Archive for economic factors
Among the many barriers to innovation success, one of the most painful and dangerous is rapidly gaining momentum in the United States due to an almost perfect storm of challenges to patent value. I speak of the blight of “efficient infringers,” the many companies, often large and politically influential, who make the cruel calculation that it’s more efficient to blatantly steal intellectual property from small opponents rather than pay for the property they want to use. The victims are the usual suspects, small companies, startups, and lone inventors. I use the word “suspects” deliberately for these victims, for they are suspects in an economic and media climate that increasingly views innovators as a key problem (e.g., “trolls”) for daring to own and perhaps even assert intellectual property against the benevolent titans of Silicon Valley and others who feel they are too big and too entitled to pay for what they take.
In the ruthless calculations of the efficient infringers, they recognize that if their infringing actions are detected, many patent owners won’t have the resources to challenge them in a long, costly battle. They recognize that if they are sued, the abundant new tools they have helped Congress create to kill patents may prevail and eliminate the problem in the USPTO’s Patent Trial and Appeal Board (PTAB), where one keep filing new attacks against the same patent over and over until the judges declare a patent to be abstract or otherwise invalid. The rules are stacked against the patent owner there, and just in case, it’s even possible for judges there to make rulings that favor companies with whom they have obvious connections, as in a former Apple employee making rulings in favor of Apple, with no apparent requirement to recuse themselves for conflict of interest.
If by some chance the patent owner prevails, the owner probably won’t be able to get a permanent injunction against the infringer due to a horrific Supreme Court ruling, Ebay, that removes one of the most important tools a patent owner should have to shut down an infringer. They will just have to pay some reasonable royalties and can avoid the real pain that deliberate infringement ought to bring. So in light of the slight risk of having to pay something to the occasional patent victor, many companies decide they can just do what they wish and treat potential patent losses as the relatively low cost of doing business. Efficient, but ruthless.
Gene Quinn of IPWatchdog.com accurately describes the dire situation in his latest post, “The Great Escape: Efficient Infringers Increasingly Seek to Abuse Antitrust Law.” Read the article and subscribe, for IPWatchdog is one of the most important voices daring to stand up against the anti-patent forces that are causing so much harm to our economy and such ongoing innovation fatigue for those who had the courage to invest in innovation. Efficient theft of the fruits of that innovation will hurt all of us in the end as innovation grows weary.
Under the America Invents Act, the United States Patent and Trademark Office (USPTO) was given broad new powers to “correct” past mistakes in issuing patents through the power given to the PTAB, the Patent Trials and Appeals Board. The PTAB is an administrative law that decides issues of patentability, formed on September 16, 2012 under the America Invents Act. Their impact on patents, innovation, and the US economy has far exceeded anything contemplated when Congress debated this provision. They have become the “go to” route almost anytime significant patent litigation is underway, and the results have been devastating to patent holders. Large numbers of seemingly valuable patents have been invalidated and patent holders have faced huge costs and losses as opponents can launch repetitive assaults that need to be defended at great cost. For many of us in the innovation and IP communities, the term “patent death squad” sadly seems appropriate.
The PTAB consists of numerous “judges” who conduct trials on the patentability of patents that have already gone through years of examination at the USPTO. It’s a painful burden that often results in the USPTO saying, “Sorry — we messed up completely when we granted your patent that you struggled so many years to prosecute. Should never have been issued in the first place.”
But who are these “judges” that are causing such havoc? Gene Quinn of IPWatchdog.com has done some great investigative journalism and revealed that these judges are a far cry from what one would expect in terms of their legal experience. Many have just a few years of experience, which helps explain some of the surprising decisions they have rendered.
See “PTAB Judges Shockingly Inexperienced Compared to District Court Judges” by Gene Quinn at IP Watchdog, March 6, 2018. A short excerpt follows, but see the original article for key data and some incisive comments afterwards.
Inexperienced PTAB Judges
What was most astonishing is just how inexperienced many patent judges of the PTAB are compared to federal district court judges. For example, many PTAB judges were appointed to the PTAB at a time when they were associates, and in some cases junior associates.
