Patent thicket
Encyclopedia
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
," or, in other words, "“an overlapping set of patent rights” which require innovators to reach licensing deals for multiple patents from multiple sources."
The expression may come from SCM Corp. v. Xerox Corp. patent litigation case in the 1970s, wherein SCM
's central charge had been that Xerox
constructed a "patent thicket" to prevent competition
.
Patent thickets are used to defend against competitors designing around
a single patent. It has been suggested by some that this is particularly true in fields such as software
or pharmaceuticals, but Sir Robin Jacob
has pointed out that "every patentee of a major invention is likely to come up with improvements and alleged improvements to his invention" and that "it is in the nature of the patent system itself that [patent thickets] should happen and it has always happened".
Patent thickets are also sometimes called "patent floods", or "patent clusters". According to a report
by Professor Ian Hargreaves
, published in May 2011, patent thickets "obstruct entry to some markets and so impede innovation."
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
rights that a company
Company
A company is a form of business organization. It is an association or collection of individual real persons and/or other companies, who each provide some form of capital. This group has a common purpose or focus and an aim of gaining profits. This collection, group or association of persons can be...
must hack its way through in order to actually commercialize new technology
Technology
Technology is the making, usage, and knowledge of tools, machines, techniques, crafts, systems or methods of organization in order to solve a problem or perform a specific function. It can also refer to the collection of such tools, machinery, and procedures. The word technology comes ;...
," or, in other words, "“an overlapping set of patent rights” which require innovators to reach licensing deals for multiple patents from multiple sources."
The expression may come from SCM Corp. v. Xerox Corp. patent litigation case in the 1970s, wherein SCM
Smith Corona
Smith Corona or the SCM Corporation is a US typewriter and calculator company. Once a large U.S. manufacturer, the company experienced sales declines in typewriters in the mid-1980s due to the introduction of PC-based word processing...
's central charge had been that Xerox
Xerox
Xerox Corporation is an American multinational document management corporation that produced and sells a range of color and black-and-white printers, multifunction systems, photo copiers, digital production printing presses, and related consulting services and supplies...
constructed a "patent thicket" to prevent competition
Competition (economics)
Competition in economics is a term that encompasses the notion of individuals and firms striving for a greater share of a market to sell or buy goods and services...
.
Patent thickets are used to defend against competitors designing around
Design around
In the field of patents, the phrase "to design around" means to invent an alternative to a patented invention that does not infringe the patent’s claims. The phrase can also refer to the invention itself....
a single patent. It has been suggested by some that this is particularly true in fields such as software
Software patent
Software patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".In 2005, the European Patent Office...
or pharmaceuticals, but Sir Robin Jacob
Robin Jacob (judge)
Robert Raphael Hayim "Robin" Jacob , now styled The Rt Hon. Professor Sir Robin Jacob, was as Lord Justice Jacob a judge in the Court of Appeal of England and Wales.His primary area of expertise is intellectual property rights...
has pointed out that "every patentee of a major invention is likely to come up with improvements and alleged improvements to his invention" and that "it is in the nature of the patent system itself that [patent thickets] should happen and it has always happened".
Patent thickets are also sometimes called "patent floods", or "patent clusters". According to a report
Hargreaves Review of Intellectual Property and Growth
The Hargreaves Review of Intellectual Property and Growth, or Digital Opportunity - A review of Intellectual Property and Growth, was an independent review of the United Kingdom's intellectual property system, focusing on UK copyright law...
by Professor Ian Hargreaves
Ian Hargreaves
Prof Ian Richard Hargreaves is Professor of Journalism at the Centre for Journalism Studies at Cardiff University, Wales, UK...
, published in May 2011, patent thickets "obstruct entry to some markets and so impede innovation."
See also
- Design aroundDesign aroundIn the field of patents, the phrase "to design around" means to invent an alternative to a patented invention that does not infringe the patent’s claims. The phrase can also refer to the invention itself....
- Essential patentEssential patentAn essential patent is a patent which discloses and claims one or more inventions that are required to practice a given industry standard. Standardisation bodies, therefore, often require members disclose and grant licenses to patents and pending patent applications that they own and that cover a...
- Patent ambushPatent ambushA patent ambush occurs when a member of a standard-setting organization withholds information, during participation in development and setting a standard, about a patent that the member or the member's company owns, has pending, or intends to file, which is relevant to the standard, and...
- Patent holding companyPatent holding companyPatent holding companies are companies set up to administer, consolidate and license patents or otherwise enforce patent rights, such as through litigation...
- Patent mapPatent mapA patent map is a graphical model of patent visualisation. This practice "enables companies to identify the patents in a particular technology space, verify the characteristics of these patents, and .....
- Patent poolPatent poolIn patent law, a patent pool is a consortium of at least two companies agreeing to cross-license patents relating to a particular technology. The creation of a patent pool can save patentees and licensees time and money, and, in case of blocking patents, it may also be the only reasonable method...
- Patent portfolio
- Patent trollPatent trollPatent troll is a pejorative but questioned term used for a person or company who is a non-practicing inventor, and buys and enforces patents against one or more alleged infringers in a manner considered by the target or observers as unduly aggressive or opportunistic, often with no intention to...
- Tragedy of the anticommonsTragedy of the anticommonsThe tragedy of the anticommons is a neologism coined by Michael Heller to describe a coordination breakdown where the existence of numerous rightsholders frustrates achieving a socially desirable outcome. The term mirrors the older term tragedy of the commons used to describe coordination...