Archive for fatigue factors


Ethics Fatigue

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Here’s a story I’ve heard too many times. I spoke recently with a businessman who developed an advanced formulation for a product that beat the market leader. He invested thousands in the product and found a manufacturer that expressed interest in his work and offered to be a partner in commercializing it. The businessman invested more to finalize the product and prepare it for commercialization, only to have the company come back later and say that they decided to drop it from their plans. Can you guess what happened next? The company actually went ahead and launched the product on their own. The developer got nothing more than a “thank you” for a nice idea. Unfortunately, he didn’t have a patent in place to protect himself. Non-disclosure agreements regarding the formulation might have helped if the formulation really were a trade secret that he had shared. He trusted and got burned.

Many companies strive to be ethical and operate by high standards. Some companies are simply unethical. I don’t think that describes the company in question. Here’s an important lesson: many companies strive to be ethical but operate by low standards. How low? As low as they think the law will let them operate. The obvious ethical thing from your perspective, and what you and an individual leader at another company might naturally see as ethical and fair, may look completely different when others who don’t know you are reviewing the proposed terms. “Why should we pay this person any of our money for this product?” “Because he invented it and brought it to us.” “But now we’re developing it on our own. If he doesn’t have a patent, there’s no reason why we can’t make this ourselves. At most he could ask for a finder’s fee, but we have no obligation to pay him anything. All he’s done is give us an idea. We’re grateful, but why pay?”

Companies proud of their ethics can have shamefully low standards. Sometimes their standards in the end are those of the lowest common denominator in their legal department or leadership team. Investigate their reputation and their ethics in practice before you trust them too fully.

Poor ethics, even from companies proud of theirs, are one of the banes of this world and the cause of so much unnecessary innovation fatigue. Be cautious, maintain good records, use non-disclosure agreements, protect your intellectual property, and stay clear of people and companies that don’t maintain high ethics in practice, not just in print.

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In May 2010 I was invited to speak at a conference of WTA (the Wisconsin Telecommunications Association) about innovation lessons for the telecommunications industry from our recently published book, Conquering Innovation Fatigue (John Wiley & Sons, 2009). Here is a condensed version of the presentation. I’ll do another Pixetell soon with some additional content.

Can’t help mentioning this: I had a technical problem with the above Pixetell and sent an email to their tech support team. I had a response within minutes. In fact, I had a phone call – the kind that takes real people using real time – and the quickly helped me troubleshoot the problem and get this post working. Wow! Miracles still happen–or at least great customer service. Love Pixetell. Great way to turn PowerPoints or whatever you have on a computer plus your voice into a recorded presentation that you can share with a URL, embed into a blog, or save as a movie. Pixetell is a product of Ontier, Inc.


Ramping Up External Innovation Fatigue

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Without wishing to be political, I have to say that I am worried about the future of innovation in light of “external innovation fatigue factors” that arise when government creates imposing barriers for innovators, especially for small businesses and lone entrepreneurs. As we note in Conquering Innovation Fatigue, the problem is often one of unintended consequences from well-intended actions. In the past several years, there has been an acceleration in regulatory burdens, tax burdens, and litigation risks that make starting or running an innovative business riskier than ever. Mounds of cash have been taken from the private sector and given to government agencies and large institutions for so-called stimulus or bailouts, but the real cost of such “help” is rarely considered. We see failed organizations on life support and may be happy to hear of thousands of jobs in these firms that appear to be saved, but we don’t get to see and consider the small businesses that dry up due to the money that was channeled elsewhere or that face the burden of unfair competition from failing institutions shielded from the consequences of their less competitive business models.

We see many leaders calling for even higher taxes on those who are (or would have been) most likely to create jobs and launch businesses. We see government making it more difficult and costly to obtain the energy that is literally and figuratively the fuel of our economy. We see US corporations facing burgeoning regulations regarding environmental issues, hiring practices, benefits, etc., that are not found in the nations we import from, with the natural consequence of punishing those who wish to produce in the US and motivating them to close shop here and go elsewhere. We see increased government intervention at all levels of the private sector, often favoring the large and well connected while leaving the lone innovators and start-ups in the dust, strangled with red tape and choking with uncertainty about the future. Meanwhile, property rights, including intellectual property, are increasingly in jeopardy. This is the stuff of “external innovation fatigue.” It’s been bad for years, and it’s accelerating now at a dangerous pace.

