Archive for Intellectual Assets
For those of us working with innovators seeking to build and grow much-needed businesses and bring new valuable new products to the world, it’s painful to survey the damage that has been done to the patent system in the United States over the past decade and the corresponding damage to innovation. Many factors have come together in a perfect storm of patent hostility, driven in part by rhetoric about dread “patent trolls” spread by Silicon Valley giants whose business models are threatened by the pesky patents of other parties but also by political hostility to pharma patents, perhaps because the unmanageable costs of Obamacare might be reduced somewhat if drug costs could be driven down by reducing the value of IP.
The hostility came in several waves. The American Invents Act created several new ways to gut patents, most particularly the Inter Partes Review (IPR), which would allow opponents and their allies to file endless actions against existing patents to wear down the owner and in nearly 90% of the cases so far, eventually eradicate key claims. There would also be a series of Supreme Court decisions such as the Alice decision that would make it easier for the USPTO to reject patents by declaring the invention to be “abstract.” What does “abstract” mean? The Supreme Court refused to define the term in their decision, giving examiners and courts a hammer they can swing any way they want. And then there would be a series of actions from the USPTO itself, headed by a former Google attorney highly sympathetic to the anti-patent sentiments of Silicon Valley, which went beyond the requirements of the law and of judicial decisions to exacerbate the hostility toward patents.
One of the most shocking aspects of the war on patents has been the discovery that the judges of the PTAB, the Patent Trials and Appeals Board the runs the IPR system, have no code of ethics beyond the basic requirements for any employee in the Dept. of Commerce. Thus, unlike judges in any other area, the judges of the PTAB can take cases from their former clients. General rules for Commerce employees requires a one-year buffer for cases with a potential conflict of interest, but for judges in the US judicial system, the distance must be much greater. In general, a judge simply should not take a case involving a former client regardless of how long ago the financial relationship ended. But with the scandalous lack of a judicial code of ethics for PTAB judges, questionable cases occur and with easily predicted results. Gene Quinn and Steve Brachman of IPWatchdog write forcefully on this scandal here and here.
The PTAB has been called the “death squad” of American patents, and some of its judges seem to relish that role.
Michelle Lee, the Google-tainted director of the USPTO, has at least been removed from that position, and many patent practitioners and patent seekers hope that the new leader will be free from heavy Silicon Valley influence and will take bold steps to curtail the damage being done to the US patent system. Meanwhile, many innovators are looking to other countries to develop their innovations, including places like China where IP is increasingly valued and supported. May the US catch up!
Be careful about the vehicle you’ve been driving. As sturdy, tangible, useful, and inventive as it looks to you, it may turn out to be merely an abstraction, perhaps nothing more than the mere idea of “transportation” or “going places,” making it unworthy of the thousands of patents protecting its numerous technologies — if the USPTO and America’s elite judges get their way. An abstract automobile? You don’t want to be caught dead driving one. Unfortunately, since the USPTO’s Patent Trial and Appeal Board (PTAB) just ruled that an MRI machine is abstract and thus not patentable under the odious and vague principles of the Supreme Court’s recent Alice decision, it could be that automobiles and virtually every other machine under the sun could be next on the anti-patent chopping block. Your trusty Toyota or your faithful Ford are about to go abstract on you, courtesy of the USPTO. Look out.
In the PTAB’s elite view, as Gene Quinn explains, all the physical wizardry of the mighty MRI machine as claimed in a recent patent application for an improved MRI is just an abstract idea based on the abstraction of “classification.” It defies logic and defies the requirements of the Alice decision and the USPTO’s rules for applying Alice, but the PTAB has become a patent munching zombie that doesn’t seem bound by logic or law. They are one of the strongest forces promoting innovation fatigue. Many innovators are just giving up or going to other nations where IP rights are more meaningful.
The anti-patent forces that have taken hold of far too many influential posts in America view property rights and especially intellectual property rights as a barrier to the ideal society they envision. If only we could get rid of patents, they seem to think, drug prices would fall and Obamacare, for example, would not be such a disaster. But the bounty some intellectuals promise by weakening property rights is an illusion, for without IP rights, what is the incentive to take on the risks and costs of innovation if you cannot benefit from the occasional successes that come from your uncertain work? If your hit product can be taken and marketed by others who did not have to spend so much time and money developing it, then the inventor is often at a competitive disadvantage to everyone else. Why bother?
America’s war on patents is a war on the future of innovation. It’s a war we cannot afford to lose.
