To hack or not to hack – a new report on Patent Thickets August 22nd, 2013 by Peter
WIPO reported that in 2011 global patent applications broke the two million mark. This journey is one of almost constant growth spanning more than two decades. Could such an increase herald a bright new future of global technological brilliance? Or does this fuel a growing concern of an overcrowding that is choking the patent landscape?
Consider the patent landscape to be a fertile, but uncultivated ground, upon which for each new patent a tree is planted. The increase in patent applications has lead to many trees being planted. Some are in new, unexplored areas, others on more familiar, populated ground. It is on such populated ground that the problem of patent thickets has grown.
A patent thicket is a large number of patents that overlap in scope that a company must navigate in order to launch a new technology. Often those launching the new technology are unaware of the thicket until they reach the market, at which point they are ensnared. In recent years, these have come to the fore because of the regular legal battles in the telecommunications industry, where the briar patch of legal action has many thorns that seem to grow in number by the day.
In a thicket, smaller plants find it harder to thrive as the larger plants block the light. This is also a concern for patent thickets. The Hargreaves Review of Intellectual Property and Growth suggested that the Government should investigate ways of limiting adverse consequences of patent thickets. The IPO began this investigation with “Patent Thickets – an overview”, which provided a clear basis for discussion and posed the key questions in need of answering to determine the effects of patent thickets.
A second, recently published report commissioned by the IPO entitled “A study of Patent Thickets” aims to answer some of these questions. The aim of this research was to:
- Understand whether thickets deter new competitors, especially small and medium sized enterprises, from entering a technology area
- Understand what effects pending patents, a patent that has been applied for but not yet granted, have as a barrier to enter a technology area and their relationship with patent thickets
This aim is met by considering what stops the young plants from getting light, the density of the existing trees, extent to which the branches of the existing trees overlap or some combination of the two. This answers the question, how are firms affected by both the number of patents and the degree of overlap of patents?
It finds that patent thickets do exist in specific technologies, and there is little difference in patenting behaviour and entry between large and small firms. However, there are a few areas of complex technologies (such as telecommunications, audio visual and computer technology) where the probability of small firms entering into patenting is reduced. What is of note is that within such markets, UK firms have a limited presence.
This suggests that at least for now, UK firms do not seem negatively affected by patent thickets. So a nice orderly forest is thicket free no matter how dense the trees. Do you feel this is the case? Do you have examples to confirm or to the contrary? Do patent thickets actually exist? We’d welcome your views and comments.