A) Currently, patent thickets constitute one of the most controversial phenomenons in relation to the anticompetitive use of exclusive rights. Essentially, patent thickets appear in so-called ‘complex technologies, where a product or a process depends on many separate components’. The typical features in those technological fields predisposed to their formation have been examined. In this regard, the study of the nature of those patents covered under a patent thicket shows: i) complementary between patents, which carries a risk of monopolization due to the lack of substitutive patents; ii) essential character of patents, which makes difficult to innovate without infringing exclusive rights covered under the thicket; iii) existence of weak patents in the sense of dubious fulfillment of patentability requirements; and iv) the blocking and defensive nature of patents. This last aspect hinders the entry of competitors in the market.
As one of the fields in which patent thickets may occur, the pharmaceutical industry has been closer studied. Concretely, the examination has focused on i) the rivalry between originator and generic companies; ii) the impact of strategic uses of patent rights in final consumers, as well as iii) the damage caused in general health system considered as a supra-individual legal right.
In relation to patent thickets features, it was also relevant to clarify when a patent portfolio constitutes a thicket or, on the contrary, a patent pool. Both are different realities and, therefore, there are different solutions for each one.
B) Following the analysis of this legal figure, the research has focused in the analysis of innovation markets. Other than in traditional markets, in innovation markets there are no actual products or services, but future. They are usually a common propitious setting for the formation of patent thickets, as thickets are frequently developed during the innovation and research process.
The study of competition agreements carried out in these ‘virtual markets’, leads in two fundamental questions: firstly, whether agreements entered into during the innovation stage entail a restriction of competition or, on the contrary, encourage cooperation between future competitors; and, secondly, if they were considered as anticompetitive, how existing competition law standards could be applied in these future markets, since these rules are designed to ensure competition in real markets.
