Archive for corporate
I’ve noticed that many companies tend to emphasize patents in their IP strategy. Sometimes that’s almost all they consider. Sound IP strategy, however, requires applying a variety of tools. A broad approach to intellectual assets is more important than ever. Patents of various kinds, trademarks, trade secrets, copyright protection, and low-cost publications can all play a useful role.
Utility patents can protect your products, their components, the machines for making them, the methods of making them, and methods of using them, among other things. Design patents can protect aesthetic elements. Copyrights can protect commercial expression (ads, for example) of that function. Trademarks protect the brands that are based on the consumer perception of the product. Packaging relevant to your products may also be protected with utility patents, design patents, trademarks, and copyright.
The power of trademarks in protecting a company is illustrated in a recent case involving Adidas, owner of trademark for a tennis shoe with three stripes on the side. In May 2008, an Oregon jury ruled that Payless Shoes should pay $308 million to Adidas for infringing that trademark. (Payless appealed but subsequently abandoned its appeal after agreeing to an out-of-court settlement with Adidas.) Payless may have hoped to evade the three-strip trademark of German-owned Adidas by using four stripes, but Adidas successfully argued that their stripes create a distinctive mark that is a sign of origin, and that both two-stripe and four-stripe shoes may cause confusion in the minds of consumers. Three simple parallel stripes have become a distinctive part of the Adidas brand. This coverage may last as long as the brand does, unlike the limited coverage afforded by patents. Adidas, of course, relies on both utility and design patents as part of its IA strategy.
In recent years, U.S. trademark rights have been expanded to cover not just traditional logos and names, but to also cover colors, scents, characteristic sounds, and three-dimensional shapes. Examples include:
- Yamaha’s distinct water spout from its WaveRunner® personal water craft. As U.S. Trademark 74321288 states, “The mark is comprised of a three-dimensional spray of water issuing from the rear of a jet propelled watercraft and is generated during the operation of the watercraft.”
- Tiffany’s famous robin-egg blue gift box (US Trademark 75360201).
- Intel’s five musical notes (US Trademark 78721830).
Trademarks can have an unlimited life, unlike the 14-year-life design patents have from the date of filing, or the 20-year life of regular utility patents. Under U.S. law, trademarks can be used to sue both manufacturers and distributors of infringing products.
We recommend that innovators look for creative combinations of both trademarks and patents, as well as other forms of intellectual assets.
One of those other forms can be called “digital intellectual assets,” a broad category that includes domain names. They may be trademarked, but if you don’t own the domain name, you’ll have an expensive battle trying to wrest it from someone else. As soon as you consider candidates for trademarks, quickly register the related domain names. Also consider getting the related Gmail accounts, Facebook accounts, Twitter accounts, Youtube channels, Pinterest accounts, etc. Those are free or inexpensive and can be worth a great deal if your brand name becomes important.
At the IP Business Congress Asia 2014 (IPBC Asia 2014), a collection of IP experts from around the world are here in Shanghai, China sharing best practices and advice to help fellow IP workers. Yesterday during a panel discussing ways to build a world-class in-house IP team, a comment from the audience provided a valuable example of how management can stimulate innovation in a company inexpensively. At Aruba Laboratories, a social event was held in which a number of people cam wearing a T-shirt that said “Thought Leader.” Before the event, such T-shirts had been ordered for every person who had submitted an invention disclosure in the past year. There was buzz about what the T-shirts might mean and why some were wearing them. Then an executive spoke and congratulated those with the shirts, explaining what they meant. This simple, inexpensive act of recognition created an incentive to submit invention disclosures, which more than doubled that year. A 200% increase in invention disclosures shared–that’s a great return for a small amount of effort.
It’s important that management work to consistently recognize and show appreciation for the innovators in the company. It doesn’t require large bonuses, though I recommend that cash incentives also be used to recognize IP creation. Creating a culture of innovation above all requires the attention of management and leaders throughout the company.
There are many other issues to consider. For example, the attitude of the Legal Department in interacting with inventors can affect inventor attitudes for good or bad. When IP attorneys are aloof and bureaucratic, it can be a barrier. When they interact regularly with innovation teams and get to know and like the potential innovators of the company and take simple steps to encourage them, this can draw out important contributions. Facilitate innovation. Small things can become big barriers or big incentives. Pay attention to these factors and constantly gauge the health of your own innovation culture.
