Archive for IP rights
In Conquering Innovation Fatigue, we explain how “Patent Pain” is one of the external innovation fatigue factors that can slow down innovation. This factor includes actions by courts and lawmakers that add to the difficulty and expense of protecting intellectual property rights. A new aspect of this problem is the recent explosion in risk to patent holders–particularly the holders of “used” patents (patents directed to products that the patent holder markets). This risk stems from a recent Federal Circuit decision, Forest Group, Inc. v Bon Tool Company (link is to the PDF file of the Dec. 28, 2009 decision). The controversial aspect of this decision is that it suddenly changes the way the law has been applied in a way that could severely punish patent holders for what might be an innocent mistake.
The law provides a penalty of up to $500 per offense for false patent marking–inappropriately marking a product with a patent number such as one that has expired. It can be an act of intentional fraud or, in many cases, a simple mistake. That $500 penalty per offense has long been interpreted as $500 per continuous false marking act, not as $500 for every falsely marked product. All that changed a few months ago, thanks to the Federal Circuit Court’s decision. Now if you sell a billion packages of diapers and one of the patents listed happens to have expired a few months ago (oops, clerical error!), you could be sued and face up to $500 billion in penalties. Even if reduced to a mere, say, $50 million, it’s extremely dangerous for a corporation. Naturally, this has drawn in swarms of lawyers and looks like it could create a whole new cottage industry based on sucking capital out of the veins of those who actually use the patents they obtain. Patent holders are rushing to check their patent markings more carefully and to redo packaging (an expensive process, unfortunately) to ensure that expired patents are taken off.
The social harm of listing an expired patent on a product seems virtually negligible. A competitor interested in copying the product will naturally look up the patent and determine if the claims might be a barrier, and in this process can readily see whether it has expired. Yes, it’s a form of false advertising, but not because a real patent wasn’t obtained, only because it eventually expired and the marking wasn’t updated yet. Not as serious as making up a bogus patent number and listing that for honor never earned. $500 for a continuous act of false marking may seem too light a punishment (the law was written back when $500 was worth something), but up to $500 per product strikes me as ridiculous and threatens to only further penalize and discourage producers and innovators.
Here’s hoping that Congress will correct the abusive application of the law by the Federal Circuit and make owning a used patent less dangerous.
Related story from the Wall Street Journal: “New Breed of Patent Claim Bedevils Product Makers” by Dionne Searcey. This story discusses a more recent ruling that overturned a decision saying an attorney suing Brooks Brothers for expired patents had no legal standing to sue. Now lawyers everywhere can join in the feeding frenzy.
Update, Sept. 3: One of my favorite IP strategists asked what constructive steps we could be taking to help clients deal with this threat, apart from diligently checking every marking. Tough question. What if products were marked with codes—could be simple six-character strings that you plug into tinyrul.com or some other website–to bring up a page with the current patents applicable to a product? The page could be automated so it is tied in to patent databases so that only current patents are displayed, and/or status information was displayed for the patent. Thus, if a product does have a patent associated with it when packaging is designed, instead of listing the patent number(s), why not list something like: “For related patents, see PatentMarking.com/14Zq2”.
Could this indirect approach fully meet the demands of patent marking and provide sufficient notice? Perhaps not without a tweak of the law, but I’d be happy to see an electronic solution.
When I gave the example with PatentMarking.com, I hadn’t yet checked out that URL and was just throwing out what sounded like a good domain name for such a tool. Turns out that OceanTomo owns it and is using it for a related purpose. Cool! Glad to see that they are advocating online marking of patents.
So why not print each product or its packaging with a code that links the product to a website for automatically updated information, with disclaimers and means for flagging corrections to reduce corporate liability if something goes wrong with the automated process? Could this help reduce the future threat of patent marking sharks trying to shake down companies for millions of dollars for innocent and hard-to-eliminate marking errors?
Another update: Greg Aharonian‘s latest PATNEWS newsletter mentions the WSJ article, rejects the outrageous notion that false marking of patents is a serious evil, and contends that Congress should make these lawsuits illegal that seek to shake down companies for millions due to a marking mistake. May that happen swiftly! Thanks, Greg.
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.
