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This page is part of the [[Patent Thicket Literature Review]]

thicket_stance_extract={In other words, many closely related patents may cover a single product, mak- ing it much more difficult for competitors to invent noninfringing substitutes. Patent thickets increase the probability of "hold-up" licensing, that is, exercising the ability to charge a premium for patent licenses in the case of technologies in which competitors have already invested heavily. Id. A patent thicket is just one instance of portfolio value, because a group of patents on related technologies can have a value greater than the sum of its parts even if the patents do not create overlapping rights in the same product. Regardless of the particular manifestation of portfolio value, previous research has not cap- tured this aspect of patent value, and we have not ascertained a way to estimate the effect of a patent’s contribution to a portfolio apart from whatever stand-alone value it may or may not have.},

thicket_def={References Shapiro, Quotes Shapiro, Complementary Inputs, Overlapping Patents, Hold-up, Strategic Patenting (Good), Strategic Patenting (Bad)},

tags={IPR Reform, Patent Quality, Sequential Innovation},

filename={Allison Tiller (2003) - The Business Method Patent Myth.pdf}

thicket_stance_extract={Policy makers and industry participants have come to take a positive stance on patent pools, as pools play an important role in leveling the playing field for competition on the downstream production market, reducing transaction costs and encouraging the spread of innovative technology throughout the industry. In view of these benefits, patent pools are seen as indispensable instruments in cutting through the patent thickets in ICT. Indeed, by clearing blocking positions and facilitating access to the technology, patent pools help attenuating the negative downstream effects of patent thickets. On the other hand, as our analysis has pointed out, there is a risk that these positive downstream effects are offset by the fact that patent pools create incentives to exacerbate some of the worrying upstream effects of patent thickets. Indeed, one of the harmful effects of patent thickets is to induce socially wasteful excess investment in patent races and opportunistic patent files, deviating resources away from innovation to rent seeking strategies... },

thicket_def={References Shapiro, Strategic Patenting (Bad), Transaction Costs, Complementary Inputs, Diversely-Held},

tags={Private Mechanisms, Pools, Standards, Firm Strategy, Value from Position/Portfolio},

filename={Baron Pohlmann (2011) - Patent Pools And Patent Inflation.pdf}

industry={Pharmaceutical},

thicket_stance={Pro},

thicket_def_extract={In particular, originator companies confirm that they aim to develop strategies to extend the breadth and duration of their patent protection. One commonly applied strategy is filing numerous patents for the same medicine (forming so called "patent clusters" or "patent thickets"). Documents gathered in the course of the inquiry confirm that an important objective of this strategy is to delay or block the market entry of generic medicines.},

tags={Industry Commentary, Firm Strategy, Defensive/Offensive Patents, Blocking Patents},

thicket_stance={Weakly Pro},

thicket_stance_extract={To meet the challenges that the governance of the European patent system is facing because of the emergence of patent thickets the increasing number of patent applications and patenting for defensive and strategic reasons, three options were recommended. These were: (i) enhancing the patent awareness within the European Parliament; (ii) establishing a European Parliament Standing Committee on Patents, which should be linked with an External Advisory Body composed by experts, practitioners and stakeholders; and (iii) enhancing patent awareness within the Commission.},

thicket_def_extract={Here, the recent boom in patenting observed by many researchers is largely explained not by a firms’ drive to innovate more than before, but by a need to accumulate large enough “patent thickets”. These patent thickets work as a sort of insurance against possible legal actions from other companies. They are in effect therefore, a kind of defensive manoeuvre.For instance, take the situation where company A fears that its products will infringe one or more patents owned by company B. So, by developing and holding a large enough patent thicket company A makes sure that company B will inevitably infringe one of these thicketed patents. As a result, negotiations will follow in order to avoid court action between them, and likely end up with mutual cross-licensing between companies A and B... Defensive and strategic patenting has for instance, in some sectors resulted in patent thickets, the consequences of which are generally undesirable in terms of creating too many, possibly overlapping patents, which can crowd a technological field and make it difficult and costly to navigate through.... making it difficult for new and small inventors to enter the market.},

tags={IPR Reform, Stricter Patenting Requirements, Low Patent Quality, Balance with Anti-trust, Private Mechanisms, Pools, Clearinghouses, Firm Strategy, Defensive/Offensive Patenting},

thicket_stance={Pro},

thicket_stance_extract={Questionable patents contribute to the patent thicket. In the context of a patent thicket, questionable patents can introduce new kinds of licensing difficulties, such as royalties stacked one on top of another, and can increase uncertainty about the patent landscape, thus complicating business planning... For example, a questionable patent that claims a single routine in a software program may be asserted to hold up production of the entire software program. This process can deter follow-on innovation and unjustifiably raise costs to businesses and, ultimately, to consumers.},

