Seeing the Wood for the Trees

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 Thicketson 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 herein 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.

SMEs, SSOs and Patent Thickets

In this guest posting authored by regular IP Finance contributor Keith Mallinson (WiseHarbor), Keith considers the allegedly thorny issues with so-called patent thickets. The UK IPO’s October 2012 report entitled “A Study of Patent Thickets” and its inconclusive 2011 report on the same matter examine whether patent thickets are a “barrier to entry into patenting for UK enterprises, in particular [SMEs].” While Keith also finds that the latest IPO report lends only convoluted and qualified support to theories of harm from patent thickets, he presents a variety of empirical evidence showing that thousands of SMEs and many others are, instead, flourishing by virtue of—not despite—extensive IP developments, patenting and licensing of Standard-Essential Patents (SEP)s, and with Standard Setting Organizations (SSOs).

Patent thicket -- or work of art? See "Visualizing patent statistics
by means of social network analysis tools", here

According to Keith’s analysis, the open and standards-based environment for ICT in conjunction with (F)RAND licensing that has developed over the last couple of decades has been very fertile technically and commercially for large and small companies including new market entrants. For example, he cites another IPO report which found from survey results that SMEs in hi-tech, (e.g., including communications equipment), where the patent thickets are supposedly most prevalent, have a significantly higher propensity to rely on patents to protect IP than in other sectors. Keith cites evidence of upstream patenting and contributions to standards by start-ups and SMEs with examples in venture capital and mobile communications at SSO ETSI. Examples of successful market entry for SMEs and others in SEP-based market sectors include video codecs (as required for digital TV), mobile handsets and associated software applications where 500,000 U.S. jobs have been created since 2007. For ease of reading, Keith's contribution (which is rather longer than usual) can be accessed here as a PDF document.