Intellectual property rights are increasingly important assets in knowledge-driven, innovative economies. Patents in particular are one of the key drivers behind technological innovation. A granted patent confers on its owner the legal right to exclude others from commercially exploiting the patented invention. In exchange, an enabling disclosure of how to put the invention into practice must be made publicly available. For this reason, patent publications are arguably the best – and often the only – way to get insight into the research & development activities of innovative companies. Analysing this public patent information in order to gain technical or strategic insights is denoted as ‘patent landscaping’. This article explains why patent databases are an invaluable source of technological and strategic information and how patent landscaping can help businesses to capitalize on this untapped potential.
PATENTS ARE A RICH SOURCE OF FREE INFORMATION
In 2018, inventors in Europe and around the world have filed 174,317 patent applications with the European Patent Office (EPO) – the highest number ever (EPO Annual Report 2018). In the same year, a record number of 252,684 international patent applications were filed under the Patent Cooperation Treaty (PCT) system, a unified procedure for seeking patent protection in a large number of countries in a simple and cost-effective way (WIPO IP Statistics Data Center). Still a much larger number of patent applications is filed through national offices; the total number of patent filings around the world exceeded 3.3 million in 2018 (WIPO, “World Intellectual Property Indicators 2019”).
The ever-increasing trend in patenting activity across the world and across technological domains leads to exponentially increasing numbers of patent-related publications. Together, these documents constitute an immense source of valuable information which is, in many cases, not available from any other source. The majority of this information is contained in patents which are not (or no longer) in force, meaning that a vast number of inventions is effectively available for free. And even if a patent is still in force, the information it contains can be freely consulted, and – under certain conditions and limitations – used for research and development purposes.
PATENT LANDSCAPING: GENERATING INSIGHTS FROM PATENT DATA
Patent landscaping is an umbrella term covering the different means for generating useful insights from patent-related data. The enormous size of the dataset, together with the complexity of patent procedures, makes patent analytics for landscaping challenging. Fortunately, all major patent offices strive to make the huge amount of patent documents conveniently accessible to the public. For example, the EPO as well as the World Intellectual Property Organization (WIPO) maintain excellent patent databases and provide advanced searching possibilities to explore the data. Moreover, they have developed powerful and free machine translation services providing automatic and reasonably high-quality translations of patent documents. This means that, for example, an innovative European company working on a new generation of more efficient solar cells can conveniently locate and access technical details of the latest solar cells developed by colleagues and competitors abroad, even if the colleague or competitor’s inventions are only disclosed in a national patent application in a foreign language.
A freely available tool which is worth mentioning is The Lens, available at www.lens.org. The Lens is provided by Cambia, an independent non-profit organization dedicated to democratizing innovation. The software is user-friendly and provides several powerful analysis options, including a number of advanced tools for searching and analysing biological sequences disclosed in patents. For a comprehensive discussion on other useful tools, the WIPO manual on open source patent analytics is a good starting point (available at https://wipo-analytics.github.io/).
TECHNOLOGICAL INSIGHTS: STEERING R&D
A technological patent landscape creates a clear overview of the patents within a certain technology area, optionally filtered for certain jurisdictions, applicants, inventors or other parameters. It also provides a good view on the state-of-the-art within a certain technological domain. The technology area may be defined from very narrow (e.g., ‘thin-film solar cells’) to very broad (e.g., ‘environmental technology’), depending on the type of questions you are trying to answer. While evaluating one’s position within the technological landscape may seem a mere academic exercise at first, it may in fact help companies take important decisions such as how to spend their R&D budgets. Indeed, the EPO has once estimated that up to 30% of all R&D expenditure is wasted on redeveloping existing inventions (EPO, “Why researchers should care about patents”, 2007). Take again the above example of a European innovator developing new solar cells. If a Chinese competitor is working on a similar technology and has already described a successful prototype solar cell in a patent application, it is crucial to become aware of this information in order to reconsider the research project, for example by using the Chinese prototype as a starting point for further innovation.