This study uncovered several shocking revelations. First, 12.64% of PTAB judges were appointed with less than 5 years of experience prior to their appointment as APJs (i.e., 5 years or less removed from graduating from law school), while some PTAB judges were appointed with as little as 2 years of experience. Indeed, 7.47% of APJs had 4 or less years of experience when they were appointed to the PTAB. More than one-third (36.21%) of PTAB judges were appointed with 9 years or less of experience….
The America Invents Act (AIA) invests PTAB judges with extraordinary powers. For example, overwhelmingly institution decisions are not appealable. Yet, there have been numerous lawyers with shockingly little experience appointed to the position of patent judge, and vested with the power to make decisions that cannot be reviewed by any Article III federal court.
A book on World War II teaches a lesson for today on innovation. In Churchill and Orwell: The Fight for Freedom by Pulitzer-prize winning author Thomas E. Ricks (New York: Penguin, 2017), we learn about some of the reasons England struggled to defend itself effectively in dealing with Germany. A key problem discussed by Ricks was England’s poor state of preparation with inadequate machinery, feeble industrialization, weak supply chains, etc., that made it hard to fight a serious war and led to embarrassing disasters like the rapid loss of Singapore, their supposed fortress in southeast Asia. Close to home in Europe, Britain had a hard time just moving troops around — they often had to walk — and the Brits were amazed at how quickly their American cousins could mobilize when they came to the rescue. Why was England so poorly prepared?
England, as you will recall, was the birthplace of the Industrial Revolution, yet by the time of the War, they were awkwardly behind in many of the basic technologies they would need. How could this happen? Ricks comments are insightful:
Managed by family members more interested in reaping dividends than investing in new machinery and other gear, “British firms were unable to adopt modern, best-practice technology,” concluded business historian Alfred D. Chandler Jr. As a consequence, Britain’s brilliant university research generally did not make the transition into factories. Britain had led the first Industrial Revolution of coal and steam power, but generally sat out the “Second Industrial Revolution” of the late nineteenth and early twentieth centuries, built around oil, chemicals, metals, electricity, electronics, and light machinery, such as automobiles. By the end of the 1940s, it would have neither an empire nor an economy capable of competing with those of other major powers. As Correlli Barnett put it, the reality was that by the time World War II ended, the British “had already written the broad scenario for Britain’s postwar descent to the place of fifth in the free world as an industrial power, with manufacturing output only two fifths of West Germany’s.” Interestingly, Barnett was the keeper of the Churchill Archives at Cambridge University from 1977 to 1995. [Ricks, pp. 203-204]
Something similar happened in China, which once led the world in innovation and GDP, but from the Qing Dynasty until the late 20th Century, in part due to apathetic leaders unwilling to invest in or even open the doors to innovation and technology, China missed out on much of the Industrial Revolution. Only through massive reform and exerted effort in recent decades has China begun its return to a position of global leadership in innovation, IP creation, and economic growth.
In the paper industry, which I’ve been close to for many years, it’s clear that the American paper industry has largely fallen into the same trap that nearly cost Britain its freedom and did cost many lives unnecessarily. The American paper industry has largely failed to invest in new technology and relies heavily on antiquated paper machines and pulp mills that are decades behind what we have in Asia (China and Japan in particular). Their slower, less efficient machines and less efficient plantations put them at a distinct cost disadvantage. Instead of taking steps to compete better, the US industry too often tries to rely on protective legislation to raise tariffs on imported paper and make everyone in the nation pay much more for their paper than they should. The real problem is not Chinese competition, but American businessmen falling into the same pattern that nearly cost Britain the war: focusing on immediate profit and dividends while neglecting the future.
Each industry, whatever it is, needs to build for the future with investment in innovation and a willingness to boldly cope with the threats and opportunities of disruptive innovation. If your industry is dominated with leaders who feel like they can just milk their business as a cache cow with no need to invest in the future, that industry will fail.
China’s housing market is in a bubble, in my opinion, for it seems to display some of the same excesses and questionable behavior that the United States had in real estate shortly before the big subprime mortgage crash in 2007. We have a flood of newly created cash flowing into the market at low interest rates for easy loans. We find unusual business models popping up to exploit the cheap credit and drive up housing prices and housing demand. And we will see rapid changes occur as the bubble pops in some way.
