an 1851 editorial, The Economist wrote that granting patents, “inflames cupidity, excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits, bestows rewards on the wrong persons, makes men ruin themselves for the sake of getting the privilege of a patent.” This is perhaps an exaggeration but there are indeed a number of problems with patents:

  1. Some consumers cannot access the good/service because the product that is patented is charged at the monopoly price. This means that some consumers can’t benefit from the product, despite willing to pay above the cost price of production (but not at the monopoly price). For example, AZT (azidothymidine) is a drug used to prevent mother-to-child spread of HIV/AIDS during birth. There are potentially millions of cases of mother-to-child infection in developing countries, where individuals/governments/NGOs may have been prepared to pay above the cost price of the drug but not the monopoly price.
  2. Patents don’t allow the patent-holder to capture a large amount of the consumer surplus that their idea generates, which leads to lower incentives for original research. For example, Michael Milken (founder of Prostate Cancer Foundation) would presumably pay hundreds of millions of dollars for a drug that was effective in tackling prostate cancer but pharmaceutical companies don’t take this into account since they would not be able to extract this value from Milken.
  3. The empirical evidence suggests that new research usually creates positive externalities for other research. However, patents don’t reward innovators for these positive spillovers. Without taking these externalities into account, patents lead to lower incentives for original research.
  1. Patents may distort the direction of research from firms because firms are incentivised to work on areas where there are less patents restricting their innovation, rather than areas where patents already exist. Kremer explains that this has happened in the past:

    “For example, the development of the high pressure steam engine was blocked by Watt’s patent covering all steam engines; Watt’s steam engine was blocked by a previous patent until he found a way to invent around it; and Edison’s improved version of the telegraph was blocked by Bell’s prior patent for many years [Mokyr, 1990].” (I may write a post on this!).
  2. Finally, patents also lead to wasteful spending because firms waste resources reverse engineering patents. 

2. Patent buyouts

Kremer’s idea is simple. The government steps in, buys the patent, and destroys it. Now anyone (consumers or firms) can access it and build upon it.

However, we need to know how much the government has to pay for the price of that patent. Kremer suggests a mechanism that is used to determine the price the government pays.

First, patents are submitted by entrepreneurs to an auction. Then firms bid on this auction, revealing their valuation of the patent. Once the bidding is complete, the government offers to buy the patents at the winning price plus a markup. I won’t talk about how exactly to determine this markup (it should be the difference between the social and private value of inventions), but for now let’s say the mark-up is 10%. Thus, in our example, the government would pay the price determined by the auction plus a 10% premium. Once this process is complete, entrepreneurs owning the patent get to choose whether to accept or reject the governments offer. If the offer is too low, entrepreneurs maintain the right to reject the deal.

Couldn’t firms simply bid extremely high prices? How do we incentivise firms to give truthful valuations of their bids? To avoid this, the government randomly selects some bids that would be sold to the next highest bidder. So, let’s say 20% of the patents are sold to the next highest bidder. The other 80% of patents would be bought by the government and made available to the public. Thus, if a firm goes wild and bids extremely high prices, they would have to pay above market price for their poor bidding strategy. So, firms are incentivised to reveal their true valuations of the patents, otherwise they’ll be punished financially.

Figure 1 demonstrates the process visually. Patents are submitted to begin the procedure. The price of the patents are determined by the auction. The government then offers the price determined at auction plus an additional markup. If the patent holder accepts, the government randomises across buying the patent and releasing it to the public, or it is sold to the next highest bidder.

This mechanism isn’t calling for a complete abolition of the patent system. Indeed within this system, the patents not bought by governments are sold to firms. Thus, patent buyouts act in parallel with the existing system, rather than completely overhauling it.

The biggest difficulty with the mechanism (as Kremer acknowledges in the paper) is that it can be plagued by incompetent or corrupt government officials. Kremer suggests ways of overcoming these problems. For example, rather than the government matching the highest price (plus a premium) in the auction, they would instead select the third highest bid. This lowers the chances of the government having to pay for overzealous bids (also known as the winner’s curse). Additionally, if firms tried to collude to get higher prices, it would have to be three firms that collude, making collusion more difficult.

Finally, another problem lies with the fact that the government has to select the right patents. The government could pick patents to buyout that do not benefit society much.

Similarly, imagine there are two products, A and B. Let’s say product A is superior to product B, but the government chooses to buy the patent of product B. This means that the government could flood the market with an inferior product.

3. The Daguerreotype process of photography: A historical example

In 1837, Louis Daguerre invented the daguerreotype process of photography. The video below shows how it works.

How was it made? The Daguerreotype process of photography.

Daguerre was struggling to sell his new invention. Fortunately for him, Francois Arago, a politician and member of the Academie des Sciences argued “that the government should compensate M. Daguerre direct, and that France should then nobly give to the whole world this discovery which could contribute so much to the progress of art and science.” (quoted in Kremer).

In 1839, the French government bought the invention from Daguerre and put the process into the public domain. After this patent buyout, Daguerreotype photography spread across other countries and was subject to a number of improvements. Furthermore, the technique had spillover effects into improving innovation in chemistry and the production of lenses.

4. Conclusion

This is one of my favourite papers. Consumers gain through access to new innovation, innovators gain because they are paid a premium to their patents, and governments gain by improving the welfare of their citizens. Kremer suggests it could be experimented with on a smaller scale at first, and if successful, gradually expand its application. I hope it is experimented with in the future.

In a later post, I will address another paper in a later post, ‘Advance Market Commitments‘, which is something Kremer also pioneered. 

Finally, some may find this interesting. The word patent originates from the Latin word ‘patere‘, which ironically means, ‘to lay open’.

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