For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Tuesday, 29 November 2011

Gwilym and the thicket collectors, or why life isn't as bad, and is more interesting, than one might think ...

"Thickets please -- there's no
free riding on this technology ..." 
It was only a few short days ago that the UK's Intellectual Property Office (IPO) published on its increasingly informative website, a document called Patent Thickets: an Overview. This document lives in a part of the IPO's website called "Patent Informatics; using patent data to mine, reveal, and inform, for government and for industry", which you can find here: this page houses other interesting documents and information too.

Patent Thickets sprung into public view at the end of last week, just at the moment when the IPKat was busy tying his bootlaces. Since he lacks opposable digits, this process generally takes several days. Accordingly, he was not surprised -- and was actually very pleased -- when his friend Gwilym Roberts (Kilburn & Strode, just down the road from the Old Nick) told him that he had already given Patent Thickets some thought.  This is what Gwilym says:
"As required by the government response to Hargreaves, the IPO through its informatics team has now issued an overview of Patent Thickets. The report frames the questions rather than any answers, but provides a thorough review of the wide range of contributory factors, as well as providing a tour d'horizon [French for 'Cook's tour'] of current issues around "bulk patenting" - thickets, trolls (now "patent assertion entities" -- thank you, America), standards and pools, together with relevant historical context. Three aims are expressed: to develop an appropriate taxonomy [not to be confused with taxidermy, where it's aninals that get stuffed, not industrial competitors ...], to automate thicket detection and to assess the impact; that ordering makes rather good sense.
Arthur never could
decide which patented
razor he should buy
The overview touches on a range of technical areas, from telecoms through graphene to safety razors, and provides a mini-case study of the latter, if only to illustrate that there is no generic answer. And it's a really interesting study - I wouldn't have thought there's room for new players in a densely packed landscape but I'm wrong and, on further analysis, you realise that in this particular area there is 90 years of public domain development against 20 years of residual exclusivity. And even the report suggests that modern safety razor innovation basically only involves adding another blade anyway. The overview also notes that thickets can be in any technology area (and of any level of maturity), shared by few or many players, can include pending patent applications and are not a new phenomenon: the US government had to intervene after the First World War to stop the aeroplane industry being stumped by litigation. 
Perhaps the biggest problem of this overview is the use of the term "thicket" itself: the report says it is descriptive but adopts the definition: "a dense web of overlapping IP rights that a company must hack its way through in order to actually commercialise new technology". This isn't descriptive, it's pejorative, and we don't need an informatics team to tell us such things are bad.
But the report definitely merits a read and is both interesting and ultimately reassuring that the underlying issues are being looked at broadly and with balance, not forgetting history or current stories either. The question is well framed, therefore; the solution, meeting the express aims, trickier. There's a whole thicket of issues to hack through first".
The IPKat wonders how much thought has been given to the impact of patent thickets on the public domain itelf. Presumably the more a field is clogged up and impenetrable on account of a dense web of overlapping rights, the easier it must be to enter that field once the thicket has tumbled into the public domain.

Thicket here; thinnet here

1 comment:

MaxDrei said...

In the "Thickets" Paper, I like the first para in Section 5.2 on page 30, which notes that "if a company flooded the market with lots of patent applications" (note the unintentionally ironic "if") well then those wishing to enter the market would be faced with "uncertainty" as to what would be the scope of any claims that might issue. However, we are told, "further work is needed" to find out "whether this issue presents a problem". The further work I would suggest is to toddle off and ask Alison Brimelow what she knows about this issue. Would she advocate a UK-style cap on the years a patent application (and its divisionals) can be permitted to remain pending, ungranted?

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