Easy credit from the banks of China and abundant new cash from China’s equivalent of “quantitative easing” have been used in an attempt to stimulate the markets, just as has been done with little success in the U.S., Japan, the European Union and Zimbabwe (before their cataclysmic crash with hyperinflation and economic chaos). Initially much of the new money being created was being used to drive the Chinese stock market. As that bubble popped, rich Chinese looked again to real estate as the traditional safe way to make lots of money. In popular cities, home prices have shot up. In Shenzhen, housing prices show a 57% increase over last year. That’s a ridiculous rate showing something is wrong.
Owners of apartments until recently were not too concerned about rent since they real money were making was coming from rapidly appreciating property values in cities like Shanghai. But with fear that recent rises were no longer going to be sustainable, rental prices are now getting more emphasis. This appears to be driven in part by the very large-scale actions of a giant force, the real estate company Lianjia (United Homes), according to a friend of ours who is a real estate agent. Lianjia has managed to obtained huge capital reserves that it has used to buy up many former competitors, giving them a stranglehold on the real estate market. They are also using large amounts of capital to make loans to customers who otherwise might not be able to afford the down payment of a new property. Further, they are actively working with property owners to push for significantly higher rental values. This increases their commissions and also make landlords happy.
In spite of China’s slowing economy, many renters are reporting significant jumps in rent this year. Our landlord, for example, wanted to increase our rent by 33%. Since we take good care of the place and don’t make many demands, though negotiation, she was willing to sacrifice to help us by just asking for a 24% raise in rent instead. But she has agents from Lianjia calling her and saying she could be getting 33% or even 40% more. This seems to be happening all over the city.
In looking for new, more affordable apartments, my wife found that when she went to the nearby Lianjia office and asked for places with a price similar to what we have been paying the past year, they said it wasn’t possible and that we would have to pay a lot more to get a place with the features we now have. When we went to one of the increasingly hard-to-find non-Lianjia dealers, we learned that there certainly were places in our price range that could meet our needs. While my wife and a non-Lianjia agent were looking at one apartment priced at 14,000 RMB, a Lianjia agent came to the same place with a Chinese girl who was looking to rent. She liked the place and asked how much it was. My wife heard the Lianjia agent say it was listed at 18,000, a full 4,000 RMB above the actual asking price. The girl was shocked and wondered how it could be so expensive. She turned to the agent my wife was with and asked what price he had been told. Not wanting to make another agent lose face, our agents just nodded his head and said it was 18,000. But this apparently was Lianjia’s attempt to drive up the price, deceiving a customer. Ugly.
By offering easy loans to customers who might not otherwise be able to get one, and by collaborating with landlords to drive prices up, the rental market in Shanghai has been booming at a crazy pace, the kind of pace that looks like a classic bubble. The housing bubble is already popping in Hong Kong, with a significant drop now in housing prices since the Sept. 2015 peak, said to currently be in “free fall.” That cold front may soon sweep northward to cities like Shanghai.
In bubble economies, it’s hard to tell precisely when the insanity will stop. With abundant injections of cash and other policy actions, the government could keep driving up prices for a while, but eventually (what, two more months? maybe six? a year?) economic reality has to kick in, and when it does, it can be painful and sudden. The bigger the steps taken to keep the bubble going, the worse the pain will be and the longer the correction will take.
When cheap mortgages to unqualified buyers begin to fail and threaten the banks, we could be in for a repeat of the subprime mortgage crisis the US faced a few years ago. When property owners begin to see that real estate values can drop significantly, they may look to the ultimate way of preserving capital in risky times: precious metals, particularly gold and silver. A dramatic pop of any kind in China could send shock waves throughout the world.
This is a good time to be prepared. Get out of debt. Have cash on hand to keep you going for two or three months in case there is a run on the banks (the available currency in the US is a tiny fraction of the vast amount of digital money that has been created, and if banks fail or are hacked, turning those digits into something you can spend may be a challenge that faces many delays, not to mention massive threats of hacking. Physical cash on hand may be an important part of your survival kit. Food and other supplies, and some gold and silver coins or bullion, may be a good idea.
