Patent Thicket

patent war

A patent thicket is ‘a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology,’ or, in other words, ‘an overlapping set of patent rights’ which require innovators to reach licensing deals for multiple patents from multiple sources.’ The expression may come from the ‘SCM Corp. v. Xerox Corp’ patent litigation case in the 1970s, wherein SCM’s central charge had been that Xerox constructed a ‘patent thicket’ to prevent competition. Patent thickets are used to defend against competitors designing around a single patent.

It has been suggested by some that this is particularly true in fields such as software or pharmaceuticals, but Sir Robin Jacob has pointed out that ‘every patentee of a major invention is likely to come up with improvements and alleged improvements to his invention’ and that ‘it is in the nature of the patent system itself that [patent thickets] should happen and it has always happened.’ Patent thickets are also sometimes called ‘patent floods,’ or ‘patent clusters.’

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