Those who wish to launch new businesses and reap the rewards of their innovation can still succeed, but need additional help and caution in moving forward and finding the right partners, business models, and approaches to reduce the risks and create lasting competitive advantage that can survive the billowing waves of external fatigue factors. We offer guidance in the book on these issues, including the need to be more holistic in pursuit of intellectual property, taking the path that we call 360-degree intellectual assets. Thinking about patents exclusively can lead to excessive costs and disappointments. I suggest reading carefully our recommendations on holistic intellectual assets and giving us a call for further guidance. Innovationedge can be reached at 920-967-0466.

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The Summer 2010 issue of American Educator (a publication of the American Federation of Teachers) ably illustrates one of the lessons we teach in Conquering Innovation Fatigue: metrics to drive performance can have unintended consequences that may actually hurt rather than help. Indeed, unintended consequences are a major theme of our book, as we explore the problems arising from metrics, corporate and government policies, corporate innovation initiatives, laws, taxation policies, and other factors, all of which can contribute to innovation fatigue.

In terms of education and the danger of improper metrics, Linda Perlstein’s article, “Unintended Consequences; High Stakes Can Result in Low Standards,” examines a highly celebrated school in Annapolis, Maryland that received media attention and praise for seemingly miraculous success in education. The new principal arrived in 2000 to find Tyler Heights Elementary School in a dismal state with only 17% of its students getting satisfactory scores on the state test. She began redirecting efforts in the school to address this problem. Eventually her laser-focus efforts paid off, delivering the stunning success of 90% of third-graders performing well on the Maryland State Assessment, when only 35% of third-graders did so two years before. Several newspapers recognized the amazing turn-around and people at the school celebrated the success. But was it real success?

To achieve good performance on the Maryland State Assessment, education for the children was largely focused on how to do well on the test. Students learned how to write BCR’s (“Brief Constructed Response”) to deal with expected questions about poems and plays, and practiced writing these short answers for many hours, without actually studying poems or plays. “What gets tested is what gets taught,” the principal told the teachers, even if that meant leaving behind the material that was supposed to be taught according to state standards. Bins of equipment for studying science were largely unused.

Tyler Heights’ third-graders got only the most cursory introduction to economics and Native Americans, and much of the curriculum was skipped altogether. The students were geographically ignorant. . . . The third-graders had heard Africa mentioned a lot but were not sure if it was a city, country, or state. (They never suggested “continent.”) At the end of the year, the children in Johnson’s class were asked to name all the states they could. Cyrus knew the most: three. He couldn’t name any countries, though, and when asked about cities, he thrust his finger in the air triumphantly. “Howard County!”

The state standards required a broad curriculum, but the metrics for assessing that were based on one particular test and all the incentives were for helping students pass that test. In spite of the praise for the miracle at Tyler Heights, had the children really been helped?

Campbell’s Law

The problem with unintended consequences from metrics such as tests is hardly unique to Tyler Heights. Daniel Koretz, also writing in the same issue of American Educator (see page 3 of the PDF file on unintended consequences), explains that in education and other fields, score inflation is a common and well known but widely overlooked problem. In the social sciences, a phenomenon that leads to score inflation is known as Campbell’s Law. While widely applied to education, it was developed while looking at business. Donald Campbell, a prominent social scientist, examined the role of corporate incentives on the performance of employees. His research led to this general formulation: “The more any quantitative social indicator is used for social decision making, the more subject it will be to corruption pressures and the more apt it will be to distort and corrupt the social processes it is intended to monitor.” (Donald T. Campbell, “Assessing the Impact of Planned Social Change,” in Social Research and Public Policies: The Dartmouth/OECD Conference, ed. Gene M. Lyons, Hanover, NH: Public Affairs Center, Dartmouth College, 1975, p. 35. See also Can New York Clean Up the Testing Mess? by Sol Stern.)

Campbell’s Law is at work when schools game tests to get better scores, at the expense of education. It is at work when cardiologists choose not to operate on patients who might need surgery rather than risk hurting their own published statistics on mortality rates among their patients (Koretz refers to a 2005 story from the New York Times reporting the shocking results of a survey of cardiologists). It is at work when a company tries to boost innovation with metrics or incentives that result in game playing, while leaving the real problems from culture, systems, and vision unaddressed.

sharksIn our experience, metrics and incentives can play a valuable role in driving innovation, but only when the corporation has a culture that genuinely encourages innovation, when there is a shared vision of innovation and success, and when sound systems are in place to advance innovation. Without those, you can not only waste a lot of resources in attempting to drive innovation with metrics and incentives, you can actually make a weak culture become pathological and lethal, sometimes exacerbating fatigue factors like the Not Invented Here syndrome, theft of credit for innovation, and breaking the will to share. Adding incentives linked to metrics without the right culture and systems can be sort of like throwing raw meat into a school of sharks or piranhas. You can generate a lot of activity, a lot of exciting thrashing and splashing, but in the end there will just be a lot of blood in the water and fewer thinkers and producers in your school.