A small start-up company fighting one of the great giants of all time: it’s a classic story of David vs. Goliath, or in this case, David vs. Googleliath (a.k.a. VSL vs. Google).
Many small companies have claimed that Google misappropriated trade secrets or other IP, but rarely has Google graciously (and accidentally) cooperated in providing smoking-gun evidence the way they apparently did for Vedanti Systems, Ltd. (VSL). In this case, they allegedly left sticky notes on VSL’s trade secret materials showing their questionable intentions to take Vedanti’s technology. If VSL prevails against this giant, it may be more a case of Googleliath falling on its own sword than David being great with a sling.
VSL and their partners are now suing Googleliath for infringement of patents and theft of trade secrets in two courts. The suits are against Google (here also known as “Googleliath”) and their subsidiairies, YouTube and On2 Technologies. London-based Vedanti Systems Limited and their U.S.-based parent, VSL Communications, Inc., have turned to Max Sound for help in enforcing IP rights. The patent suit was filed in U.S. District Court for the District of Delaware, while the trade secret suit was filed in Superior Court of California, County of Santa Clara.
The complaints claim that Google executives met with Vedanti Systems in 2010 to discuss the possibility of acquiring Vedanti’s patented digital video streaming techniques and other trade secrets. Vedanti’s compression technology for streaming audio and video files is far superior to what Google had, Google’s own standards for streaming video t the time led to “jittery, low-quality video and sound for large-sized video files,” according to the patent complaint.
As part of the talks with VSL, Google had access to trade secrets such as VSL’s proprietary codec for encoding and decoding a digital data stream. That codex has proprietary techniques for “key frame positioning, slicing and analyzing pixel selection of video content to significantly reduce the volume of digital video files, while minimizing any resulting loss of video quality.”
Shortly after the negotiations began, Google allegedly began implementing VSL technology into its WebM/VP8 video codec, applying what they had learned from VSL but not letting VSL know. The WebM/VP8 video codec is extremely important for Google. It is used in many of their services and websites including YouTube.com, Google TV, the Android operating system, and Chrome web browser. They had inferior technology, but by allegedly stealing Vedanti’s, they were able to quickly advance their business at virtually no cost.
There’s just two pesky little problems for Google:
1. Vedanti has patents for its technology and is not afraid to sue. Now you might see why Google seems to really hate software patents (rather, other people’s software patents). They have been a leading force in some of the patent reform measures and related steps that have made protecting IP rights harder than ever for little guys like Vedanti. This giant, with its easy access to the White House and many other influencers, has also been an important voice against software patents, and may have helped influence popular opinion and the courts into recent devastating attacks on software patents. But Vedanti’s patents are still alive for now, so Google has cause for concern.
2. Google seems to have assisted VSL’s case by returning VSL’s trade secret materials with tell-tale sticky notes all over them showing their intent. Huh? This is really an amazing part of this story.
When the VSL Google talks ended, VSL demanded the return of its files. The returned documents were covered with incriminating Post-it notes that had apparently been left behind by Google employees. Attorney Adam Levitt claims that the notes said, among other things, that Google might possibly be infringing VSL’s then-pending patent and that Google should “keep an eye” on VSL’s technology and sweep it into a Google patent. In addition, notes warned Google engineers not to be caught “digging deep” and to “close eyes to existing IP.”
The complaint alleges that Google began to amend its preexisting patent applications and file new applications using VSL’s technology. Then in early 2012, VSL noticed that there were significant improvements to the video quality of Google’s Android operating system as well as other Google software. In June, the staff at VSL analyzed Google’s publicly available code only to discover that the code contained VSL trade secrets. Levitt asserts that the “Defendants’ theft of VSL’s trade secrets pervades virtually every website and product offered by defendants.”
“The use of new technology by established companies should be based on original creation and innovation,” said Adam Levitt, head of Grant & Eisenhofer’s Consumer Protection practice, who is representing the plaintiffs. “Vedanti Systems created groundbreaking digital video technology — technology that has forever changed the way that video content is streamed and displayed over the Internet.”
The lawsuits allege that Google willfully infringed Vedanti Systems’ patent and did so deliberately and knowingly, while recognizing the serious shortcomings of their own video streaming capabilities prior to the infusion of stolen IP.
