South Africa: Patent Landscape Reporting: A Valuable Instrument For Effective Business Practices

Last Updated: 28 September 2017
Article by Dawid Prozesky

As international and local markets are becoming increasingly interwoven, it is important to appreciate that any sector is more and more susceptible to disruptions resulting from local and foreign technological innovation, directly or indirectly related to a sector. In allowing an understanding of, and anticipating these disruptions patent data provides a critical source of information.

Reasoning for this lies in the fact that the prosecution of a patent to grant can be, and most often is, an expensive process, and therefore pursued at substantial cost to the applicant. Accordingly, it is generally recognised that patent activity by an applicant is an indication of high interest and potentially significant investment in the technology falling within the scope of the patent and the jurisdictions in which a patent is sought. By the logic above, if extrapolated to aggregated broader patent filing trends across a technological field, one would be able to identify possible significant movements in technological and commercial interests in any sector based on patent activity.

An important instrument in facilitating the analysis of patent activity is through patent landscape analysis. This analysis and reporting, in essence, encompasses the derivation of clear and accessible information from large complex datasets on patent filing activity across any sector. An example of the above can be showcased by a recent study conducted by KISCH IP on the healthcare sector, with specific emphasis on the emergence of digital healthcare technology. It was seen that the rate of growth in patent applications relating to digital healthcare technology over the past 3 years is greater than the growth in patent applications relating to healthcare in general. Given that the healthcare sector is one of the fastest growing sectors in terms of patent activity (as seen in Figure 1 below), this implies that digital healthcare could be a major emerging market of interest in terms of research, development and of course investment.

Further to the above, by assessing the content of more than 1.6 million patent specifications filed over the past 10 years in the healthcare sector it was possible, through the development of word mining and modelling algorithms, to identify that developments such as innovation in biosensors, data transmission and remote monitoring technology are major driving forces in effecting technological growth in digital healthcare.

With this said, one has to note that in conducting a patent landscape analysis, it is important to recognise that patent activity is not exclusively governed by commercial interest, but also in part by legal and practical considerations in Intellectual Property laws across various jurisdictions.

An instance of this can be seen in the patent data on software related inventions. Figure 2 shows the trends in software related patent applications as filed at the United States Patent and Trademark Office (USPTO), at the European Patent Office (EPO) and at the Chinese Patent Office (SIPO).

From the above, it is clear that the USPTO received a growing number of software related patent applications up until 2014 due to the eligibility of software related patents in terms of US Intellectual Property legislation. On 19 June 2014, a landmark decision was passed by the United States Supreme Court in the Alice Corporation Pty Ltd v CLS Bank International case which saw to a more stringent approach to patent eligibility of abstract ideas, which is widely considered as impacting software patents, and therefore providing a possible explanation for the declining trend post 2014.

The EPO shows a near plateauing trend since 2000 for software related patent applications, and it could be argued that this is largely as a result of stringent rules on the patent eligibility of software related inventions followed by the EPO.

Compared to the EPO, SIPO shows steady growth in software related patent applications per year due to their fairly tolerant approach to same. As per this example it is clear that one must we weary in drawing assumptions on the above data because, on face value, these patent filing statistics could lead one to incorrect assumptions about software technology markets if not seen in context with developments in case law, legislation and even regulatory provisions.

Consequently, it is evident that it is inadequate to be skilled only in big data analysis, but one has to have an in-depth understanding of a continuously developing international legal environment impacting same in order to accurately understand a patent landscape.

In conclusion, given the current fiscal environment, domestically and internationally, there is great emphasis on the cost-effective development and application of Intellectual Property. In accordance with this, patent landscape analysis can be an extremely valuable instrument in achieving same, and an important consideration for any business aiming to stay relevant in an ever changing global market.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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