An Economic Take on Patent Licensing: Understanding the Implications of the “First Sale Patent Exhaustion” Doctrine

Anne Layne-Farrar (), Gerard Llobet and A. Jorge Padilla ()
Additional contact information
Anne Layne-Farrar: LECG Consulting, http://www.lecg.com
A. Jorge Padilla: LECG Consulting, http://www.lecg.com

Working Papers from CEMFI

Abstract: Under the legal doctrine of first sale, or patent exhaustion, a patent holder’s ability to license multiple parties along a production chain is restricted. How and when such restrictions should be applied is a controversial issue, as evidenced by the Supreme Court’s granting certiorari in the Quanta case. The issue is important, as it has significant implications for how firms can license in vertically disaggregated industries. We explore this issue from an economic viewpoint and find that under ideal circumstances how royalty rates are split along the production chain has no real consequence for social welfare. Even when we depart from ideal conditions, however, we still find no economic justification for a strict application of patent exhaustion. To the contrary, we show there are often private and social advantages to charging royalties at multiple stages. Our results advocate for a flexible application of the first sale doctrine, where exhaustion holds as a default rule but can be easily overwritten in patent contracts.

Date: 2010-02
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