As always, innovation success requires that you carefully monitor for harmful unintended consequences from the policies, programs, and incentives you have in place. Innovation metrics, incentives of all kinds, and employee performance evaluation systems and other tools associated with metrics can backfire. Unless you are tuned to the voice of the innovator and understand the impact of unintended consequences, you can be like the company we treat in Chapter 8 of our book that felt like it was a rock star of innovation while they were actually squelching it. Don’t let the unintended consequences of well-intended policies and metrics crush your innovation success.

Spill Cam View

Spill Cam View

While many US citizens are tempted to make political points from the problems we’re facing in the Gulf, there are some basic organizational issues that transcend political parties and get at one of the basic problems in responding to unexpected changes. The problem is bureaucracy and the myriad of personal and departmental incentives that are naturally NOT aligned with the needs of the larger organization (in this case, the nation). The fundamental problem with bureaucracy in both large companies and governments is that there are many disincentives for individuals and groups to do what is right for the larger organization. Each bureaucrat fears future punishment if standard rules and procedures are not followed. If a Coast Guard officer backs down from meticulous safety requirements to be imposed on other vessel and, say, allows an oil cleanup rig to go into service without adequate fire extinguishers, a career might be ruined if fire breaks on that vessel. There are no rewards for being flexible and terrible risks for backing down from the letter of the law, or rather, from the millions of letters in the thousands of pages of rules, procedures, and protocols.

The problem in large organizations, and the US federal government is pretty much the world’s largest, is that numerous entities have their own turf and their own advancement in mind, and without special efforts being taken will naturally work in ways that cause conflict and delay. Leaders must carefully work to align these interests and incentives toward organizational objectives, but this can be almost impossible when an organization gets out of control. Adding a new committee or bureaucracy in addition to everything else will rarely be the most effective path forward. Meanwhile, those who may have the answer and want to bring their expertise to the table find themselves discouraged, worn down, ignored, and ultimately punished for their passion to innovate and help. Welcome to organizational innovation fatigue, and welcome to the Gulf Coast disaster.

Several voices have discussed the need for innovation in dealing with the disastrous oil leak in the Gulf Coast. There are so many intriguing opportunities for technology–oil absorbent materials, new chemistries for dispersing or attacking the oil, controlled burnoffs, skimming and oil collection systems, barrier technologies to keep the oil away, materials that coagulate oil, and a host of proposed technical solutions for addressing the root cause and stopping the leak. Many of the proposals should be considered and tried. This is not the time for bureaucracy. This is not the time for the government to be shutting down efforts with its bureaucracy. If the Coast Guard is worried about inadequate fire extinguishers, round up a batch and take them over to the relief effort to help, not hinder the State of Louisiana as it tries to protect itself. But what the Coast Guard did in this case is akin to what happens thousands of times each day in companies and government around the world, contributing to the innovation fatigue that stymies much needed efforts at innovation and progress.

The V16 Separator of Ocean Therapy Solutions

The V16 Separator of Ocean Therapy Solutions

There are some bright spots of innovation amidst all this mess. Kevin Costner of Hollywood fame has been developing a company with patented technologies for cleaning oil-contaminated water. Ocean Therapy Solutions ( represents a case of successful technology transfer that began in the US Dept. of Energy and some national labs. The technology has now emerged as clever centrifugal separators that split a contaminated stream into highly separated water and oil-rich streams. Portable units mounted on boats can go into contaminated waters and process large quantities of ocean water, recovering oil and returning much cleaner water to the ocean. Their website includes a couple of interesting videos, including one of Kevin testifying before Congress. The system has received relatively little interest for the past decade and the factory has been dormant, but now awareness is rapidly increasing and BP is deploying some of these units for use in the Gulf. A single unit can process 200 gallons per minute or more.