Whether the suit will succeed or not remains to be seen, but I find Google’s lapse in leaving sticky notes on the borrowed materials to be rather hilarious, if it is true. One thing is for sure: If Vedanti’s allegations are factual, their chances of seeing some degree of justice are vastly greater by virtue of having a patent than if they did not. Software patents are essential for protecting innovations in the hugely important arena of information technology. This is the Knowledge Economy, folks, not the Iron Age. Economic growth and progress is more likely to come from advanced software and IT innovations than from hammering out better cogs and gears, and we need an IP system that understands this. Most judges and politicians ranting against software patents or patents in general do not understand this. Recent ruling that make many software innovations not even eligible for patents show that we have judges and influencers very ignorant of the physical nature of information and computer systems. Innovations like those of Vedenati are not tantamount to mere abstraction and mental exercises. They should have just as much right to be considered for a patent (provided they are novel, nonobvious, and useful) as any tool wielded by or widget hammered out by an innovative blacksmith.
Software patents matter, and they are vitally important for the best innovators of our day if they are to stand against the anti-patent giants that want anything but a level playing field. VSL vs. Google, or David vs. Googleliath, is a compelling reminder of that.
VSL’s patents in Europe are already causing pain for Google. Here is an excerpt from “Court Seizes Google’s Infringing Android Devices in Germany at IFA,” Stockhouse.com, Sept. 11, 2014:
SANTA MONICA, CA–(Marketwired – September 11, 2014) – VSL Communications, creators of Optimized Data Transmission technology and Max Sound Corporation (OTCQB: MAXD) (MAXD) creators of MAX-D HD Audio solutions, have been granted multiple preliminary injunctions from the District Court Berlin against OEM’s (Original Equipment Manufacturers) to stop the sale of certain Google Android devices in the Federal Republic of Germany at the Premier show IFA in Berlin (Internationale Funkausstellung, http://www.ifa-berlin.de/en), the world’s leading fair for Consumer Electronics and Home Appliances).
Max Sound, under agreement with VSL Communications, is enforcing intellectual property rights on VSL’s behalf and has obtained preliminary injunctions against Shenzhen KTC Technology Co. Ltd and Pact Informatique S.A., France. German Customs authorities further inspected several other exhibitors of smartphones and tablet PC’s with Android operating system. Shenzhen KTC Technology Co. Ltd. is one of the largest Chinese electronics groups operating worldwide, and Pact Informatique is a French electronics company operating in many European countries under the brand Storex. Max Sound’s actions were based on infringement of VSL’s European Patent EP 2 026 277 concerning an Optimized Data Transmission System Method. The Infringement was found on the basis that Google’s Android OS implements the H.264-Standard for video encoding, which is protected by VSL’s patent. A bailiff seized all smartphones and tablets of KTC and Pact at the trade fair IFA in Berlin on September 10, 2014. The injunctions have no automatic time limit, and opponents can file an opposition.
So what will Google do? For starters, I’m predicting we’ll see VSL and their allies soon being called some kind of “troll.” I also think we can rely on Google’s friends at the USPTO and beyond to find all sorts of reasons why Vedanti’s patents aren’t even drawn to patent eligible subject matter, regardless of how novel they may be. But the trade secret case is where I think tiny Vedanti might have a fighting chance, thanks to Googleliath’s cooperation with the sticky notes. Who said IP law wasn’t entertaining? Weird Al could have a lot of fun with this story. Suggestions for what tune to use in his spoof?
Note: The US cases referred to are captioned as: Vedanti Systems Ltd. and Max Sound Corp. v. Google, Inc., YouTube, LLC, and On2 Technologies, Inc., No. 1:14-cv-01029 (D. Del., filed Aug. 9, 2014) and Max Sound Corp., VSL Communications Ltd., et al. v. Google, Inc., et al., No. 114-cv-269231 (Cal. Sup Ct.).
- Max Sound Corp. Files Two Lawsuits Against Google, Accusing Search Giant of Misappropriating Proprietary Digital Video Streaming Technology (PRNewswire.com)
- Story at Yahoo! News
- Android Devices Seized in Europe (Stockhouse.com)
- Originally posted at JeffLindsay.com
One of the great innovation killers in the Corporate world is the traumatic change that can come with a merger and acquisition. Through rough handling and several forms of neglect, some of the brightest would-be innovators for the transformed company can be driven out or, if they remain on board, turned from enthusiastic contributors to bitter observers.
