IP Finance received this piece from Keith Mallinson (WiseHarbor) two days ago but has only just been able to post it.
Seeing the Wood for the Trees: UK IPO Keeps Hacking away at Patent Thickets
The UK IPO published its report entitled
A Study of Patent Thickets
on 30 July 2013. In its
IPO Facto blog review of the report,
the
IPO’s blogger draws the correct conclusion
that UK firms are not negatively affected by so-called “patent thickets”, and
that the “forest” is, in fact, “thicket-free”. However, the IPO’s report and
the blogger’s other comments about it are not so benign; even though the
report’s specific conclusions on the UK and SMEs are rather unclear, buried,
lacking in the use of plain English and couched in economist-speak caveats. I
wonder if the IPO might be trying to distance itself from its own report’s dubious
findings through this blog?
I analysed an October 2012 version of this report and related
issues
here
in February 2013. The link I provided to
the former report version, subtitled “Final report prepared for the UK
Intellectual Property Office”, is dead now. In my IP Finance posting I remarked
that the report lends convoluted and qualified support to the notion of patent
thickets and theories of resulting harm.
Its inconclusive 2011
report on the same matter also examined whether patent thickets are a
“barrier to entry into patenting for UK enterprises, in particular [SMEs].”
SMEs can, and in many cases actually do, fare pretty well for
themselves in this emotively-described ICT domain where there are many
complementary patents. SSOs enable SMEs and others to create standards, license
SEPs on FRAND terms and develop products. UK companies and UK SMEs in
particular have a lower propensity than their US or large company counterparts to
patent anything. Patent thickets are not the reason for that.
Comment on this topic is rich in (questionable) analogies, but
weak in facts-based analysis. For example, evidence of problems and harm with patent
thickets, using a single example from outside ICT by Bessen and Maskin (2009)
that was cited by Professor Hargreaves (2011), is weak and inapplicable, as
discussed in
another
of my IP Finance articles.
I also submitted
something very similar to the above as a “Reply” on the IPO Facto blog “awaiting moderation”, on 17 September 2013. It was posted to the
blog on 23 September.
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