Kudos to Kevin and his team! He certainly has an advantage with his name recognition and extensive networks–without that, he may have been viewed as just another voice in the wind claiming to have something. There are others with technologies and potential solutions. May they also find their way to make a difference. May all the innovation fatigue factors remain far from Kevin Costner and all others seeking to bring something new to help us fix the Gulf Coast disaster.


Update on Reviews of the Book, Conquering Innovation Fatigue

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While I normally use this blog space to discuss innovation, business, and technology topics that build upon our book, here’s a brief departure to share some news about recent reviews of the book itself. I’m glad to report that a Rolf Dobelli, a Top 50 Amazon reviewer and one of the founders of the terrific company,, has reviewed our book and given it five stars. Thanks, Rob! Here’s what he had to say at Amazon:

Although countless books explain why innovation matters and how to benefit from it, few address the reasons that companies and individuals don’t innovate successfully. That’s where this volume comes in. Jeff Lindsay, Cheryl Perkins and Mukund Karanjikar provide many examples of corporate, political and structural barriers that block innovation, the forces that smother it, and the organizational and social factors that make it difficult. Their analytical book expertly blends research and firsthand perspectives. Though the authors are somewhat fond of jargon and coined terms, their guide is a welcome addition to the innovation canon. getAbstract recommends it to innovators, human resources professionals and executives who want to inoculate their companies against the disease of innovation fatigue.

Thanks, Rolf!

Excerpts from a few others reviews at Amazon:

From Walter Reade:

Conquering Innovation Fatigue is an important and much-needed contribution to the innovation literature. If you have any interest in innovation, this book is a must read.

The book recognizes that the struggle corporations are facing to provide real innovation is complex and goes far beyond a lack of good ideas. On the contrary, there are behavioral, organizational, and external challenges that are the real culprits for squelching innovation.

From M. Roberts:

My firm consults with a lot of inventors and entrepreneurs, and I’ve been recommending this book to each of them before they head too far down the road. The value proposition to inventors/entrepreneurs will become evident within the first couple of chapters, but many larger corporations will benefit from the principles shared in this book as well. I’ve lost count with the number of companies that have a “Not Invented Here” culture that I’ve come in contact with. The NIH chapter alone is worth putting this book in your library….

Intellectual Property (IP) is the currency of the 21st century, and “innovation” is the key ingredient to any IP recipe. The authors of Innovation Fatigue clearly have a deep and profound understanding of this principle, and have pulled their insights together in a way that an individual inventor to a CEO of a Fortune 500 company can understand and put into action. Well done!

From Thomas Brainard:

Dr Lindsay and his coauthors have a hit here, probing how to identify and avoid major factors (fatigues) that destroy innovative effort. They create a 3×3 framework for this discussion, focusing on threats to property and trust, systemic flaws, and barriers to collaboration as applied across individual, organizational, and environmental factors. The framework felt slightly forced at times, but still I found it extremely useful; and the authors draw nicely from their experiences to provide numerous case studies and examples that document their conclusions.

As a patent attorney who has worked many years with innovators in a large corporate setting, I have faced firsthand many of the fatigue factors they discuss. This work is a crucial tool for R&D managers but, more importantly, it is a “must read” for leaders of an organization who have asked themselves “how do I get my teams to be more innovative”. The answer – which is not based in cost cutting, efficiency or shareholder opinion – may not be popular, but it is informative.

From E. Parker:

This book provides an in depth overview of the barriers to innovation. The authors have a deep understanding of the innovation process, and have written this book to categorize the various pitfalls that can prevent inventors from capitalizing on their ideas, or prevent new ideas from achieving success in the marketplace. There are a lot of books on the invention process, but relatively few on the challenges that can prevent good inventions from becoming innovations. This book takes a systematic approach to the subject. The chapters form a checklist that anyone can use to make sure that all barriers to innovation are minimized in their company, organization, or personal entrepreneurial endeavors.

I especially enjoyed reading the case studies. The book contains so many interesting stories about famous and not-so-famous inventors. I was unfamiliar with many of the stories and learned a great deal from the examples–particularly those where the inventor failed in his/her effort to bring an idea to fruition.

There are so many roadblocks on the inventor’s path. This book is like a road map for inventors or those who work with inventors–it details the pitfalls as a way to improve your chance of success. At the same time, the many stories make it fun to read. I highly recommend it.

From Carol Blaney:

I also appreciated the thorough attention given (in the second half of the book) to legal issues, including patents and government regulation issues, that can hinder innovation progress. A great collection of real examples were provided, leaving me with the equivalent of several lifetimes of careers in corporate management, patent law, and research & development – along with the wisdom gained thereof. Thank you Lindsay, Perkins, and Karanjikar for your contribution via this book.