Those who generate IP or have the best potential to do so need special attention during M&A activity. They need to be considered carefully during due diligence, but that often does not happen. If there is one well-known star who is the obvious source of an important product line, perhaps he or she will get careful attention, but a larger body of innovators easily be left out of the picture and damaged in the transition.
These problems can even happen during internal changes in the company, when perhaps one unit is moved to a different sector. In large companies especially, different business units may have different cultures, so the joining or moving of one group to another area in the company can be just as difficult for some as if they had been acquired by a strange outside group. Alienation and loss of trust can easily occur as things that were viewed as promised and commitments from the company are suddenly changed, or as appreciative management suddenly becomes newly skeptical and sometimes even hostile to the innovation efforts that were underway from a creative team.
I know of one case in one of the world’s most highly praised companies where a large team of creative, productive people fled after their unit was moved to a different group. The intent was to keep them and maintain their innovation work, but out of over several dozen talented people, only two or three chose to stay. Many left en masse after a few weeks because they found the new environment to be hostile. This was a tragedy that set that company back significantly in a key market. Foolish and unnecessary.
How can such bleeding be reduced when there is major change? Here are some tips:
- First, take an inventory of the creative potential of the units being affected. What kind of IP is being generated? Who are the generators? What are the incentives they have worked with? What is the innovation climate?
- Talk with IP generators during the transition. Have a meeting aimed at understanding innovation and keeping innovation alive. Let them know they matter. This should apply to all affected people, but there needs to be a meeting worked into the routine where innovation is a special focus.
- Form bridges between innovators in the incoming groups and innovators in the parent organization. Those connections and relationships may be the key to preserving innovation post-merger.
- Beware of the tendency of current managers and directors to treat incoming groups with skepticism and disrespect. Monitor this carefully and tolerate no bad behavior. This involves regular communication with affected groups. Pay attention and be ready to make further changes to keep innovation alive.
There is no need to lose the hearts and minds of bright people coming into your organization. No need to turn them off and create enemies from those who should become your allies. Attention to the tenuous bonds that link employees to their employers can keep the relationship healthy and reduce the innovation fatigue that often sweeps through groups shaken by change.
Pictured to the left is my potato peeler/fruit peeler which I purchased in Shanghai. It is dutifully based on the design of typical peelers long sold by Western companies. But I suspect this imitation object was copied and manufactured by people unacquainted with the finer points of peeling potatoes. In peeling potatoes, one frequently encounters eyes or other bad spots that need to be gouged out. Good potato peelers have a curved metal end that can be used for gouging potatoes and fruit. My Shanghai peeler has dutifully copied the general shape of other peelers, with a somewhat pointed tip and a concave surface below it, but the tip is made of thick blunt plastic that is useless in gouging. It is a classic example of imitation without understanding the details of how something works. It can look the same, but the results are disappointing.
The innovation efforts of many companies are like my potato peeler: they imitate what they see others doing, but lack the knowledge and experience needed to make the systems actually work. So we get innovation rhetoric, a temporary budget and Big Program, with consultants sailing in and trying to change employees when the real barriers to innovation may be elsewhere. We get brainstorming sessions that lead to nowhere, momentary IP races that waste resources and leave inventors discourage, innovation funnels that become echo chambers, and improvised staged product launch systems that result in decisions made without adequate knowledge and little hope of success. In some cases it all comes down to instinct and gut feel from an omniscient leader imitating Steve Jobs or some other charismatic innovator, while overruling all logic and leaving a wake of confusion.
Innovation requires experience and deep knowledge. It requires systems and cultures designed with innovation expertise, not just a quick fix and temporary effort to imitate others. Innovation leaders need the support and attention of management at the very top, and systems tailored to enhance the innovation culture across the company. Innovation success is far more difficult that it looks when we are imitating someone who makes it look easy. It rarely is. Real knowledge and real patience are required.
