By Kevin E. Noonan --
The term "the tragedy of the anti-commons" assumed a cache of avant-garde radicalism since its coining by Heller and Eisenberg in 1998. That cache was less alluring the more the listener knew of either patent law or academic science practices, but it certainly attracted "progressive" pundits and policymakers and supported the idea that the U.S. patent system was somehow "broken."
There has been precious little evidence for any tragedy, as evidenced by a report in Nature Biotechnology last year (see "The 'Anti-Commons' Aren't So Tragic, After All"). More recently, Ronald Bailey of Reason magazine posted an article updating the evidentiary status of the tragedy (see "The Tragedy of the Anticommons: Do Patents Actually Impede Innovation?"). And as Patent Docs reported last year, there isn't much of a tragedy after all. Mr. Bailey cites the Nature Biotechnology report, as well as other studies by the National Academy of Science. In a 2003 study, the Academy found that drug discovery had not been "substantially impeded" by patent proliferation in the area (see "Effects of Research Tool Patents and Licensing on Biomedical Innovation"). Moreover, the report found little evidence that use of research tools had been negatively affected. A more recent Academy study found that the number of projects abandoned or delayed was "extremely small" (see "Reaping the Benefits of Genomic and Proteomic Research: Intellectual Property Rights, Innovation, and Public Health"). Indeed, the more common reasons for project abandonment or delay included "lack of funding, conflict with other priorities, a judgment that the project was not feasible, not scientifically important, or not that interesting, and the perception that the field was too crowded with competing investigators," i.e., the traditional concerns of the academic scientist (not the unrealistically altruistic scientific shaman conjured by those trying to use such a chimera to support their efforts to restrict patenting).
This year, a report by the Association for the Advancement of Science (AAAS), entitled "International Intellectual Property Experiences: A Report of Four Countries" provided a survey of the experiences of thousands of scientists in the U.S., Europe (Germany and the U.K.), and Japan with regard to "acquiring, using, or creating" intellectual property. Again, little evidence of anticommons tragedies were reported, and according to Stephen Hansen, the director of the AAAS study, "[a]ll four studies suggest that intellectual property rights had little negative impact on the practice of science."
Researchers into the anticommons tragedy are catching on. As Mr. Bailey reports, "[i]t is interesting that we rarely, if ever, hear from the researchers themselves about these issues. The issues have been brought to public attention instead by academic lawyers, sociologists and economists," noted Hansen. What has happened is that a handful of cases - including Myriad Genetics BRCA1/BRCA2 breast cancer diagnostic test and the Cavanan lawsuit brought by Chicago attorney Lori Andrews - have been used extensively in the popular press to create a false impression that the anticommons problem is systemic and widespread, when in fact it is not. Mr. Bailey's report notes that the impetus for patent "reform" stems mostly from the information technology sector, as a consequence of the differences in investment costs, obsolescence timing, and "patent thicket" propensities of that industry. Even in this arena the 
evidence is that there is no anticommons tragedy, as reported by workers at the London School of Economics (see "Strategic Patenting and Software Innovation"). Citing the study, these authors report that "expansion of patentability over software during the 1980s and early 1990s was not associated with any major changes in R&D investment" by software innovator firms. This evidence has not prevented other authors, notably Boston University visiting law professor James Bessen and the Federal Reserve Bank of Philadelphia's Robert Hunt, from suggesting that "the over-proliferation of software patents was reducing software research and development and slowing down innovation" (see "An Empirical Look at Software Patents").
Thus, the empirical evidence establishes that there is no tragedy in the IT or biotechnology anticommons. The real tragedy, of course, is the uncritical acceptance of such theoretical contingencies by politicians and policy-makers. Perhaps stated more directly, it is the use of the work of these academic theoreticians by anyone with a political agenda to support, regardless of whether there is any evidence that the risk is real. As Patent Docs noted in reporting on the Nature Biotechnology report a year ago, the principal proponents of the anti-commons theory had no evident experience or expertise in either patent law or academic science. This should have engendered caution if not open skepticism to their ideas, but instead they were used by novelists, bureaucrats, and pundits to support the notion that the patent system in the U.S. was broken. As has been evidenced by the recent rule-making activities of the U.S. Patent and Trademark Office, as well as the witness lists of Congressional hearings regarding patent "reform," the one group consistently ignored (except those who sing from the anti-patent hymn book such as Dan Ravicher) are patent attorneys, who at a minimum are conversant with the competing interests and practices as they exist before "reform," and who have a much better understanding of what works and what is "broken" in U.S. patent law and practice. The evident disdain for patent attorneys exhibited by the Patent Office and others actively working to retract the protections of U.S. patent law suggests the reason for ignoring patent lawyers: their plans are not supported by the facts, and so those who know the facts cannot be permitted to be heard. This by itself should be a clarion call for patent attorneys to make themselves heard in this debate, by all means necessary.
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