Patent Thicket to hinder competition

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The phrase “patent thicket” is used to describe the complexities which an inventor or patent holder must navigate through before actually being able to commercially exploit an invention. The term was originally used in a USA litigation case about forty years ago when SCM brought a complaint against Xerox for creating a patent thicket to hinder any form of competition. The patent thicket has become synonymous with the practice of creating a complicated network of intellectual property rights which prevent healthy competition. As such patent thickets are used as defence mechanisms developed around one registered patent. Often used in the pharmaceutical and software technology fields, but also utilised in other patent fields, the patent thicket is thus an anti-competitive strategy.

The patent holder simply keeps on registering so-called improvements and variations on one patent, making it almost impossible for a competitor to also register a related patent. In this way the company creates a larger monopoly regarding the specific technology. Another term used for patent thickets is that of a patent cluster. The patent holder for instance, registers hundreds of patents around one patent in various countries. It creates a web of patents which can confuse any competitor who has to figure out which patents will expire when and whether there isn’t already a variant registered for the particular patent. Drug companies follow this defense mechanism to prevent generic products from coming onto the market. The patent thicket is often also referred to as a patent flood simply for the reason that the patent field is flooded with patents related to a single patent by one company. The whole practice is frowned upon, but it still occurs.We at Smit & Van Wyk can help you work through patent thickets and thus assist you in registering a patent despite the defensive mechanism in place by a patent holder.