The US Supreme Court recently ruled that “abstract” concepts are not eligible for patents. The 2014 case, Alice Corporation Pty. Ltd. v. CLS Bank Intl. or more simply Alice, is said by some to mean the death of thousands of patents if not entire industries. Critics such as Gene Quinn say it is unworkable, vague and indefinite, giving judges and enemies of patents a capricious tool to assault patents for software and other fields. One of the alleged problems with the Supreme Court’s ruling is that they expressly refused to define the word “abstract” because, of course, it is a very difficult word to define precisely for legal purposes. Greg Aharonian has expressed outrage over the “incompetence” of the Supreme Court in failing to even attempt to explain what they mean by “abstract.” IAM Magazine‘s blog warns of “potentially catastrophic effects” of the ruling. Even the calm and collected IP professor, Dennis Couch expresses concern that “there is no standard definition for ‘abstract’ and so it is difficult to identify abstract ideas from non-abstract ideas.” Many other IP experts and patent owners are up in arms because this allegedly adds confusion to patent law and gives judges a broad club to attack patents by merely calling them “abstract.” So much whining!
So how can you know if a claimed invention is “abstract” or not, when claim language invariably requires some degree of abstraction to describe the invention? OK, that’s a fair question, but there’s an easy answer thanks to the visual arts!
With a little artistic understanding, it is easy to predict precisely where the boundaries are for the hard-to-define term “abstract.” This is a case where art comes to the rescue. In my role as both a patent agent and an amateur artist, I can combine my skills to bring a little clarity. Students of art, especially the visual arts, know that artistic expression can capture and define concepts that cannot be precisely rendered by words alone and certainly not legalese.
The eye can often see what the pen cannot express. We should have learned this lesson decades ago in the debate over pornography. As Justice Potter Stewart once said, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” This statement is from Jacobellis v. State of Ohio 378 U.S. 184, 197 (1964) and while decades old, it still applies brilliantly today. With that judicial framework, we can readily see that pornography is equivalent to the abstract in patent law. Yes, you can know it when you see it, and seeing is what we need to do now to understand the keen thinking of the Supreme Court on this topic. So let’s take a look and understand “abstract” based on abstract art, or more specifically, photographic abstracts selected from my own work, including collections of abstract photographic art. I think after a few examples you will better appreciate just where the boundaries are that separate “abstract concepts” from the concrete, tangible concepts suitable for patentable inventions.
Knowing It When You See It: Examples of Abstraction, Illustrated by Photography
Here I present a series of works from my abstract photographic art and discuss the nature of the abstraction.
The abstract above resembles abstract geometric concepts found in many paintings, almost cubist in flavor, but achieved using photography. I snapped a photo of a group of people inside the Wisconsin State Capital in Madison, Wisconsin, but using a slow shutter speed that resulted in blurring of many features. But you can recognize a black man with a baseball cap on the left. In his right hand is an iPod and you can see a white line representing the ear buds he is wearing. On the right side we see the side of a woman with a purse. Of course, while baseball caps, iPods, ear buds, and purses, like people themselves, are relatively tangible objects, in this context they are rendered less specific by the way in which they are captured or described, thereby creating abstraction from that which was initially concrete and specific. Let that be a lesson to patent drafters, by the way!
Here’s another with a related technique:
This abstract is based on the structures and controls of the front panel of a rental car. The camera was moved as I snapped the shot. Not a random mistake, but a deliberate effort to convert the concrete into the abstract by blurring and twisting. Of course, the limitations of language tend to do this to some degree to all inventions, no matter how tangible, as they are “blurred” and captured with the unsteady lens of a single patent claim. A little burring in inevitable, but this much blurring definitely turns the tangible into the abstract.
Now let’s consider abstraction without blurring:
This is a geometrical abstract wherein the elements (abstract circles and lines) from a physical structure dominate the image and create an abstraction. This essentially untouched photo was taken from the entrance of an abandoned shopping mall in Milwaukee, Wisconsin. The scene is drawn from the concrete–or rather, from metal beams, glass, and brick–but when viewed in this way, becomes a combination of abstract elements: circles and lines, rhythm and color. Clearly abstract. The silhouette derived from a remote tree reflected in glass at the bottom is an abstraction representing the intrusion of nature into artificial man-made realms. Don’t let the hint of a tree distract you from the abstract theme here. After all, anything derived a tree is a product of nature and thus unpatentable, according to the Supreme Court in their recent Mayo v. Prometheus decision, which served as a basis for the reasoning in the Alice decision.
Now it’s time for something trickier but still abstract.