Prisoners of Hope: How engineers and Others Get Lift for Innovating by Larry Vincent is an unusual book on innovation that I found to be a refreshing guide to strengthening innovation with great practical value. Part of what makes this book unusual and, for some, perhaps highly challenging, is that it is written from the perspective of a preacher turned innovation champion, filled with references to biblical material, including frequent passages cited from scripture and analogies, sometimes extensive and detailed, drawn from the Bible. Although I treasure the Bible, initially this approach caught me off guard. In fact, at first I felt the attempt to find practical secular lessons for innovators from Bible stories was strained, even to the point that I initially disliked the book after the first chapter or two. But after a few more pages, I began encountering many valuable insights and modern case studies that revealed the author really did understand the practical challenges of bringing innovation to life, especially in a corporate environment. Once I got past my initial challenges with the unique angle of the book, I found it well worth my time, even inspiring. I still struggle with some of the passages using scripture to explain innovation and its challenges, but others may enjoy that. On the other hand, I was impressed by his application of Ezekiel’s “dry bones” vision in the Old Testament, where the prophet Ezekiel saw a valley of dried bones that became living humans again. His treatment made it a very apt and interesting analogy for the challenges inventors face in breathing life and commercial success into their inventions.
Lanny Vincent understands innovation and the life and challenges of innovators, especially those in corporations. Inventors and innovators are the “prisoners of hope” of the title, people driven and even held captive by their vision of changing the world with their innovation. It is their faith and hope that drives them forward, and this faith and hope allows for many biblical insights to be relevant. Whatever their feelings about scripture, this book can be valuable for them and for those who guide or influence them. Vincent understands how they can be more successful.
Aspects I especially enjoy are the numerous case studies and examples. While many come from the consumer products industry, especially from Kimberly-Clark Corp. where Lanny Vincent had a great deal of industrial experience, the lessons and practical guidance from the author will help engineers, scientists, and other inventors in many disciplines, and may be especially helpful to leaders responsible for innovation and business development. In these case studies, Vincent draws out key lessons to guide and inspire innovators today.
One of my favorite sections is in the middle of Chapter 6, “Inspiration and Appreciation,” where Vincent recounts how we worked with a team of automotive engineers in Michigan to help them innovate in the area of automotive suspensions. As he observed their responses and discerned that they were there because they had to be, not because they wanted to be, he departed from his normal process. He sought a way to help those jaded survivors of extensive downsizing become more inspired about the innovation task before them. He asked them to tell him the basics of the suspension system, including the history of its development. Admitting his naiveté and asking the engineers to share their knowledge seemed to engage them. They were then asked to draw a timeline of the development of related systems and then to characterize major epochs of the timeline as if they were historians. Then, in light of the past, how would they characterize the next era of development? They energetically and swiftly responded, and then Vincent simply explained that that was the area where they needed to invent. The invention workshop turned out to be highly productive.
One of the interesting insights regarding corporate barriers to innovation is the tendency for companies to promote successful innovators in their ranks to new positions where their rich innovation experience may be unused or essentially lost. The wheels of innovation are constantly being reinvented in companies as those who succeed are moved away from the field where they were able to create success.
Vincent also calls for corporations keep inventors and innovators close to projects as they become commercialized. There is a tendency in large corporations to hand off new products to others and leave those with the original vision and passion out of the picture by the time consumer feedback is being obtained, but Vincent identifies this as a huge missed opportunity. The inventors and innovators may have exactly the insights and knowledge needed to interpret and apply the feedback from the market, and they should play a pivotal role in refining and adapting the product as it moves forward.
A former technical expert at one of the world’s most famous consumer product companies told me of a hiring decision that made $80,000 for one executive, hurt several careers, cost the company millions of dollars, and crushed innovation in a once-promising unit of the company. This recipe for innovation fatigue has numerous variations, but they all combine poorly considered incentives coupled with selfishness in those who can exploit the incentives at the cost of corporate health.
In this case, the company had instituted an incentive program for senior management to promote its hiring goals. Unfortunately, the result of the incentives was that one executive realized that if he hired a particular unqualified outsider for a key leadership role, he would reach his goal and get a large bonus. On the other hand, if he were to select one of several experienced employees who were ready and qualified for the promotion, he would not get his bonus. He was blunt about that in ordering one of his direct reports to hire the unqualified candidate. “I meet my goal and $80,000 if hire that person. Do it.” The leader ordered to make the hire tried explaining that this position required a knowledge of science, technology, and markets that the unqualified candidate did not have. It required experience that the candidate did not have. It would hurt the company. But none of this mattered. What mattered was an incentive the company was offering, a perverse incentive indeed.
