Tragedy of the anticommons

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Scientists are often reluctant to share their data[1]

The tragedy of the anticommons is a type of coordination breakdown, in which a single resource has numerous rightsholders who prevent others from using it, frustrating what would be a socially desirable outcome. It is a mirror-image of the older concept of tragedy of the commons, in which numerous rightsholders' combined use exceeds the capacity of a resource and depletes or destroys it.[2] The "tragedy of the anticommons" covers a range of coordination failures including patent thickets, and submarine patents. Overcoming these breakdowns can be difficult, but there are assorted means, including eminent domain, laches, patent pools, or other licensing organizations.[citation needed]

The term originally appeared in Michael Heller's 1998 article of the same name[2] and is the thesis of his 2008 book.[3] In a 1998 Science article, Heller and Rebecca Eisenberg, while not disputing the role of patents in general in motivating invention and disclosure, argue that biomedical research was one of several key areas where competing patent rights could actually prevent useful and affordable products from reaching the marketplace.[4] Proponents of the theory claimed that too many property rights could lead to less innovation.


Early aviation[edit]

In early aviation, the Wright brothers held patents on certain aspects of aircraft, while Glenn Curtiss held patents on ailerons which was an advance on the Wright's system, but antipathy between the patent holders prevented their use. The government was forced to step in and enforce the existence of a patent pool.[5]

Post communism[edit]

In Heller's 1998 Harvard Law Review article,[2] he noted that after the fall of Communism, in many Eastern European cities, there were a lot of open air kiosks, but also a lot of empty stores. Upon investigation, he concluded that because many different agencies and private parties had rights over the use of store space, it was difficult or even impossible for a startup retailer to negotiate successfully for the use of that space. Even though all the persons with ownership rights were losing money with the empty stores, and stores were in great demand, their competing interests got in the way of the effective use of space.

Robber barons[edit]

Michael Heller says that the rise of the "robber barons" in medieval Germany was the result of the tragedy of the anticommons.[6] Nobles commonly attempted to collect tolls on stretches of the Rhine passing by or through their fiefs, building towers alongside the river and stretching iron chains to prevent boats from carrying cargo up and down the river without paying a fee.[6] Repeated attempts by the Holy Roman Empire, including several efforts over the centuries led by the Emperor himself, to regulate toll collection on the Rhine, but it was not until the establishment of the "Rhine League" of the Emperor, certain nobles, and certain clergy that the control of the "robber barons" over the Rhine was crushed by military force. River tolls on the Rhine, increasingly imposed by states rather than individual lords, remained a sticking point in relations and commerce in the Rhine basin until the establishment of the Central Commission for Navigation on the Rhine in 1815.


In the field of biomedical research, notably in America, patents were taken out on particular genes, treatments and techniques. From 1991, the NIH permitted patents to be taken out on anonymous gene fragments. This created extra costs and impediments to creating new treatments and tests. Although in principle rights holders could come together to make a deal, cognitive biases exist in rights owners that can often prevent deals that would likely be beneficial from occurring.[4] For example, tests for certain breast cancer mutations were unavailable since the rights holder for the BRCA human gene did not release them onto the market, which lead to false negative tests for cancer. In the end the courts held that human genes were not patentable.[7]

See also[edit]


  1. ^ Roche, Dominique G.; Lanfear, Robert; Binning, Sandra A.; Haff, Tonya M.; Schwanz, Lisa E.; Cain, Kristal E.; Kokko, Hanna; Jennions, Michael D.; Kruuk, Loeske E. B. (2014). "Troubleshooting public data archiving: suggestions to increase participation". PLOS Biology. 12 (1): e1001779. doi:10.1371/journal.pbio.1001779. 
  2. ^ a b c Heller, Michael (January 1998). "The Tragedy of the Anticommons". Harvard Law Review. 
  3. ^ Heller, Michael (2008). The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. Basic Books. ISBN 978-0-465-02916-7. 
  4. ^ a b Heller, M. A.; Eisenberg, R. (May 1998). "Can Patents Deter Innovation? The Anticommons in Biomedical Research". Science. 280 (5364): 698–701. doi:10.1126/science.280.5364.698. PMID 9563938. 
  5. ^
  6. ^ a b Heller, Michael (2008). The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. Basic Books. ISBN 978-0-465-02916-7. 
  7. ^ Should you be able to patent a human gene? Tania Simoncelli

Further reading[edit]

External links[edit]