From Brian Glassman:

This book explains the many fatigue factors by organizing them smartly into 9 easy to remember categories detailed in chapters 4 to 17. The book is well organized and easy to read. Interestingly, executive managers can take easy steps to remove fatigue factors and then have an easier time concentrating on the major barrier to innovation in the companies. Hence, I recommend this book as a nice read for innovation managers, and I strongly feel it would make a great reference book.

From Mary Ellyn Vicksta:

This is truly a unique book about innovation. Unlike most of the innovation books out there, this looks straight at innovation and masterfully helps you to recognize and overcome the 9 innovation fatigue factors. The advice is very practical, with examples and stories that helps the inventor understand the fatigue factors from the perspective of an individual, the organization, and the outer world. The examples are extremely well-written so that you become engaged in the story, while clearly understand what’s causing the fatigue and what you can do to be a successful innovator.

The stories explaining the fatigue factors have a tremendous range; something will speak to you given your own perspective on invention and innovation. . . .

There are many more gems within this book. It’s well-written, full of engaging stories, and a treasure box of great insight about invention and innovation.

From Reader:

It is rare that a business book hits the right balance between thoughtful reflection, actual experience, historical grounding and practical recommendations. Conquering Innovation Fatigue has nailed it exceptionally well. It is packed with stories of real people and inventors and real companies dealing with both success and frustration in bringing innovation to market. But examples are selected with care to illustrate some very important aspects of the creative process and remind us that innovations is really about humans, not just ideas.

We look forward to your review as well!

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In late 2009, I was invited to speak at Singapore’s Innovation and Enterprise Week 2009, an event held at Biopolis and sponsored by A*STAR, the world-class research organization of the Singaporean government, in collaboration with Exploit Technologies, the tech transfer arm of A*STAR. While I enjoyed the opportunity to discuss our book, the important thing to me was the opportunity to learn more about that amazing country and their bold approach to promoting innovation and technology. In my presentation for the large crowd at Innovation and Enterprise Week, I discussed the fascinating parallels between the Singapore experiment and the evolving experiment in innovation in my state of Wisconsin, where the Wisconsin Institutes for Discovery represent a brilliant approach to combining the best of public and private innovation.

Below are three video segments from my presentation. A couple of friends in Singapore took the video. There are a few gaps in sound and so forth, but I hope you can understand it. Don’t miss my lame magic trick in segment 3. They seemed to like it–proof again of the great courtesy that one finds in Singapore. In all seriousness, I think there are important lessons about innovation that can be gleaned by inspecting both the Singaporean system and the Wisconsin Institutes for Discovery, which include the Morgridge Institute for private sector research and the public Wisconsin Institute for Discovery. Madison and Singapore are on opposite sides of the world, but on the same side of the innovation spectrum, at the leading edge.

Update: On April 24, I posted a newly recorded and shortened Pixetell presentation covering the basic information I shared in Singapore, without the magic or other excursions.

I am deeply grateful to the many people who kindly shared their time to help me prepare for the presentation, including Sangtae Kim, John Wiley, Charles Hoslett, Carl Gulbrandsen and Janet Kelly from the Wisconsin side (Wisconsin Institutes for Discovery and WARF), plus Boon Swan Foo, Seito Wei Peng, and Sze Tiam Lin at Exploit Technologies in Singapore.

Part 1:

Part 2:

Part 3:

For connecting one human to another, it’s been said that any two people can be connected by acquaintances in six steps, hence the concept of “six degrees of separation.” The term “seven degrees of separation” occurred to me when reading Malcolm Gladwell’s discussion of airliner accidents in his outstanding book, Outliers: The Story of Success. He observes that extensive studies of airliner crashes show that the fatal tragedies often require a combination of seven things going wrong, any one of which might just be an inconvenience or minor problem by itself, but in combination with the others can lead to disaster. When it comes to connecting skilled humans to the very disasters that they have been carefully trained to avoid, there are seven degrees of separation to disaster.