The outsider was hired and proved to be a disaster. Lacking the experience and knowledge needed to make key decisions, the division was run by stalling and passing the buck, with many diversions that wasted the time and efforts of numerous employees. Several highly talented people left in frustration, including one person who probably should have been given a chance to lead the group. Significant innovation projects essentially ground to a halt, a classic case of innovation fatigue and a painful reminder of how poorly considered incentives can harm a corporation.
Perverse incentives that encourage employees to harm the company for their own benefit one of the many factors that can block innovation and entrepreneurship in corporations
Related resource: A excellent business book, “The Science of Success” by Charles Koch of Koch Industries, has a good chapter on incentives that discusses the problem of perverse incentives.
In many large corporations, there’s a painful and frequently repeated scenario of invention theft that we treat in several ways in the book, Conquering Innovation Fatigue. The invention theft I’m thinking of today is not from foreign spies or evil competitors. It is internal theft, wherein a powerful employee or team within a corporation takes credit for another individual’s or team’s innovation. Sometimes the theft is so blatant that a powerful person files a patent in his or her own name, leaving off the name of the real inventor. Sometimes the real inventors are told to drop the project completely and hand over the keys of the new vehicle they have created so that someone else can ride it across the finish line and take all the glory.
When this happened to a truly brilliant man in a large company where I was providing some guidance in the past, I warned him that his kind of behavior was deadly for the future of their company. When people lose trust for their company and fear that their innovations will be stolen, they clam up, shut down their innovation engines, and save their best thinking for someone else, such as their own business one day or a future employer. When people don’t get any credit for what they do, they quit doing. If a company tolerates or even rewards internal invention theft and doesn’t zealously seek to reward true inventors, real inventors move toward secrecy or inactivity and the light of innovation goes dark. This is the fast and easy way to bring your company to your own version of the Dark Ages.
Yes, time travel is easy. You can go back in time by decades or centuries when you crush innovation by allowing it to be stolen from within. Going backwards is surprisingly fast. Once you feel the pain of your mistake, clawing your way back to the modern world might take a little longer than your think. Actual, most companies shrouded in the mists of the Dark Ages never realize what they’ve been doing wrong because they are out of touch with the voice of the innovators within. They can spend a lot on consultants solving the wrong problems and talking to the wrong people and never rebuild the trust they have shattered. When it comes to long-term corporate innovation success, trust between employees and the company is everything.
The new intellectual property book by Nick Nssing, Patents and Strategic Inventing: The Corporate Inventor’s Guide to Creating Sustainable Competitive Advantage (McGraw-Hill, 2013) is a refreshing guide to help inventors and leaders in corporations. It is a collaborative work with a variety of contributors (myself included) providing a few chapters in addition to the excellent core material from Nick.
Nick has many years of inventing and IP strategy experience at Procter & Gamble and Monsanto, where he is currently the Biotech Strategy Lead. He is also founder of Luminosity LLC, a consulting firm focused on new product development and patent strategy for large corporations. He is also an adjunct professor at Washington University. I’ve known Nick for a number of years and have been impressed with his approach to IP strategy and his business sense when it comes to IP.
This book provides a rich variety of material to help corporate inventors. Too often corporate inventors just sit back and let the attorneys handle everything, but Nick’s book shows that much better results can be achieved when the inventors are educated in patent strategy so that they can invent more strategically and work with the attorneys more effectively.
Part 1 offers a sound introduction to patentability, patent searching, and the role of the corporate inventor, and then explores patents in light of the America Invents Act. Many highly practical nuggets are there such as Chapter 9, “Working with Your Attorney: Nine Steps to a Better Utility Patent,” which offers insights from Byron Olsen, assistant general counsel at Monsanto. This section provides very practical information including a recommendation that inventors work with the attorney to “superinvent,” adding new concepts and uses for the invention to greatly broaden and strengthen the patent.
Part 2 deals with Patent Strategy, followed by Part 3, “Strategic Inventing.” These two sections get into more advanced topics such as building portfolios, analyzing landscapes, life-cycle management of IP, disruptive innovation (that’s my chapter: “Intellectual Property and Disruptive Innovation: Strategies, Tactics, and Lessons from China”), TRIZ, and guidance on implementing patent strategy at the project level. Overall, I find the book to be fresh, original, clearly written, and a good example of how one expert author can add value by collaborating with other contributors.