This image shows a mirror and a section of translucent plastic roofing above a cable car stop on the way to a tall mountain overlooking Rio de Janeiro. The mirror and the roofing are tangible, distinct objects, as are the buildings in the background. But here the image celebrates the blues and greens in conjunction with arcs and circles. The mirror does not display the photographer, but another section of the building, and is a symbol of the failure to reflect upon one’s self, becoming lost instead in the haze of what we call civilization, even while standing next to a towering temple of nature (the unseen mountain). The mirror also punctuates the series of repeated curves of the roofing, like a grand period putting a stop to the rhythms of the sky, an abstract concept again reflecting the invasive nature of civilization. It’s all very abstract stuff, though individual components are tangible, just as patent claims may contain concrete elements such as servers, computers, and processors, but in the end create an overall impression in the mind of the viewer or judge that is decidedly abstract.
Now I turn to an abstraction that is linked to the whole concept of innovation and IP, the famous light bulb, but here an abstract version thereof.
This photo is little more than an abstract idea representing the concepts of “light emission” and perhaps “bulbs.” It was actually abstracted from a fairly specific and tangible device, a fluorescent light bulb, but with extreme photographic settings and color adjustment that removed much of what is concrete in favor of the abstract. Sure, you can argue that it has components that are somewhat tangible and concrete, but those of us who know the abstract when we see it have no trouble calling it such. It’s not a patent-worthy bulb. It’s just an embodiment of an abstract idea. Patent ineligible. I know it, because I, like any good judge, know it when I see it. Try proving me wrong! Or rather, just try proving a judge or patent examiner wrong when they see something abstract in your carefully claimed invention.
As you can see, the boundaries of “abstract” are surprisingly clear and easy to predict–and surprisingly difficult to evade. I hope this will help all those complainers worried about “uncertainty” from the Alice decision to appreciate the new kind of certainty that it gives. Good luck to all you inventors and small companies out there. May your patents be less abstract and more valuable in the future.
Originally posted at JeffLindsay.com as “Abstract Art to the Rescue of Abstract Patent Law: How to Know “Abstract” When You See It.”
As we’ve discussed previously on this blog, the West often gets things completely backwards when it comes to China, and the misunderstandings can be serious barriers to Asian innovators seeking global markets. The “Tragedy of Chopsticks” helps illustrate this.
A few years ago while in the US, I became concerned about chopsticks in China. The anti-chopstick publicity from Greenpeace and other groups was pretty convincing. What a shame to read about the vast tracts of precious forest land in China that were being mowed down to fuel China’s reckless, wasteful use of disposable chopsticks. What an environmental disaster! The New York Time‘s famous Green Blog recently reminded us all that “Disposable Chopsticks Strip Asian Forests.”
The article begins with a photo of a Greenpeace demonstration in Beijing where activists are building trees made from chopsticks to highlight how chopsticks wipe out trees. The coverage of China’s deforestation from its horrific chopstick use made me worry about the nation, for I had long known that China hardly had any forests left. Thirty or so years ago, the amount of forested land in China was around 9%. Some say it might have been a little higher, perhaps 10 or 11%, but it wasn’t much. As a young professor at the Institute of Paper Chemistry early in my career, I learned that China had to import most of its wood since there was so little forest land. But since that time, the paper industry and the chopsticks industry in China has boomed. So if we had 9% forest 30 or so years ago, how much, if any, do you think is left today? After all those people using disposable chopsticks for all these years, is there anything left of China’s forests?
That was a question in my mind before coming over here, where one of my first agenda items was to better understand some of the environmental allegations made against China and against the forest products industry here. What I found really shocked me. Take forest, for example. What’s left of China’s forest? What percent of China’s land is covered with forests? The World Bank and other credible sources now put the estimate around 21% – roughly double what China had a few decades ago. In fact, China is on course to achieve it’s goal of 27% forest land, and has what appears to be the world’s highest rate of afforestation, the opposite of deforestation. To provide the raw materials needed for forest products such as paper and, yes, chopsticks, China is ADDING forests, not mowing them down, creating sustainable high-yield plantations that can be planted and harvested repeatedly just like farmers plant and harvest their farmland, while carefully protecting virgin forests. Yes, plantations aren’t the same as wild virgin forests in terms of species diversity and beauty, but they are forests, and it is a good solution to the challenges of development. Yes, there was tragic forest lost in the past and irresponsible actions, but now China has strict policies and enforces strict regulations. Plantations must be approved before they can be created, and further official approvals are needed before trees can be harvested and then before they can be transported. As for chopsticks themselves, most of these come from bamboo, which grows rapidly and is easily planted, just like a food crop. In fact, bamboo is a food crop, with bamboo shoots being one of the most important components of Chinese cuisine. Will Western NGOs next tell us that we have to stop eating bamboo shoots? And then will we need to stop eating rice to save the rice fields?