Considering the technological landscape may also help companies decide on new directions where R&D efforts should be headed. For example, landscaping may uncover opportunities for further innovation, also called “innovation gaps” or “white-space”. The European solar cell innovator introduced above could, for example, stumble upon some patent applications describing a new and promising semiconductor material which has not yet been used in solar cells. Based on this information, the company could decide to start a project to investigate the potential of this new semiconductor material for use in solar cells. White-space analysis is especially useful in crowded markets, where fierce competition exists between several players developing similar products or services.
In conclusion, patent landscaping helps companies to uncover information which is essential for devising and pursuing a successful R&D strategy. Analysing the technological patent landscape will avoid that money is wasted on duplicating R&D and will streamline and accelerate the innovation process.
STRATEGIC INSIGHTS: GATHERING BUSINESS INTELLIGENCE
Patent landscaping not only reveals your position in the technological landscape, it also enables comparing your position with that of your competitors. Information contained in patent documents is often not available elsewhere, meaning that it provides a unique view of the innovation strategies of competitors. Even though most companies are probably aware of their major competitors, new players will likely first appear in patent databases. Such a competitive patent landscape may benefit companies pursuing a proactive or aggressive IP strategy as well as more defensively-oriented ventures. For example, competitive landscapes may reveal third-party patents interfering with the planned launch of a potentially infringing new product. In such cases, follow-up actions are needed. Companies pursuing a proactive or aggressive IP strategy may for example consider taking legal action against these patents to restore their freedom to operate. Defensively-oriented ventures may rather choose to approach the right holder to discuss licensing opportunities.
Patent landscaping may also uncover new opportunities for business development. You may, at an early stage, uncover signals that your competitors are expanding to new geographic or product markets. Analysis of co-applicants can uncover collaborations between companies or between companies and research institutes. Landscaping may also reveal companies working on technologies which are dependent on your own patented technology – such companies are potential licensees or synergistic strategic partners.
Overall, we conclude that patent landscaping is not only important for a successful R&D strategy, but also contributes majorly to an overall successful corporate strategy.
KEY INSIGHTS FROM PATENT LANDSCAPING
- Mapping the state-of-the-art to identify starting points for further innovation
- Identifying new innovation opportunities by finding innovation gaps
- Developing a strategic and strong patent portfolio
- Gaining insight into your competitors’ patenting strategies
- Uncovering new licensing opportunities
- Detecting new players in your field at the earliest possible stage
CASE STUDY: CRISPR/CAS – THE PATENT LANDSCAPE OF A SCIENTIFIC BREAKTHROUGH
CRISPR/Cas genome editing is often touted as one of the greatest scientific breakthroughs of the last decades. CRISPR sequences are short repeating stretches of DNA occurring in bacterial genomes. They were first discovered in the late 1980’s – without any clue towards their biological function. In 2007, food scientists working at Danisco published a landmark paper in Science revealing that CRISPR sequences, together with a family of proteins denoted as “CRISPR-associated” or “Cas” proteins, form part of a bacterial adaptive immune system. This opened the door for the first applications of CRISPR: the researchers immediately realised that the system could be used to tune the resistance of bacteria against invading viruses – a major problem during food fermentations. It was also envisaged to use these sequences for detecting and typing bacterial strains. However, the real breakthrough only occurred when researchers realised the potential of this system for targeted genome editing. Starting with a string of high-profile scientific papers in Science in 2012 and 2013, it has now been established that the CRISPR/CAS bacterial adaptive immune system can be used for high-precision genomic engineering in bacterial, plant and mammalian – including human – organisms.
The disruptive character of new technologies such as CRISPR/Cas genome editing is reflected in their patent landscape. One of the simplest metrics to look at is the evolution of the number of patent publications in time, as a general estimation for overall patenting activity (Figure 1). A mere scientific discovery without any useful application cannot be patented. This explains why no patenting activity is seen until mid-2000, when researchers first uncovered the biological function of CRISPR/Cas. The first CRISPR/Cas-related patent applications came to light in the late 2000’s and were filed by Danisco, aimed at protecting the use of CRISPR/Cas for detecting and typing bacterial strains and for modulating resistance against invading viruses – in line with the just-discovered biological function of the system (Figure 1).
