I have a guest blog posting up on Intellectual Ventures’ blog on why a patent war — or “patent thicket” in scholarly parlance — cannot be defined solely in terms of the number of patents involved in the legal and commercial conflict.
As an aside, this issue is important because I keep hearing from some quarters that historical patent wars, such as the Sewing Machine War of the 1850s, weren’t patent thickets for precisely this reason; that is, relative to the number of patents involved in the “smart phone war” today, there were simply too few patents involved in these earlier legal conflicts for them to be identified as “patent thickets.”
For instance, Professor Mark Lemley made this point in a comment to my recent blog post, Today’s Software Patents Look a Lot Like Early Pharma Patents. Although this short blog posting addressed only how software patents and early pharma patents were both accused by famous judges of being too complex or too vague for the courts to handle efficiently, Mark instead decided to make the tangential comment: “Um, except for the part where there were 250,000 pharmaceutical patents covering the same product.” (This was made on Facebook, and so, sorry, no link.)
Pofessor Michael Risch has a great blog posting on why the oft-repeated claim that there are 250,000 patents covering each smart phone is overblown, especially as this statistic is used in the increasingly overheated rhetoric in today’s policy debates in which many people are treating as settled fact that there is a so-called “software patent problem.”
But even if Professor Risch is wrong and there are in fact 250,000 patents covering each smart phone, this would still not justify the claim that the number of patents is the primary cause of today’s patent war.
I often heard this point from my fellow academics when I was researching my article on the Sewing Machine War of the 1850s — that things are somehow different today because there are lots more patents covering the same commercial product — and thus I specifically address this issue in my paper. In fact, I spent several pages discussing this issue and why the premise “thousands of patents = patent war” is profoundly mistaken.
Given the prevalence of the “250,000 patents cover each smartphone” and similar claims today, though, I realize that it’s an important enough point to carve out these several pages and reproduce them in a blog posting (so that people don’t have to sift through a 50-page article to find it).
So, as I said, check out my guest blog posting at IV’s blog, and poke around there a bit to learn more about the cool things that IV is doing with the patented innovation that it creates, acquires and licenses.