thicket_def_extract={This tends to create a patent thicket that is, a “dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology"... Questionable patents contribute to the patent thicket. Much of this thicket of overlapping patent rights results from the nature of the technology;... Moreover, as more and more patents issue on incremental inventions, firms seek more and more patents to have enough bargaining chips to obtain access to others’ overlapping patents.21... In the context of a patent thicket, questionable patents can introduce new kinds of licensing difficulties, such as royalties stacked one on top of another, and can increase uncertainty about the patent landscape, thus complicating business planning. Questionable patents in patent thickets can frustrate competition by current manufacturers as well as potential entrants. Because a manufacturer needs a license to all of the patents that cover its product, firms can use questionable patents to extract high royalties or to threaten litigation...},

tags={IPR Reform, Balance with Anti-trust, Duration Limits, Review of Patent Validity, Firm Strategy, Willful infringement, Blocking patents, Defensive/Offensive Patenting},

thicket_stance={Neutral},

thicket_stance_extract={A further development is that patents gained in value by their ability to be linked with other patents, which encourages patenting of marginal inven- tions. The resulting complex network of single patents that bears many legal pitfalls for patent applicants was given the name ‘patent thicket’ (Shapiro, 2001). These developments put into question an increased number of patents motivated by an increased need for IP protection and hint at the strategic value of patents to have driven the patent surge. To summarize: on the one hand, recent changes in patenting schemes have caused an elevated need for patents as an IP protection tool. On the other hand, they gained in importance as strategic instruments.},

thicket_def_extract={A further development is that patents gained in value by their ability to be linked with other patents, which encourages patenting of marginal inventions. The resulting complex network of single patents that bears many legal pitfalls for patent applicants was given the name ‘patent thicket’ (Shapiro, 2001). These developments put into question an increased number of patents motivated by an increased need for IP protection and hint at the strategic value of patents to have driven the patent surge.},

tags={Firm Strategy, Secrecy},

thicket_stance={Weak Pro},

thicket_stance_extract={For example, the creation of a pool may reduce the need for member firms to create patent thickets by reducing the threat of litigation (e.g., Shapiro 2001; Gilbert 2004).},

thicket_def_extract={We also investigate whether part of the observed decline may be driven by a reduction in lower-quality or “strategic” patents. For example, the creation of a pool may reduce the need for member firms to create patent thickets by reducing the threat of litigation (e.g., Shapiro 2001; Gilbert 2004)},

tags={Private Mechanisms, Pools, Firm Strategy, Value from Position/Portfolio},

thicket_stance={Assumed Pro},

thicket_stance_extract={In short, a poorly implemented numeric proportionality rule would not only fail to satisfy FRAND principles,23 it would also encourage a proliferation of patenting of minor innovations...It would thus exacerbate any worries over patent proliferation and patent thickets, already a hotly debated in the academic literature and popular press. For influential papers on patent thickets, see Shapiro (2001) and Heller and Eisenberg (1998)},

thicket_def_extract={In short, a poorly implemented numeric proportionality rule would not only fail to satisfy FRAND principles,23 it would also encourage a proliferation of patenting of minor innovations...It would thus exacerbate any worries over patent proliferation and patent thickets, already a hotly debated in the academic literature and popular press. For influential papers on patent thickets, see Shapiro (2001) and Heller and Eisenberg (1998)},

tags={Private Mechanisms, Standards, SSOs, FRAND, Licensing},

thicket_stance={Assumed Pro},

thicket_stance_extract={Third, there are patents of low private value and low (or negative) social value; this class of patents includes both discarded, unenforced patents that increase the search costs and risk imposed on commercial firms—the "patent thicket", in popular parlance (Shapiro 2001)—and worthless, largely unenforceable patents usable only for extracting nuisance settlements (see Section 2.2.).},

thicket_def_extract={Third, there are patents of low private value and low (or negative) social value; this class of patents includes both discarded, unenforced patents that increase the search costs and risk imposed on commercial firms—the ‘‘patent thicket,’’ in popular parlance (Shapiro 2001)...},

tags={IPR Reform, Review of Patnet Quality, Infrastructure Changes},

thicket_stance={Weakly Anti},

thicket_stance_extract={One might argue that the rate of innovation or at least of patenting is in fact too high in some sectors, particularly those in which the patent thicket problem is severe. A problem 26 with this argument is that the returns to major innovations would be reduced by collective negotiation, not just the returns to the minor advances that contribute more to patent thickets than to real progress. },

thicket_def_extract={Patent Office has been awarding patents too easily and that US courts have been too willing to uphold the validity of dubious patents.9 To the extent that patent policy inflates the number of patents that must be licensed in order to practice a standard, it contributes to what has beecalled a ‘patent thicket’ through which standard-setting must pass.},

tags={Private Mechanisms, Standards, SSOs, IPR Reform, Balance with Anti-trust, Prevent Hold-up/Royalty Stacking},