A study of Patent Thickets (1.31Mb) - UK Intellectual Property Office

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6 A Study of Patent Thickets 4. Effects of Patent Thickets on Entry and Survival 41 4.1 A descriptive analysis of patent thickets 41 4.1.1 Descriptive analysis of triples count 41 4.2 Exposure of UK SMEs to patent thickets at the EPO 47 4.3 Patent thickets and entry 51 Conclusion 59 Bibliography 61 Appendix 71 7.1 Description of Datasets Created 71 7.2 Methodological analysis of the triples measure 72 7.3 Hazard models of entry 74 7.4 Additional Tables 76
A Study of Patent Thickets 7 1 Introduction This study investigates a question posed by the UK Intellectual Property Office concerning patent policy and SMEs: Are patent thickets a barrier to entry and how do they affect small and medium sized enterprises (SMEs) In this introduction we briefly discuss the definition of key terms in these questions, namely “patent thickets” and “barriers to entry”. Then we discuss why the question arises now and the reasons that answers matter for policymakers. Finally, we present the structure of this study and provide a brief summary of our main results. 1.1 Patent thickets A patent thicket is “a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology” (Shapiro, 2000). Patent thickets consist of patents that protect components of a modular and complex technology. Here modular means that different sets of components can be assembled to yield a variety of technological products. Complex means that products consist of tens or hundreds of such modular components. Each component may be used in several products. Often there are partial or complete overlaps in the functionality of components and then the patents protecting the components may also overlap. If overlapping patents belong to different firms, then a patent thicket exists. Although technology areas with large number of patents often lead to patent thickets, this is not necessarily the case. In principle, an active technology area could have a large number of patents, each clearly delineating the invention concerned and none with overlapping claims or claims with uncertain breadth or scope. Thus it is important not to use numbers of patents as an indicator of patent thickets. Nevertheless, it is undoubtedly the case that one of implications of the presence of patent thickets is active patenting in the sector, so the two phenomena are correlated. Later in this report, we propose a measure of thickets in a technology area that incorporates an indicator of complexity and the possibility of overlapping claims, and controls for the overall level of patenting in the area. Patent thickets have been a concern of antitrust agencies and regulators in the United States for over ten years (Federal Trade Commission, 2003; U.S. Department of Justice and Federal Trade Commission, 2007; Federal Trade Commission, 2011). In Europe interest in the phenomenon picked up with some delay (Arundel and Patel, 2003; Harhoff, 2006; Harhoff et al., 2007), although it has taken a back seat to reforms of the European patent system such as the unified patent court. One reason for reduced interest in Europe is the exclusion of software per se as patentable subject matter at the EPO. In the U.S., many of the problems in this area are associated with software and internet-related patents.
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