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.
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
The recent Alice decision from the Supreme Court threatens patents for many innovators working with computers, software, information, and knowledge–in short, the heart of the modern Knowledge Economy. By waving around the undefined word “abstract”–a word that the Court expressly refused to define–they have ruled that a major part of the economy is simply not eligible for patent protection. An article at the popular IP blog, PatentlyO, seeks to explain if not justify the Court’s ruling. In “Alice, Artifice, and Action,” Jason Rantanen elucidates the thinking of the Court as he explains that the problem with the invention in Alice is that ultimately, what it involved “is just information” and thus intangible or abstract, unworthy of patent protection. I recognize this is a widely held belief, but it is not based on modern science. Maybe superstition, but not science.
It’s time for those in the IP profession to recognize what many scientists and engineers have long understood: that information is physical. Just as e=mc^2 helps us understand the relationship between matter and energy, the laws of thermodynamics plus a good deal of modern quantum mechanics and other fields helps us understand the physical relationships between information, matter, and energy. Entropy is one of the key physical concepts that helps us appreciate that linkage. See Wikipedia’s article on this topic at http://en.wikipedia.org/wiki/Entropy_in_thermodynamics_and_information_theory.
Information cannot be processed without physical, material change often affecting more than just physical entropy alone. That information processing may be in the form of electronic signals, computer chips, magnetic media, graphical interfaces, or chemical reactions with DNA (DNA, of course, is “just information” encoded with a brilliantly simple and tangible system).
In the Industrial Age, we focused on inventions made with cogs and pistons, steel and glass–crude, weighty, and easy to touch or see. Their making and their use involved smoke and flame, clangs and whirrings that nobody could miss. But we have moved into the the Information Age, where the greatest innovations that will drive our economy, the Knowledge Economy, are much finer, often microscopic, involving silent, invisible (to the naked eye) change that is still every bit as physical and real as anything a blacksmith hammered out. To dismiss the workings of the new electronic machines of our day and their many fruits as mere abstractions, intangible, immaterial, the whisps of ethereal spirit devoid of substance, is to miss the reality of the greatest era of innovation and invention ever. To exclude inventions in handling information as inherently unpatentable is a tragic error, one that contributes concretely to the growing innovation fatigue in the U.S.
My latest post here at Innovation Fatigue lamented the actions of the USPTO in their apparent war on patents involving natural products. New information makes the story even more troubling than before, indicating that more than just judicial error and bureaucratic blindness was involved. The steps taken appear much more deliberate and political than that, and reflect an increasingly revolutionary attitude toward patent rights holders, where IP is viewed as the problem, not as a vital tool to benefit society.
First, new insight into the actions of the USPTO comes from a leaked USPTO PowerPoint used to train patent examiners on the radical new USPTO guidelines implementing their extreme response to the Myriad decision. A PDF of the PowerPoint slides, coupled with the USPTO guidelines and some vital commentary have been compiled by Hal Wegner and are kindly provided by a great champion of IP (quality IP, that is), Greg Aharonian, Director, Center for Global Innovation/Patent Metrics. Wegner observes that the new guidelines, which require inventions involving natural products to be “significantly different” than what may be found in nature provide no concrete, objective test to determine when a claimed invention is “significantly different” from ineligible subject matter. Is a creative device made out of wood significantly different from naturally occurring wood? Is a new anti-cancer drug extracted from a newly discovered fungus significantly different? Who knows? The uncertainty created by the test can be disastrous for property rights holders. Wegner points out that a much more useful and concrete test already exists: the Papesch test for determining whether the claimed invention as a whole is nonobvious from the prior art. But this was never mentioned by the Supreme Court in the infamous Myriad decision and has been neglected by the USPTO as well.
In a recent email to his subscribers, Greg Aharonian shares an email sent to him by a biotech patent examiner within the USPTO. It helps explain some of the motivation behind the seemingly crazy USPTO action, which isn’t so crazy at all from the perspective of politics:
1610 examiner here again. We examiners in biotech at the PTO also would like to know ourselves who wrote those ridiculous guidelines. We are being told to stretch 101 as much as possible. The guidelines say that, for example, if claim 1 is an assay method, with steps such as centrifugation, column chromatography, mixing reagents in a test tube, spectrophotometric measurements, if each category of technique was known at the time of the invention (is routine/well known/conventional), forget about whether the step was ever done with the molecules in the claim, we have to write how each step is 103-obvious w/o using 103’s word “obvious”. We have to write somehow how the combination is 103-obvious, w/o the using 103 word “obvious”. Then we have to reject the claim under 101. We don’t know if the PTO requires art cited for each step that is obvious.
