UKIPO (2011) - Patent Thickets An Overview

• This page is referenced in the Patent Thicket Literature Review
• This page is listed on the PTLR Core Papers page

Reference

• Team, Intellectual Property Office Patent Informatics (2011), "Patent Thickets: An overview", UK Intellectual Property Office

@article{ukipo2011patentthickets,
  title={Patent Thickets: An overview},
  author={Intellectual Property Office Patent Informatics Team},
  journal={UK Intellectual Property Office},
  year={2011},
  abstract={},
  discipline={Policy Report},
  research_type={Discussion},
  industry={},
  thicket_stance={},
  thicket_stance_extract={},
  thicket_def={},
  thicket_def_extract={},  
  tags={},
  filename={UKIPO (2011) - Patent Thickets An Overview.pdf}
}

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Review

Definition of patent thicket

"The phrase ‘patent thicket’ is a descriptive term which highlights issues that new entrants to a market may face when attempting to innovate within, or enter into, a technology space having existing intellectual property rights. The most generally used definition of a thicket is that coined by Shapiro: ‘a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology’."

Policy Discussion

Policy topic considered:

In response to a study that concluded that patent thickets can impact negatively on business and innovation, the UK Government opened an investigation into the scale and prevalence of patent thickets. This paper is the first of a series and considers:

• Moving the patent thicket debate from anecdotal discussions by developing a general taxonomy for discussion;
• Generating a methodology for detecting patent thickets in published patent data;
• Assessing extent of patent thickets as a potential barrier for companies (particularly SMEs) in the UK

While not the focus of the article, the authors note that:

"The differences between the US and European patent systems may serve to overall allow [The Patent Assertion Entity] PAEs to operate in the US system because of the following points: - The presumption of validity of patents by US judges and juries - The allowance of business methods and ‘software patents’ - The potential for the existence of so called ‘submarine patents’, as not all patents are published at the 18 month stage - The way in which costs are divided by the courts – both parties pay their own costs - The high costs of litigation - Where ‘wilful (sic) infringement’ is decided, high level of damages can be afforded - The payment system for lawyers can be considered to encourage lawsuits - The existence of patents of unclear scope”

Data considered:

The report relies upon an IPO database collected from publically available data for UK, US and EU to assess the existence of patent thickets of high patent densities.

• The data includes datasets limited by 20 years for granted patents, and 5 years for pending patent applications within each of the technological areas covered.
• Technology areas covered by the data include: Nanobiotechnology, Telemedicine, Dendritic polymers, Graphene, Photorefractive keratectomy, Wireless networking (handoff arrangement), Safety razors, and Fuel Cells.

Results:

The report provides “an initial insight” into whether or not patent thickets are found in a specific technology area.

• The results show that technology areas containing thickets tend to be dominated by larger applicants, though some technologies include thickets caused by multiple applicants having smaller sized portfolios.
• The study’s indicators also appear to show that there is a possibility of different thicket forms occurring where there are different types of technology linked to the maturity of that technology space.

Social Welfare Implications

The potential barriers to entry, in particular for SMEs are of special concern to the UK government, thus the generation of this study.

Policy Advocated in Paper

While not conclusive in this report, the authors propose several areas for further study including:

• Develop an economic significance test of whether SMEs can grow within such technology spaces and needs further study;
• Determine whether pending patent applications are a barrier to entry.
  • Because timing of patent applications creates uncertainty, further work is needed to track cohorts of patents from application to grant for technology areas and jurisdictions to determine the impact.
  • This effort is inhibited by dataset issues.
• Clarify language in patents:
  • New entrants to technology might find it difficult to understand the scope of patents being sought because of the language of patent claims.
  • Time and energy spent on understanding a technology area in terms of acknowledged activity coupled with a consistent approach towards obviousness could potentially reduce numbers of patents granted and increase overall densities.
• A potential method for preventing patent thickets would be to charge patent holders a renewal fee, though further research is needed.
• Additional data should be collected:
  • The authors suggest studying data relating to licensing and patent ownership in the US, Great Britain, and European patents and the secondary market would be useful, though they note that this data is currently unavailable.
  • Further work is needed to begin to understand how patents and products are linked before datasets could be created.