So while the West is bemoaning the stripping of Asian forests from Chinese chopsticks and paper, the real story in China is a doubling of China’s forest with the help of the forest products industries and aggressive State policies. Why is this story so completely untold in the West? Why is it not part of the debate when Congress is deciding they need to punish the Chinese paper industry with punitive tariffs, when actually, the Chinese paper industry (at least based on my knowledge of APP) has environmental standards and achievements that are typically better than those that are standard for Europe and North America. But recognizing the remarkable environmental achievements of that industry, including its contribution to rapid afforestation through sustainable plantations, does not fit the agenda of some the West.
China has had its environmental problems and still has a lot of progress to make in terms of pollution, but it’s an issue that is taken seriously and remarkable progress is being made. In the forest products industry, the worse polluters are being shut down, hundreds of inefficient, highly pollution paper mills every year are being shut down as standards are progressively tightened. Come see for yourself and visit some of the beautiful, clean paper mills I’ve seen here in China. And before you try telling the people of China how or what to eat because of your enlightened knowledge of all things environmental (if, perhaps, you are as wrong as I was about the realities of China before coming here), you might want to get your chopstick facts straight. Chopsticks and forests are one of many issues where the West grossly misunderstands China.
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.
In the United States and many other nations, a question is being asked by many who struggle with the brutal reality of innovation fatigue. In many sectors, it is taking bigger investments, longer times, and much more pain to deliver innovation, and much of what passes for innovation in some sectors ends up being incremental fluff or mere cost-cutting. Some blame it on employee productivity, some blame it on short-term thinking in pubic companies driven by the unnecessary compulsion to please stockholders above all others, some blame it on the MBA culture instilled by leading business schools, and others blame it on governments that make every entrepreneurial move a slow trudge across the regulatory mire and a possibly fatal descent into quicksand. Some point to numerous factors including the capital crunch, creating a perfect storm in which even cash-rich companies are afraid to invest in real innovation because of uncertainty and fear.
Innovation fatigue, of course, is not uniform. Individuals and individual companies often buck trends and rise above currents of fatigue, and sometimes entire sectors seem energized and vibrant with innovation. For example, innovation in mobile applications and devices seems vigorous, but even then we have former innovation leaders like Nokia and Motorola feeling the burn of fatigue across many parts of their business.
Where are the real pressure points? What are the next steps that America or other nations need to take to restore a vigorous innovation culture across many sectors and help their nations overcome innovation fatigue? What do corporate leaders need to be doing differently to turn their companies in havens of innovation that can deliver growth and success for the long term? What do our political leaders need to do and understand to let the fire of innovation burn more brightly?
Let me know your thoughts. The five answers I like best will be rewarded with a free copy of Conquering Innovation Fatigue mailed to wherever you are. All submissions will implicitly have your permission to share them, though I will withhold your name if you ask me to. Send your comments to jeff at magicinnovation d0t com.
Doug Gross at CNN has a list of the top 10 tech product failures in recent years (hat tip to Greg Aharonian’s Patnews newsletter). The list includes:
- Apple Newton
- Google Wave
- Microsoft KIN
- Atari Jaguar
- Virtual Reality
Some great ideas and even some cool technology went into most of these products, but they failed for various reasons. Wrong business model, easy or vastly superior alternatives, low-cost “good enough” alternatives, benefits too narrow, company out of touch with the market, poor execution, premature launch, failure to learn and iterate to respond to the market, etc. Their failures important for other innovators to consider, for there are many things that can stand between you and innovation success. Success is more likely to favor the the flexible few who learn from the initial failure and have funds left to iterate to give the market what is really wanted.