Now, Funk Bros. v. Kalo Inoculant, one example in the guidelines, is a decision in which the patented composition, which I think is amazingly clever, was considered not to be inventive. The decision involves 103, not 101. How could the PTO so thoroughly confuse 101 with 103?…
Myriad was politically motivated, filed by the ACLU, because poor people can’t afford the BRCA1 gene test. OK, this is the Obama era, max political correctness. Current politics ruled. The test, however, is expensive and difficult to do. It’s not in the test strip category, like a pregnancy test.
But Mayo v. Prometheus takes the cake. The drug and its metabolites are not natural products. So what is the natural phenomenon that the justices never mentioned? And the clever part is looking for a target concentration of one synthetic metabolite in red blood cells.
What seems to be forgotten is that patents are intellectual property and that patented inventions are new and useful. When intellectual activity is maligned rather than rewarded, the economy goes with it. The PTO seems to be under pressure from the White House, because biotech patents don’t jive with Obamacare, which is backfiring.
Yes, it is high time for patent attorneys to fight back (don’t laugh Greg). David Kappos cut our time for examination, but he increased customer service. Time for the customers to demand more service.
The biotech community seems afraid to speak out too loudly on these outrages, but I think savvy investors see a dimmed future and have begun pulling some of their money out of the field (my guess about the recent plunge). The patent community and the business community is remaining far too silent, perhaps afraid of attracting political wrath, but the losses of IP rights could seriously set back innovation in the US and beyond.
China is ramping up its IP system and strengthening protection, while America is declaring IP to be the problem and weakening IP rights. Who’s going to own the future? I’m living in beautiful Shanghai now, where a lot of the future seems to be sprouting in an increasingly pro-IP environment. Meanwhile, I hope America will come to its senses and return to vigorously protecting IP rights and promoting innovation, not innovation fatigue.
Maybe China is just too far from the smug innovation circles of the West. Maybe language and cultural barriers make the events unfolding in China too inaccessible to Western media. Maybe decades of concern about IP theft from Chinese companies has closed the eyes of the West to present realities. Whatever the reason, the West today seems generally blind to the innovation powerhouse that China is becoming. Witness, for example, the highly publicized list from Reuters-Thompson of the top 100 global innovators, based on “patent activity.” With China having become one of the world’s true hotbeds of patent activity, not to mention economic impact with innovation in many fields, one might expect Chinese institutions to be well represented on the list. Incredibly, the list has ZERO Chinese entities on. None from Mainland China, none from Taiwan, and none from anywhere else in Asia except for a heavy dose of Japanese companies (27) and 4 from South Korea. Tiny Switzerland makes the list 3 times, and its minute neighbor, Liechtenstein, makes the list with Hilti Corporation. But zero from China and Taiwan? The list is related to “patent activity,” but its compilers wisely recognize that patent volume alone is a poor metric for innovation. Instead, they have created other metrics based on patent data:
The Thomson Reuters 2011 Top 100 Global Innovators are companies that invent on a significant scale; are working on developments which are acknowledged as innovative by patent offices across the world, and by their peers; and, whose inventions are so important that they seek global protection for them.
Sounds fair. So sure, the manufacturing and supply chain innovation that has been a big part of China’s economic rise are not expected to make a showing on this list. That kind of innovation doesn’t show up in terms of granted US and European patents. And the tendency for many Chinese companies to mostly file patents in China doesn’t help them with the methodology Thompson Reuters has, which looks for measures of international impact and international patents. But did they miss all the international activity of some Chinese companies? For example, a couple of days before this list of innovators came out, I posted this on LinkedIn and Twitter (@jefflindsay):
Two Chinese companies, ZTE and Huawei Tech., are among the top 5 international (PCT) patent applicants. Lots of IP here! https://is.gd/t2tUb4
OK, so Thompson Reuters doesn’t follow me, but these companies should have shown up strongly in their patent searches. These are innovative companies with products marketed internationally, having strong economic impact, and loads of patents. Being in the top 5 for international filings wasn’t good enough to even place in the top 100 for Thompson Reuters. Huh? OK, it turns out the ZTE’s surge in patent filings is recent and their numbers prior to 2010 were probably too low to make the cut for this study–that’s fair. But Huawei had 445 US patents from 2005 to 2010, a number in greater than some other companies on the list. For 2011, by the way, Huawei isn’t just in the top 5 so far–they are Number One, the world’s leader in international patent filings (see the Nov. 2011 article in the Vancouver Sun). Think they’ll be on the next list of leaders in patent activity Thompson Reuters publishes? Perhaps, who knows?
