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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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Getting Lost in the Patent Thicket Thicket

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One of the many hopeful signs that the Hargreaves team knew what they were talking about was the recognition that patent thickets were an increasing danger in many fields, notably that of mobile technology. One of the actions flowing from the report was to investigate this area further, and now the UK government has released its report [.pdf]:

the current study was initiated with three key aims in mind:

1. to begin to take the debate around patent thickets away from anecdotal and micro-study approach, toward a more generalised methodology by providing a general taxonomy for discussing patent thickets;

2. to generate an automated methodology for detecting patent thickets in published patent data; and

3. to assess whether or not patent thickets present a barrier to entry for companies, particularly SMEs, in the UK.

The phrase “patent thicket” is a descriptive term which highlights issues that new entrants to a market may face when attempting to innovate within, or enter into, a technology space having existing intellectual property rights. The most generally used definition of a thicket is that coined by Shapiro:

“a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology”

Equal weighting is given to fragmented technological areas (areas where there are large numbers of small patent holdings), or areas where there are small numbers of large players with large patent holdings, each of which creates a thicket that any entrants into the area will have to negotiate in order to be able to operate.

The 70-page study investigates all these with commendable thoroughness, and along the way has this rather nice encapsulation of how patents are supposed to work:

Patents contain a series of clear and precise statements setting out the scope of protection required by the applicant. These statements are known as the claims. An oft-quoted definition of the claims is that given by Lord Russell:

“The function of the claims is to define clearly and with precision the monopoly claimed, so that others may know the exact boundary of the area within which they will be trespassers. Their primary object is to limit and not to extend the monopoly. What is not claimed is disclaimed.”

Much like a settler in a technology landscape, a patent applicant stakes their claims to an area of land via the wording of the claims. The claims set out in writing where the boundaries of their “land” lie in the technology landscape, so that others may know and be prevented from trespass. If another settler has already staked their right to the same area then the subsequent settler may not lay claim to the same “land”. In exchange for this granting of an area of “land” or monopoly, the state requires that the applicants disclose how their technology works so that others in the same technology landscape may learn from and develop other related inventions.

However, in order to ensure that the claims are clear and precise, a specific terminology has been developed, which together with the technical language, can result in confusion as to the true scope of the protection provided by the patent to the casual reader. This element can also lead to difficulties in assessing the value of a patent or series of patents, and whether or not action is warranted if a competitor “trespasses” in a protected area. Thus an understanding of a technology landscape in terms of patents is a complex process. If the fact that a single patent database contains over 70 million records is added into the mix, it is easy to see why this assessment of a technology landscape is further complicated for third parties, including new entrants into a marketplace.

This metaphor of a technology landscape, used repeatedly throughout the report, exposes one of the big problems with software patents: they just don't have well-defined boundaries of the kind that the patent system presupposes. As Bessen and Meurer explain in their excellent book, Patent Failure:

the Court of Appeals for the Federal Circuit has tolerated more abstractions in software patents than seems warranted by these patent doctrines. Indeed, it is well known among computer scientists that software technologies (algorithms, system structures) can be represented in many different ways, and it might be difficult to know when alternative representations are equivalent. This means that the technology claimed in a patent can be difficult to distinguish from alternatives; it might be hard to know whether a given patent claims an invention that is different from previous inventions, or whether an allegedly infringing program is different from the claimed technology. If computer scientists cannot unambiguously make these distinctions, there is little hope that judges and juries can do better.

That, in essence, is why any attempt to avoid patent thickets in software is doomed: there will always be overlaps because the abstract, and therefore protean, nature of software means that it can be applied in situations never envisaged when the patent was granted, but which may well be caught by its vague description.

This is not something that the current patent thicket addresses, or maybe even appreciates. And it's symptomatic of the overall lack of any rigorous internal logic to the patent system that the report is forced to conclude:

This report has raised more questions than provided answers. It can be seen that there is no clear consensus on terms used to describe patent thickets and the entities involved with them. By applying these terms consistently it is hoped that further debate on any issues can be conducted on a level playing field.

The indicators appear to show that there is a possibility of different forms of thicket occurringwhere there are different types of technology linked to the degree of maturity of that technology space. These potential types can be subdivided into areas where there are large numbers of small patent holdings, or areas where there are small numbers of big players, each of which creates a thicket that any new entrant will have to negotiate in order to be able to operate. Additional research into more technology areas will serve to elucidate this possible link.

Is there are barrier to entry, in particular for SMEs? Again, the analysis work is not conclusive and further work is required, as discussed in the sections below. However, from reviewing the vast literature and taking into consideration observations made during the analysis it is also clear that there are several other issues which need to be considered.

I think that means they don't know. The fact that even a serious piece of work like the present report can't tease out anything useful from the facts and figures of the patent world is a further indication of how evidence-free this whole area remains. Instead, policy making continues to be based on vague beliefs at best, and dogmatic assertions at worst. No wonder the patent system is in such a mess.

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