While mechanical defects, fatigue, and bad weather are often involves in the seven degrees of separation, these airliner disasters almost always involve flaws in interpersonal communication. For example, there may be a copilot who is afraid to speak up and challenge the pilot when an obvious mistake is being made, or there is a lack of clarity in communicating a problem to the air traffic controllers. When trouble is brewing, success often requires extensive communication between the flight crew, other crew members, ATC staff, and sometimes others. Plans must be made, checked, implemented, revised, clarified, conveyed, and so forth, at many levels to handle an emergency properly. When crew members keep their mouths shut and don’t share what they know or sense, when courtesy or fear stops urgent information from being shared, or when there are cultural or linguistic barriers to effective communication, multiple mistakes and miscues can accumulate, whittling away at the separation between survival and disaster. It’s that way in the world of innovation as well.

Superior IQ and innovative genius is often far less important than the ability to communicate. Disasters in innovation and new product development are often due not to lack of intelligence among the innovators and corporate leaders, but gaps in communication. Launching a product and safely navigating it through the storms of the market can be much trickier than flying an airplane. The flight of a new product always involves malfunctions and emergencies that require communication skills above all. Information from the market must be effectively shared with the developers. Plans must be shared and communicated with external partners and internal teams. Benefits and features must be effectively communicated to end-users. Expectations must be clearly conveyed to suppliers and service providers. A plethora of data must be handled and shared in ways that inspire, motivate, drive action, and keep all parties aligned.

As in an airplane emergency, “yes men” are not the people you need around to help. You don’t want devil’s advocates either or professional naysayers–you need people willing to share what they know and challenge directions and assumptions that may mislead the project or the company. You need people who can help you confront and conquer the brutal facts of your present reality. (See my previous post on the Stockdale paradox and the danger of optimism.)

More than words alone are involved in the communication relays that are essential for a successful new product flight. Intangibles related to trust, loyalty, and common agendas must be in place. It’s all about relationships, and these take time and effort to build and maintain. Unreliable or misleading communication can break those relationships and jam navigation systems, as can abusing or taking advantage of partners and employees. Bonds of trust and mutual respect inside and outside the corporation are essential to maintaining effective communication and bringing about the alignment and common purpose needed for innovation to succeed.

As Gladwell notes, the seven errors that tend to accumulate in major airline disasters “are rarely problems of knowledge or flying skill. . . . The kinds of errors that cause plane crashes are invariably errors of teamwork and communication.” Ditto for the risky, high-flying adventure of innovation, where crashes are the rule rather than the exception. It’s not that the team wasn’t skilled or clever, but fundamental gaps in teamwork and communication resulted in the product launch smashing at full speed into barriers they failed to notice or attempting landings on runways that weren’t there. These disasters are always going to be far more likely than airplane disasters, but improved communication and teamwork across your innovation ecosystem can do much to bring you safely home.

In Conquering Innovation Fatigue, our chapter on the Horn of Innovation is devoted to illustrating the importance of including the innovation team in feedback loops that bring data from the marketplace to the innovators to allow them to make rapid on-the-fly adjustments for iterative innovation. Cut off that communication, and your innovators are flying blind. Blind innovation is what fills the convention “innovation funnel” with numerous abortive attempts that need to be weeded out. Keeping innovators inside the loop with clear and instant communication gives them a more clear map and helps them work with your team to develop the right flight plan for success.

Innovation success is all about abundant communication and teamwork, not hand-offs that isolate those with the vision from those at the helm. Innovation is disaster prone enough when everything is running well–no need wiping our a half-dozen of your degrees of separation from disaster by your own communication and relationship mistakes from the beginning.

Theft is a Major Innovation Fatigue FactorOne of the nine major innovation fatigue factors that we treat in Conquering Innovation Fatigue is theft of the invention, of the IP, or other assets. One of the most painful and most common sources of theft of an invention is from partners such as vendors or customers. One apparent example is the dispute between Woodstream Corp. and Agrizap, Inc., a case that went to district court and then on appeal to the Federal Circuit Court. Again, there are always two sides to these stories, and we encourage people not to judge losers of legal battles too harshly, for truth and justice are not always the product of courts. But the apparent facts of the case, as reported in public documents, illustrate the kind of problems that many inventors face and need to be protected against.

Agrizap, Inc. had developed a rat killer based on electrocution. It was patented in US Pat. No. 5,949,636. Woodstream, the maker of the Victor® brand pest control products, approached and developed a partnership with Agrizap. During negotiations under a non-disclosure agreement, Woodstream sent samples of the Agrizap product to Chinese manufacturers. Agrizap learned of this and challenged their motives, but a vice president of Woodstream assured Woodstream that the action was simply to obtain a price quote for use in negotiation with Agrizap and was permitted under a particular section of the non-disclosure agreement. However, it appears that they were looking for help in making their own product. Woodstream soon licensed the patent from Agrizap to allow Woodstream to sell the product to a limited group of companies such as Home Depot and Lowe’s. Agrizap agreed not to compete in those markets. They provided Woodstream with products, not knowing that Woodstream was working on developing their own version of the same. Within three years of the partnership, they were competing directly with Agrizap with their own version of the product.