How about the Liechtenstein firm that’s in the Top 100, Hilti AG. Heard of them? They have good products for the construction and building maintenance industries such as hammer drills and other tools. They have 20,000 employees, including 2,500 in the US, and market products and file patents internationally. For the 2005-2010 time frame of the Thompson Reuters study, Hilti had 327 patents. Not bad. Well below Huawei’s score, but still respectable.
Now let’s consider a little company that was not on the list: Foxconn. Heard of them? They have over 1 million employees and are the world’s largest producer of electronic components, including circuit boards. They are the ones who actually make Apple’s products such as the iPhone and iPad. This Taiwanese/Chinese firm (China considers Taiwan to be part of China, and much of Foxconn’s work is in China) is arguably the real powerhouse behind the success of Apple and several other companies on the Thompson Reuters list. Foxconn builds Apple’s products, and not just as a mindless executor, but as an innovative partner.
Ah, but what about real technological innovation expressed in patents? Surely Foxconn is just about cheap labor and low cost manufacturing, right? A quick search of Foxconn patents granted in the US from 2005 to 2010 shows they have over 700 patents. Some are design patents, but the vast majority are technological. Foxconn apparently is conducting serious R&D and spending millions on patents to find new ways to make leading edge high-tech products better, safer, faster, and cooler (both in terms of heat management and the “wow” factor). I have the privilege of interacting with some Foxconn people and from what I’ve seen and heard I can say that they have a world-class IP program to support innovation, and I feel that they are way ahead of many Western companies in these areas. Foxconn innovation and Foxconn IP may be the real key to Apple’s success. Foxconn innovation is abundantly expressed in patents, not just trade secrets and know how, with an estate twice as big as Hilti’s over 2005-2010 and an economic impact on the global market far in excess of Hilti. But Foxconn doesn’t make the list. How do none of these Chinese companies break into Thompson Reuters’ Top 100? Did they miss the 2010 story, “China Poised to Become Global Innovation Leader,” based on patent activity? That must be from another source they don’t follow.
Nov. 24, 2011 Update: My search on Foxconn patents needs to be updated. Yes, Foxconn has an impressive 700+ US patents for the 2005-2010 period, more than some companies in the TR list. But my search was deficient, failing to consider that many Foxconn patents might have been filed under the real name of the company that owns Foxconn, Hon Hai Precision Industry Co., Ltd. So I expanded my search term to be “Hon Hai Precision” or Foxconn. Now, instead of 700 patents, we’re looking at a massive estate of 5,872 US patents (perhaps a couple dozen more when typographical errors are considered). This estate now dwarfs MOST of the companies on the list such as Brother Industries (2873, searching for Brother Ind* or Brother Kogyo), BASF (2771, searching for BASF or Bayerische Akt*) Goodyear (1152), ABB (948), Airbus (926), Avaya (<600), Arkema (205), Cheil (116), etc. Oh, and what about innovation giant Apple Compute? A search for simply “Apple” (which might include some smaller companies unrelated to Apple Computer) returns 1809 issued US patents from 2005 to 2010, less than 1/3 of the US patent activity of the invisible innovator that makes Apple what it is.
Let’s return to Huawei for a moment. There should be little doubt about the innovation prowess of Huawei, even though they tend to be far more secretive and do much less P.R. than Apple. But this telecom company is big (with over 100,000 employees, they connect 1/3 of the world’s cell phones) and highly innovative. Read, for example, BBC’s story, “Innovation in China: Huawei – the secretive tech giant.” Maybe the Thompson Reuters methodology docks them for being on the young side. Over half of their 445 US patents from 2005 to 2010 came in 2010–but they still clearly outpace Hilti and others over the 5-year span of the study. So what gives? I suspect that the youthfulness of the estate means there has been less time for others to cite Huawei patents, and that may be part of the problem since patent citations are part of the methodology. But to miss Huawei completely?