Together with the realisation of CRISPR/Cas as a disruptive genome editing technique came patent applications aiming to obtain broad protection for CRISPR/Cas molecules and the use thereof for genome editing. Other researchers across the world and from different fields soon realised the massive potential of the technique, leading to a startling growth in the number of new patent applications which is continuing up to this day. These later patent applications are often directed at specific applications as well as further improvements and adaptions of the original CRISPR/Cas technique (Figure 1).
FIGURE 1 - CRISPR/CAS PATENT PUBLICATIONS IN TIME
- Danisco, 28 April 2004
“Detection and typing of bacterial strains”
- Danisco, 2 March 2007
“Cultures with improved phage resistance”
- Institut Pasteur, 28 December 2007
“Molecular typing and subtyping of Salmonella by identification of the variable nucleotide sequences of the CRISPR loci”
- Univ California, Univ Vienna, 25 May 2012
“Methods and compositions for RNA-directed target DNA modification and for RNA-directed modulation of transcription”
- Broad Institute, MIT, Harvard, Rockefeller Univ, 12 December 2012
“CRISPR/CAS component systems, methods and compositions for sequence manipulation”
- Harvard, Children’s Medical Center, 4 April 2013
“Therapeutic uses of genome editing with CRISPR/Cas systems”
Specific applications and technology improvement
- Intellia Therpeutics, 30 March 2016
“Lipid nanoparticle formulations for CRISPR/Cas components”
- Univ Duke, Editas Medicine, 5 May 2016
“CRISPR/Cas-related methods and compositions for treating Duchenne Muscular Distrophy”
- Harvard College, 27 February 2018
“Evolved Cas9 variants and use thereof”
Figure 1 – CRISPR/Cas patenting activity through time.
The graph shows the number of patent publications mentioning “CRISPR” or “Cas9” in the title, abstract or claims from 2004-2018. The strongly increasing patenting activity is typical for disruptive technologies. Patenting activity related to CRISPR/CAS can be divided in three stages: early applicants, genome editing applications, and specific applications and technology improvements. Representative patent applications from each stage are shown (for illustrative purposes only). The dates mentioned are the earliest date on which the invention was first filed. Publication typically takes place 18 months after this date.
Figure 2 displays some other types of information that can easily be collected during patent landscaping. Of all CRISPR/Cas patent applications in our dataset, 86.8% is alive – meaning either granted or pending, and the remaining 13.2% is dead – meaning either refused, abandoned or revoked (Figure 2A). When comparing the number of granted patents among different jurisdictions, it becomes clear that the United States of America are leading the pack, with more granted patents than China, EPO, Australia and Japan combined (Figure 2B). It is interesting to note that this observation can, at least partially, be explained by the rapid turnaround time of CRISPR/Cas patent applications at the United States Patent and Trademark Office (USPTO): the median time to grant is 772 days, way ahead of the patent offices in China (1068 days), Australia (1480 days), Europe (1615 days) and Japan (1644 days) (Figure 2C). The USPTO is also the patent office where most CRISPR/Cas-related applications are filed (Fig 4D), followed by the WIPO, China, the EPO and Canada. The flow diagram of Figure 4D likewise reveals that a large fraction of US patent applications has proceeded to grant. This kind of information can be very helpful in devising an optimal filing strategy and deciding in which countries to pursue patent protection.
A - STATUS
B - NUMBER OF GRANTS
C - TIME TO GRANT (DAYS)
D - PATENT APPLICATIONS
Figure 2 – Selected CRISPR/Cas patenting statistics.
(A) Fraction of CRISPR/Cas patents and patent applications that is ‘alive’ (granted or pending) and ‘dead’ (refused, abandoned or revoked).
(B) Top 5 jurisdictions for number of granted patents.
(C) Distribution of time to grant for the 5 jurisdictions with most granted patents.
(D) Flow diagram showing the top 5 patent offices for number of patent applications, and the fraction of applications that has proceeded to grant, is dead, or is still pending. Note that no status is shown for international applications filed at WIPO, because they have to be converted to national/regional applications in order to proceed to examination or grant.