Agrizap sued for patent infringement. Unfortunately, during appeal, the Federal Circuit used the recent KSR decision on obviousness to argue that the patent was simply a combination of known elements to achieve a predictable result, and thus invalidated the patent. But Agrizap also sued over fraudulent misrepresentation and won a $1.2 million award in spite of losing their patent. The existence of good documentation about their agreements, including oral aspects of the agreement, proved to be more valuable in the end than the patent itself. (Resource: “. . . Eliminates Pesky Patents Too! Agrizap, Inc. v. Woodstream Corp.,” Advanced Patent Trial Strategies (APaTS®) series, Robins, Kaplan, Miller and Ciresi, LLP, Minneapolis, Minnesota, April 14, 2008.)

In this case, unfortunately, the activities of Woodstream forced Agrizap to sue and thereby put their patent at risk. Had Woodstream been more forthcoming, Agrizap might have been able to license the patent more broadly or continue using it to generate revenue. One can argue that eliminating an invalid patent is a public service, and that may be the case, but the invalidity is painful when it comes from rules that change midstream, adding new uncertainties for patent owners. And in any case, the apparent misrepresentation by Woodstream resulted in substantial loss for Agrizap. It gave Woodstream several years of market penetration before they launched their own product, when it would have been much better for Agrizap–had they known of Woodstream’s intent–to simply enter the market directly and build momentum before Agrizap had time to reverse engineer their product. No one wants to form a partnership with someone who secretly plans to turn around and compete directly against you.

Choose your partners and friends carefully. The ones with poor ethics will usually lead to regret and loss. Make sure you have solid documentation of your agreements and understandings, in addition to strong patents, in order to protect your interests in spite of the uncertainties of law.

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In the latest Harvard Business Review, Edmund S. Phelps and Leo M. Tilman have a short essay calling for government action to better fund innovation. In “Wanted: A First National Bank of Innovation,” they paint a picture that agrees with what we describe in Conquering Innovation Fatigue, where we review some of the “innovation fatigue” problems we are observing in the United States and elsewhere:

Dynamism has been in decline over the past decade. Venture capitalists bemoan a dearth of innovative ideas, and investors bewail a precipitous drop in their rates of return. IPOs of venture-capital-backed firms have steadily declined from the levels of the 1990s. Total venture investment is now running at less than $20 billion per year. Institutional investors and equity analysts now pressure CEOs of public companies to hit steadily growing earnings targets. That pressure distracts from long-term value creation. And the patent system, which at first encouraged invention, now threatens inventors with a tangle of infringement suits.

The current financial system is choking off funds for innovation. It lacks transparency, and incentives for risk takers at financial firms are fundamentally misaligned with the interests of stakeholders. Outdated accounting conventions and inadequate disclosures make it impossible to evaluate the business models and risks of financial firms. Excessive resources are allocated to proprietary trading, to lending to overleveraged consumers, to regulatory arbitrage, and to low-value-added financial engineering. Financing the development of innovation takes a backseat. Whatever self-reforms and regulatory reforms are now in the works, we do not believe they are likely to restore the rollicking times of old, when banks lent to and invested in businesses, steering the economic transformations of the late nineteenth and early twentieth centuries.

In the next decade, the inadequacy of the financial system will become only more glaring. Opportunities in clean technologies and nanotechnology require large-scale, long-term investments. Unfortunately, most financial firms lack the expertise to invest in business ventures on a sufficient scale, now that a generation of financial professionals has been trained to focus elsewhere. Unless something changes, the gap in funds for business innovation will keep widening.

The solution the authors propose is a government program to provide additional funds that could be loaned to entrepreneurs. The system would be designed to “foster judicious business decisions, competent risk management, and well-aligned incentives.” Recognizing the possibility of politicians doing the things that politicians do, they make this statement: “Of course, every effort should be made to keep FNBI (the First National Bank of Innovation) free of political patronage and popular pressures.”