Thompson Reuters will surely argue that their methodology was developed and implemented fairly, even blindly (a fair term), but someone should have immediately seen that something was wrong if top international filers and innovators like Huawei, and Foxconn didn’t make the list. But when it comes to innovation, innovation in China tends to be largely invisible to Americans, who are stuck in the old paradigm of US being the innovation leader and China just being a copier. That kind of blindness will catch the West by surprise in the very near future when US companies find themselves facing numerous patent barriers from the Chinese companies that will own much of the most valuable IP. China is creating and will create much of the most important global innovation for the future. Innovation needs to ramp up in the West in order to not be left completely behind.
Dec. 8 Update: Chinese computer giant Lenovo, the world’s 2nd largest producers of personal computers, may also deserve to be on the list.
- IAM Blog: “The US, Japan and France dominate new listing of the world’s most innovative companies“
- Nielsen.com: “Nielsen China Forum: Dispelling the Myths of Innovation in China“
- China Law Blog: “Innovation In China. It’s Happening, But Not How You Think“
- Tech Crunch: “Thomson Reuters Names ‘Top 100 Global Innovators’“
Startup companies, unlike our “too big to fail” banks, can’t afford to make too many Enormous Mistakes without perishing or losing much of their value. One of the Enormous Mistakes that some startups make is neglecting intellectual property. That includes neglecting opportunities to protect their business, as well as the need to make sure they aren’t infringing other patents. These are separate issues and require separate efforts and tools. Some of the common mistakes and misconceptions of startups regarding IP are addressed in the slideshow presentation below, “What Do Startups Need to Know about Patent Law” by Jeffrey Schox.
An important point that Schox makes is that reasons smart startups file patents aren’t necessarily because they expect to license their technology or successfully sue a competitor. But having an issued or pending patent with some degree of quality is essential for attracting investor support. Investors typically expect a startup (in many fields, at least) to have IP that can be of value to the business for many years to come and can help limit the harm of competitive copying. Without that in place, that startup is much less likely to get the funds needed to thrive.
Patents play different roles at different stages in the life of a company. But neglecting IP at any stage is an Enormous Mistake that can lead to extinction.
Ask the leaders of a business how much they spend on printing. The response can be interesting, even hilarious. It’s an expense that is easily overlooked yet can be substantial. Few companies know if they are being overbilled. Decisions may be handled by cloudy processes where influences other than quality and value sometimes hold sway. Indeed, the fundamentals of the procurement process in many companies leave inefficiency if not outright abuse. The problem isn’t just in printing, either. Many parts and services handled through standard procurement systems can result in excessive costs. Enter an interesting business model innovation: E-Lynxx. For added spice, we’re talking patented business model innovation. Yes, E-Lynxx has a business model enhanced with the aura of two US patents.
William Gindlesperger is the founder and CEO of E-Lynxx. My source tells me he has over 25 years of experience in the printing industry, where found that the decision making process was antiquated and left companies vulnerable in many ways. He pursued business model innovation to come up with a system that could make the process transparent and more efficient. Under his business model, be provides software and services up front at not cost, getting paid only when the client saves real money from his work. Then he gets a cut of the savings. Low risk.
When a company turns to E-Lynxx, they receive software and training in how to use E-Lynxx’s open auction system. Bids are offered to a large array of qualified vendors who then bid on the deal. The vendors can see the competitive bids and so can the client. This transparency helps bring costs down substantially, often reducing print costs by 25-50%. E-Lynxx gets part of the savings. What’s not to like? Well, those who aren’t getting as much gravy might not like it, but if it’s your business, these kind of cost savings should be welcome news.
Here’s claim 1 of E-Lynxx’s first patent, 6,397,197, assigned to the CEO and founder himself:
1. A method for competitive bidding by print information product vendors comprising steps of: inputting a plurality of vendor records into a storage of a general purpose computer, each of said vendor records having a data field identifying a print information product vendor and a buyer identification data field identifying a buyer that said vendor is associated with, at least one of said vendor records having a vendor capability data representing a set of vendor manufacturing capabilities of the vendor identified by said record; inputting a buyer’s invitation-for-bid data into said general purpose computer, said buyer’s invitation-for-bid data having a buyer identification data, and having an invitation for bid on a print information product job from said buyer; calculating a vendor requirement data from said buyer’s invitation-for-bid data, said vendor requirement data representing a set of vendor manufacturing capabilities required for performing said print information product job; comparing said vendor requirement data to a plurality of said vendor records having a buyer identification data field identifying the buyer from which said buyer’s invitation-for-bid data was received; identifying at least one vendor record as qualified, based on said comparing; transmitting a vendor’s invitation-for-bid data based on said buyer’s invitation-for-bid data to each vendor identified by said at least one vendor record; inputting into said general purpose computer a plurality of bid data, each from one of said vendors to which said vendor’s invitation-for-bid data was transmitted, each of said bid data representing a bid price; identifying a bid data from said received bid data having the lowest represented bid price; outputting a selected vendor data representing the identity of the vendor corresponding to the bid data identified by said identifying step; and transmitting an order to the vendor represented by said selected vendor data.
