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In a dynamic environment where underlying competition is “for the market,” this chapter examines what happens when entrants and incumbents can instead negotiate for the market. For instance, this might arise when an entrant innovator can choose to license to or be acquired by an incumbent firm (i.e., engage in cooperative commercialization). It is demonstrated that, depending upon the level of firms’ potential dynamic capabilities, there may or may not be gains to trade between incumbents and entrants in a cumulative innovation environment; that is, entrants may not be adequately compensated for losses in future innovative potential. This stands in contrast to static analyses that overwhelmingly identify positive gains to trade from such cooperation.

The Bureau of Economics in the Federal Trade Commission has a three-part role in the Agency and the strength of its functions changed over time depending on the preferences and ideology of the FTC’s leaders, developments in the field of economics, and the tenor of the times. The over-riding current role is to provide well considered, unbiased economic advice regarding antitrust and consumer protection law enforcement cases to the legal staff and the Commission. The second role, which long ago was primary, is to provide reports on investigations of various industries to the public and public officials. This role was more recently called research or “policy R&D”. A third role is to advocate for competition and markets both domestically and internationally. As a practical matter, the provision of economic advice to the FTC and to the legal staff has required that the economists wear “two hats,” helping the legal staff investigate cases and provide evidence to support law enforcement cases while also providing advice to the legal bureaus and to the Commission on which cases to pursue (thus providing “a second set of eyes” to evaluate cases). There is sometimes a tension in those functions because building a case is not the same as evaluating a case. Economists and the Bureau of Economics have provided such services to the FTC for over 100 years proving that a sub-organization can survive while playing roles that sometimes conflict. Such a life is not, however, always easy or fun.

In this paper we look at patents as alternative to trade secrets. We disentangle the disclosure motive for patent protection from the traditional reward motive by adjusting the level of patent protection so as to make the innovator just indifferent between patenting and keeping the innovation secret. Thus, we keep the reward (expected profits) to the innovator fixed and focus on ex post efficiency. When duplication is not feasible and secrecy only entails the risk of public disclosure (a leakage), patents and secrets are perfect substitutes. Yet, a distinctive features of trade secret protection is that it allows for independent creation. The duplicative efforts to reproduce a concealed innovation make patents and secrets imperfect substitutes. If such duplicative efforts are actually exerted under secrecy, patents provide the pre-specified incentive to innovate at least social cost. If, however, the threat of duplication induces the innovator to preemptively license her trade secret, and such licensing agreements allow the innovator to appropriate all the saved duplication costs, then secrets can reward innovative activity more efficiently than patents. Thus, the issue of whether patents are socially preferable to secrets boils down to an assessment of the prevalence and the efficiency of trade secret licensing. The available empirical evidence suggests that licensing of trade secret information is limited and so hints at the superiority of patents.

This chapter presents a framework for evaluating commercialization strategies available to start-up innovators operating in high-technology industries. The chapter uses a stream of research relating to three major considerations for commercialization strategies: intellectual property rights’ strength; requisite complementary assets; and licensing/alliance transaction costs. The authors describe the options available to the innovator and explain how the attractiveness of alliances increases with the strength of the innovator's IPR position and the cost of acquiring complementary assets. The four distinct commercialization environments defined by these factors then are related to the likelihood an innovator will commercialize an invention through cooperation or competition. The chapter then applies the framework to five case studies of start-up innovators in a major research university's business incubator.

This chapter presents a framework for evaluating commercialization strategies available to start-up innovators operating in high-technology industries. We consider strategies ranging from head-on competition with incumbent firms to cooperation. Cooperation can manifest in a variety of alliances, including licensing, OEM relationships, R&D contracts, and joint ventures. We then relate the use of these strategies to alliance transaction costs, the need for complementary assets, and the firm’s intellectual property position. This chapter draws heavily on recent research showing that patterns of cooperation and competition vary markedly across industry sectors, with some form of cooperation with incumbents almost assuredly necessary in healthcare/medical technology. We emphasize the endogenous, dynamic nature of firm choices, and we illustrate the major principles with two case studies of start-up innovators commercializing university-based inventions. One company has developed several medical devices and the other electronics hardware and software. We follow the companies over a 10-year period, showing the evolution of strategy from cooperation to competition.

Intellectual property rights and competition policy are intimately related. In this chapter I survey the economic literature analyzing the interaction between intellectual property law and competition law and how the boundary between these two policies is drawn in practice. Recognizing that intellectual property rights and competition law can interact in many different ways, the presentation focuses on several key issues. The economic literature on the interaction between competition law and intellectual property rights shows that these regulatory systems are consistent in terms of basic principles. Significant tensions exist, however, and it is difficult to balance IPR and competition law in practice. The significant differences in approach between the United States and the European Union simply reflect the underlying reality that efforts to achieve a sensible balance do not result in policy harmonization.

There is growing public interest in alternatives to intellectual property including, but not limited to, prizes and government grants. We collect various historical and contemporary examples of alternative incentives, and show when they are superior to intellectual property. We also give an explanation for why federally funded R&D has moved from an intramural activity to largely a grant process. Finally, we observe that much research is supported by a hybrid system of public and private sponsorship, and explain why this makes sense in some circumstances.