It’s a valuable idea, one that could really help if done properly. Unfortunately, government programs often have unintended consequences (the bigger the program or policy shift, the bigger the surprise), and any program created and guided by politicians could suffer from political distortions. Could it be done fairly? Is there a risk that money might be misallocated or ultimately diverted from healthy to unhealthy regions of the economy? Crafting an organization that fosters judicious business decisions may not be a reasonable expectation for politicians, so many of whom are unfamiliar with the challenges and rigors of running a business. With the right help and understanding of the challenges and needs innovators face, it could help. But is it solving the right problem? Would there be new unintended negative consequences?

The financial barriers to innovation that many entrepreneurs are facing today can, in my opinion, be largely traced to the failures of previous government efforts to help the economy. Even overlooking the role of the Federal Reserve Bank, Fannie Mae, Freddie Mac, Congress, and other government organizations in creating the housing bubble, the present tightness in credit, in spite of all the misallocated billions of bailout money, can be at least partially traced to the artificially low interest rates created by the Federal Reserve Bank, which allows banks to borrow money for almost free and get safe, lucrative returns by investing in treasuries, whereas loans to entrepreneurs are high risk.

The government actions and policies that have made credit very tight for innovators and people like you and me are discussed in a recent (Dec. 30, 2009) article at Motley Fool, “The Real Reason Banks Aren’t Lending” by Chuck Saletta. Here’s an excerpt:

For one thing, there’s an interesting “carry trade” going on right now that only banks can access. The Federal Reserve set the Federal Funds Rate at around 0%, giving banks an opportunity to borrow at essentially no cost. But 10-year Treasury yields — the typical proxies for mortgages — are around 3.8%. As a result, banks can earn an essentially risk-free 3.8% borrowing from the Fed system and lending to the Treasury, rather than lending to risky borrowers like you and me.

That’s easy money if you’re a bank. With the Federal deficit ballooning, the Treasury is certainly offering the banks plenty of opportunity to buy government bonds, rather than take a risk on traditional lending.

Theft by government fiat
And speaking of risk, several other government policies are dramatically adding to lenders’ risk. . . .

In essence, these policies have diminished the property rights of lenders. In effect, they turn every loan otherwise secured by a change of ownership in bankruptcy into the equivalent of an unsecured credit card. When banks and bondholders lose their ownership rights in bankruptcy proceedings, they lose much of their incentive to loan to anybody that needs the money. That doesn’t make lending impossible, but it certainly makes it tougher and costlier.

Hitting banks particularly hard is the concept of mandatory mortgage modification. Such enforced after-the-fact contract changes make it perfectly clear to lenders that they don’t have the same rights to foreclose they thought they had when they made the loan. Bank of America (NYSE: BAC), for instance, had to set aside $8.4 billion in a mortgage modification settlement with various states.

Without a credible threat of foreclosure, banks have no protection against speculators leveraging up with the banks’ money if those speculators can simply demand a sweetheart deal when their gambles don’t work out.

Other lenders have been hit hard by bad government policy as well. Some of the more pernicious examples include strong-arming bondholders into accepting deals whereby …

•Chrysler was handed over to its unions, Fiat, and the U.S. and Canadian governments, while its bondholders were given a few dimes on the dollar.
•General Motors was also handed over largely to its unions and the U.S. and Canadian governments, with its bondholders getting only about a 10th of the company. . . .

In fact, every time Uncle Sam dictates that lenders have to adjust the terms of their loans, or that bondholders do not deserve their seat at the table when an indebted company files bankruptcy, it threatens to weaken the debt market further. As President Obama’s feckless plea to banks to lend more money underscores, no amount of jawboning will really get banks to widely open their lending spigots again.

Government programs often cause unintended problems that are “fixed” by new government programs, which . . . In this case, I suggest that instead of giving politicians another hand at directing the flow of money to where they think it should go, let’s let the market do that. Let’s restore market rates rather than creating a source of free money for banks, at the expense of the rest of the economy. Let’s let banks compete, along with the rest of us, and let them fail, no matter how big, so that failure will not be subsidized by the rest of us. It was the free market, with the inherit ability to reap reward or failure in taking risk, that made the United States so successful in innovation. That track record of success was not due to government funding or programs, apart from generally appropriate efforts to help people protect their property rights (with some abuses, to be sure, from politicians and barons). Now that there is innovation fatigue in many quarters, the best solution may not be another government program, but perhaps the dismantling of programs or policies that are the source of current innovation fatigue and related barriers.

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