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4 Hastings Sci. & Tech. L.J. [i] (2012)

handle is hein.journals/hascietlj4 and id is 1 raw text is: HASTINGS SCIENCE & TECHNOLOGY LAW
JOURNAL
VOLUME 4                     WINTER 2012                      NUMBER 1
Table of Contents
ARTICLES
INDIRECT EXPLOITATION OF INTELLECTUAL PROPERTY RIGHTS BY
CORPORATIONS AND INVESTORS
by  Tom   E w ing  ..........................................................................................................  1
Competitive pressures and rent-seeking behaviors have motivated companies
and investors to develop indirect techniques for beneficially exploiting third-party
intellectual property rights (IPRs) that qualitatively depart from the direct
exploitation tools honed during the past thirty years of the pro-patent era. Among
other things, companies have realized that they do not even need to own IPRs in
order to consequently benefit from their exploitation. This phenomenon is labeled
here IP privateering because of its similarities to an historic method of waging
war on the high seas. This Article classifies IP privateering as a species of
aggressive non-practicing entities (NPEs). The parameters of this newly identified
strategy are probed using a variety of methods. The apparent evolution of this
indirect IPR exploitation strategy is also traced among companies. A typology for
IP privateering is provided that identifies the key variables associated with this
strategy. Examples of privateering, both actual and hypothetical are discussed.
The identified privateering scenarios, while small in number, have amounted to
well over $3 billion in rent collections and have possibly saved sponsoring
companies an order of magnitude more in avoided revenue losses.     The
infrastructure that supports privateering is discussed as well as how a possible
patent oversupply may facilitate this strategy. The social utility of privateering is
examined from various points of view including corporate, SME, investor, and
inventor. Further questions are posed regarding IP privateering and aggressive
NPEs (observing that both actors are likely supported financially by participants
operating in the investment capital market), the need for ownership transparency
in the innovation system, and whether the legislator should more explicitly design
an innovation system that includes boundaries for various IPR strategies.

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