I was surprised to see Virtual Reality on the failed tech list, but it certainly hasn’t lived up to all the hype. Here is CNN’s take:
Remember when we were on the verge of living high-tech virtual lives?
When optic sensors, VR helmets and power gloves were supposed to have us living in “The Matrix?” Or at least on the Holodeck?
Turns out, the promises were a little ahead of their time.
“The technology of the 1980s was not mature enough,” says Stephen Ellis, who continues hacking away at virtual reality at NASA’s Ames Research Center.
The main effect of commercial VR-tech that’s rolled out since then has largely been making the user want to throw up.
Virtual reality may have a pathway similar to RFID (radiofrequency identification technology). Years of hype hindered by high costs and inadequate execution, but successful niches will be found where its impact can become enormous as the technology becomes useful and affordable for those applications, while not being nearly as ubiquitous as pundits once projected. There is something there, making it far too early to write off virtual reality or several other of CNN’s top 10 failures as genuine failures. For those who can learn from the marketplace and adjust business models and technology to exploit genuine unmet needs, there are exciting opportunities that we may see shortly.
Innovators and business leaders doing their best to achieve commercial success need to understand the set of innovation fatigue factors that they face. These include personal factors due to the bad behavior of individuals; corporate or organizational fatigue factors reflecting inadequate systems, culture, or flawed judgment; and external fatigue factors due to the burdens of legislation, taxation, and challenges in the patent system, for example. The first two categories are factors where innovators and corporate leaders are in charge. The external category is the most difficult one because the challenges come from outside our sphere of influence, where the best efforts on our part can still face seemingly insurmountable challenges beyond our control.
One of the effects of uncertainty regarding the regulatory climate that business faces is a dangerous reduction in venture capital that is often needed for start-ups to succeed. Consider this ominous news story from Yahoo! about the drop in venture capital funding recently:
Venture capitalists poured less money into U.S. startups in the third quarter and split this among more companies, signaling that investors are trying to be more economical with their funds.
According to a study set to be released Friday, startup investments declined 7 percent to $4.8 billion in the July-September period, compared with $5.2 billion invested during the same three-month period in 2009. A total of 780 startups received funding during the quarter — 9 percent more than the 716 companies that took slices of the investment pie last year.
The study, which was conducted by PriceWaterhouseCoopers and the National Venture Capital Association based on data from Thomson Reuters, said that much of the decline stemmed from a drop in large investments in clean technology. Funding in clean-tech startups, which include alternative energy, recycling, conservation and power supply companies, has been mercurial lately. It fell every quarter last year compared with the previous year, but has been climbing this year — until the third quarter.
This is a genuine red flag, consistent with many red flags that we are seeing. The co-founder of Home Depot, for example, recently criticized the federal government in an open letter to President Obama in the Wall Street Journal (Oct. 15, 2010), explaining that Home Depot, founded during a past recession and now providing over 300,000 jobs to Americans, could never have been successfully founded in today’s climate where government, in his opinion, seems set on vilifying and punishing business rather than helping it to succeed.
We opened the front door in 1979, also a time of severe economic slowdown. Yet today, Home Depot is staffed by more than 325,000 dedicated, well-trained, and highly motivated people offering outstanding service and knowledge to millions of consumers.
If we tried to start Home Depot today, under the kind of onerous regulatory controls that you have advocated, it’s a stone cold certainty that our business would never get off the ground, much less thrive. Rules against providing stock options would have prevented us from incentivizing worthy employees in the start-up phase—never mind the incredibly high cost of regulatory compliance overall and mandatory health insurance. Still worse are the ever-rapacious trial lawyers.
Meantime, you seem obsessed with repealing tax cuts for “millionaires and billionaires.” . . . The wealth that was created by my investments wasn’t put into a giant swimming pool as so many elected demagogues seem to imagine. Instead it benefitted our employees, their families and our community at large.
Business leaders and innovators face many new burdens and uncertainties that can crush delicate start-ups and even thriving businesses. Increasing the burdens right now, whether through more regulations, higher taxes, or other measures with unintended anti-business consequences, seems likely to only increase innovation fatigue at this critical time in our nation’s history. I urge our leaders to carefully consider how small companies and start-ups are being affected, and how venture capital will be affected, by the changes that are being proposed and by the actions they’ve already taken.
It’s time for government to listen to the voice of the innovator.