Here’s claim 1 of their second patent, US 7,451,106:
1. A method for facilitating a buyer’s selection of a vendor via automated comparison of records and bidding by vendors of customized goods or services via a computer operated system, comprising steps of: prior to receiving job data from a buyer pertaining to a job for which the buyer seeks a vendor, receiving electronic communications from a plurality of vendors, the electronic communications being used in establishing a plurality of vendor records which are stored in an electronic memory associated with the computer system, the vendor records corresponding to each of a plurality of vendors and having vendor capability data identifying a plurality of capabilities for said vendor to provide a customized good or service; each buyer using the system generating an electronic communication providing information identifying a plurality of vendors for inclusion in a pool of vendors associated with said buyer to potentially receive a job solicitation, wherein the system stores electronic data sufficient to identify every vendor pool and its association with a corresponding buyer based upon the buyer transmitted vendor pool identification information which occurs prior to analysis of job data pertaining to a job for which bids are sought by or on behalf of the buyer; receiving an electronic communication defining a job data from or on behalf of at least one buyer, after said buyer’s vendor pool is determined, said job data including a job descriptor data which specifies a plurality of characteristics of said customized good or service for which said buyer wishes a bid; automatically comparing via a computer processor said vendor records to said job data, wherein said comparing includes comparing said plurality of characteristics for said customized good or service with corresponding plural capabilities for vendors from the pool of vendors associated with said buyer; automatically identifying via a computer processor at least one subset from the buyer’s associated pool of vendors as qualified for receiving the solicitation, based on said comparison; thereafter transmitting the solicitation to only selected members from the identified subset of the buyer’s associated pool of vendors; receiving bid response data from at least one of said vendors which received said solicitation, said bid response data identifying each of the vendors from which it was received and a bid price; and outputting to said buyer an electronic communication providing at least one of said bid response data.
And here’s claim 1 of 7,788,143:
1. A method for facilitating a buyer’s selection of a vendor via automated comparison of records and bidding by vendors for customized goods or services via a computer operated system, comprising the steps of: prior to processing job data from a buyer pertaining to a job for which the buyer seeks a vendor, receiving and processing electronic communications from a plurality of vendors, the electronic communications being used in establishing a plurality of vendor records which are stored in an electronic memory associated with the computer system, the vendor records corresponding to each of a plurality of vendors and having vendor capability data identifying a plurality of capabilities for said vendor to provide a customized good or service; receiving an electronic communication from or on behalf of any buyer using the system which provides information identifying a plurality of vendors for inclusion in a pool of vendors associated with the buyer to potentially receive a job solicitation, and storing electronic data sufficient to identify every vendor pool and its association with a corresponding buyer based upon the received electronic communications from the buyers providing vendor pool identification information, the vendor pool identification information being processed prior to analysis of job data pertaining to a job for which bids are sought by or on behalf of the buyer; receiving an electronic communication defining a job data from or on behalf of at least one buyer after the buyer’s vendor pool is determined, the job data including a job descriptor data which specifies a plurality of characteristics of said customized good or service for which the buyer wishes a bid; automatically comparing via a computer processor said vendor records to said job data, wherein said comparing includes comparing said plurality of characteristics for said customized good or service with corresponding plural capabilities for vendors from the vendor pool of vendors associated with the buyer; automatically identifying via a computer processor at least one subset from the buyer’s associated pool of vendors as qualified for receiving the solicitation, based on said comparison; thereafter transmitting the solicitation to only selected members from the identified subset of the buyer’s associated pool of vendors; receiving bid response data from at least one of said vendors which received said solicitation, said bid response data identifying a bid price for the corresponding vendor; and outputting to said buyer an electronic communication providing at least one of said bid response data.
Another patent is still pending.
Business method patents are still alive and can play important roles in some companies. Whether they are needed or not for this company, I like the innovative approach that E-Lynxx is taking to bring the procurement process into the light where more efficient transactions can occur with large costs savings.
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.