For more information, see the book’s website, StrategicInventing.com.
There’s an anti-patent sentiment in some parts of the public that argues that they are destroying the economy rather than helping. There is particular resentment against non-practicing entities (NPEs), often called trolls, for owning (and typically acquiring large numbers of) patents for products and processes that they don’t actually use themselves. That sentiment, naturally, is most likely to be held by large companies who want to make a lot of money by making and selling whatever they want without some little guy’s patent getting in the way. Trolls with their patents are, we are told, sucking the lifeblood out of the economy. They are especially deadly in the areas of greatest innovation such as software. The related field of business methods is one where the whole concept of patenting is viewed by some as especially dangerous and destructive.
A healthy perspective is now offered by Jeff Wild in his post for IAM Magazine’s blog, “If trolls are destroying US jobs, why is the apps sector booming?” Here is an excerpt:
Last week a shocking report was produced by an organisation called TechNet. Based in the US, it describes itself as “the preeminent bipartisan political network of CEOs and senior executives that promotes the growth of technology-led innovation”. Where the Jobs Are: The App Economy claims that more than 450,000 app-related jobs have been created in the US during the last five years and that the app economy could now be generating annual revenues of up to $20 billion. What’s more, there seems to be no sign of a let-up in the good news. “In the year ending December 2011, the average number of tech want ads containing the word ‘app’ was still 45% higher than the previous year. That’s rapid expansion by anyone’s standards,” the report states.
As I say, it’s shocking stuff. For those of us who remember the multiple news stories and blog pieces during 2011 that focused on NPEs such as Lodsys taking action against app developers in the US, the idea that the sector is actually booming and creating jobs at breakneck speed is hard to comprehend. Weren’t the “trolls” supposed to be destroying a nascent industry and driving jobs and dollars away from the US? How can it possibly be that the reverse seems to be happening? Indeed, how can a serious report on the American app sector not mention NPEs or trolls at all?
Surely, it must be an amazing oversight. Or perhaps not. Maybe all the outrage and doom-mongering last year was overhyped hysteria. Maybe the reality is that NPEs, or “trolls”, or whatever you want to call them, are really not a decisive issue in the app economy at all. And maybe that applies to NPEs and trolls generally: in the great scheme of things, they are not a big deal.
In a piece published by Forbes last week, Ken Lustig, head of strategic acquisitions at Intellectual Ventures, points out that the number of patent suits initiated in the US has remained relatively flat for the last 10 years and that only around 100 actually go to trial. What’s more, there is much less patent litigation now than there was in the 19th century, supposedly a golden age of American innovation. Indeed, says Lustig, revered names such as Thomas Edison used the NPE model to diffuse their inventions and grow rich. What is being reported today in such dramatic and negative terms is what has always happened in the US when new technologies appear:
Every major technological and industrial breakthrough in U.S. history—from the Industrial Revolution to the birth of the automobile and aircraft industries and on up to today’s Internet and mobile communications revolutions—has been accompanied by exactly the same surge in patenting, patent trading, and patent litigation that we see today in the smartphone business. This is how the rights to new breakthrough technologies have always been distributed to those best positioned to commercialize them—to the benefit of the whole nation in terms of new jobs, new medical advances, and new products and services.
He also summarizes the important research compiled by Michael Risch of the Villanova University School of Law. The bottom line is that both sides in the debate about NPEs have made mountains of molehills, though the defenders of NPEs do have a valid point in one particular area: “the evidence does support one defense of NPEs: they provide a better way for individual inventors to enforce their patents than bringing lawsuits themselves.”
NPEs don’t just include patent aggregators like Intellectual Ventures or Acacia. Universities and numerous lone inventors are often not (yet) in the business of producing and marketing goods but have significant inventions to market. Based on the research about the impact of NPEs and their patents, there is no need for alarm and no need to revise patent laws to stamp them out. Doing so could stamp out the fires of innovation that have brought us out of the stone age into the booming knowledge economy. IP needs to be protected and nurtured, not vilified and weakened. And certainly not discouraged with much higher fees at the USPTO, which the current Administration is proposing. Taxing innovation and other steps that discourage inventors by making it harder to protect their inventions are far more likely to suck the lifeblood from the economy than the existence of NPEs. More innovation fatigue is not what this economy needs.