Strategic Accumulation of Patents in the Pharmaceutical Industry and Patent Thickets in Complex Technologies – Two Different Concepts Sharing Similar Features

Abstract

This paper discusses the problem of strategic accumulation of patents in the pharmaceutical industry. In the academic legal discussion, this strategy is often confused with the notion of patent thickets. It will be argued, however, that these two strategies, although sharing similar features, are, nevertheless, distant issues and therefore require different analysis. The paper will first discuss the notion of patent thickets in complex technologies, including their definition, factors that contribute to their growth, examples of patent thickets and how the problem of patent thickets in complex technologies is currently being resolved. The subsequent part will analyse the specific strategy of pharmaceutical companies identified by the European Commission as “patent thickets” in its Pharmaceutical Sector Inquiry. It is argued that this strategy of pharmaceutical companies is not, in fact, “patent thickets” according to the classical, traditional meaning of the term, and should, therefore, be detached from the notion of patent thickets. This definition is misleading, and because of the incorrect qualification of this practice by the Commission and the academic community, it has not received adequate analysis under competition law. Therefore, the aim of this paper is to identify what patent thickets are and to dissociate strategic accumulation of patents in the pharmaceutical industry from the concept of patent thickets. It is hoped that the conclusions made in this paper will help to attract attention of the competition authorities to the problem of strategic accumulation of patents for the benefit of the consumer welfare.