In my ongoing work on analyzing the intellectual property landscape in biofuels, one of the most impressive companies I’ve run across is Amyris, a renewable products company whose clever use of synthetic biology goes far beyond biofuels. Amyris was founded by Kinkead Reiling, Neil Renninger, and Jack D. Newman who met at Berkeley and founded Amyris in 2003, headquartered in Emeryville, California. With a grant from the Bill & Melinda Gates Foundation, they first developed their technology under a non-profit initiative to provide a reliable and affordable source of artemisinin, an anti-malarial therapeutic. It was viewed as a long-shot, but they found success that paved the way for the growth of the company into other areas. They are now developing new microbial strains that can produce other useful molecules from renewable feedstocks. This industrial synthetic biology platform is providing alternatives to a broad range of petroleum-sourced products. he extremely useful molecule farnesene is an important part of their business. It provides a compound that can be used to produce flavors, perfumes, detergents, cosmetics, biodiesel, and other products.
This week Amyris created a stir by announcing a record number of deals and partnerships for a single week (a record among bioenergy companies, according to Biofuels Digest). These partnerships include P&G, Total, Soliance, Cosan, M&G Finanziaria, and Shell:
Amyris has taken it up a notch with a series of stunners surrounding its synthetic farsenene, which it has named Biofene – the first product that Amyris is seeking to produce at commercial scale.
Beyond its success this week with Biofene announcements, which are the basis for the P&G, M&G and Soliance partnerships — there are the broader arrangements with Cosan to develop a platform in renewable chemicals, and the equity agreement with Total that will provide needed capital as well as a broader platform for Amyris’s expansion into hydrocarbon fuels.
The mysterious agreement with Shell, regarding diesel, is one to watch. The decidedly vague disclosure was buried in Amyris’ amended S-1A registration statement, but not otherwise mentioned in a flurry of press releases from the company as it promotes its expansion in this pre-IPO environment. Shell Western Trading & Supply is one of 17 Shell trading companies that buy and sell to customers within and outside of Shell.
This news shows an interesting example of companies forming partnerships with an innovative start-up with great technology and apparently highly valuable IP. According to my Patbase search, Amyris has 21 patent families, quite a large number for such a young company. They clearly have been active and aggressive in pursuing patent protection, and those patents are critical for the meaningful partnerships they are now forming. It’s a great unfolding story of open innovation and technology transfer.
The story extends beyond the US. They have operations in Brazil, for example, which is one of the world’s hotbeds for bioenergy, bioproducts, and collaborative innovation.
Further information comes from today’s article, “Amyris: farnesene and the pursuit of value, valuations, validation and vroom,” also from Biofuels Digest.
Gene Quinn’s article, “ Proposal: Unlocking Job Growth with Patent Acceleration” over at IP Watchdog, reminds us of the powerful link between IP rights and economic growth. It’s an issue we take up in Conquering Innovation Fatigue when we discuss Hernando de Soto’s findings (countries with respect for property rights have much better economic growth than those that don’t respect property rights). It’s an issue that Congress needs to take up if they really want to stimulate economic recovery and growth. As Thomas Jefferson said, innovation needs encouragement, and a strong, efficient patent system is one of the best encouragements.
Gene offers some specific suggestions that could help stimulate innovation, entrepreneurship, and job growth through a more efficient patent system. Change is needed. The years of waiting to get a patent and the other inefficiencies of the US system in recent years need addressing immediately. Strengthening our system and making it more manageable for start-ups and lone inventors would be an important step forward in mitigating innovation fatigue.
Innovation fatigue due to inadequate intellectual property rights and property rights in general occurs in many other nations today, and is strongly correlated with economic difficulty in such nations. Hernando de Soto, a Peruvian economist and winner of many awards such as the 2006 Innovation Award from The Economist for the promotion of property rights and economic development, has shown that lack of property rights has been a key factor in keeping poor nations poor. It is respect of property rights that creates the means for men to be equal in opportunity. Intellectual property rights are part of that, and when they are in jeopardy, we should be concerned.
In Brazil, for example, a nation with tremendous potential for further economic development, recent government actions related to a trade dispute with the US over cotton threaten to reduce the value of US patents held by people in Brazil. In “Brazil Close to Declaring War on US IP” over at IAM Magazine, we read about the dangerous actions being taken by the Brazilian government. There may be many long-term costs for whatever short-term gains they obtain. This could harm innovation and economic development in that nation.
One example in the US of the attack on patent rights comes from the recent court case Association for Molecular Pathology v. USPTO in which a body of patents obtained by Myriad Genetics (NASDAQ:MYGN) has been declared invalid by a judge using dubious arguments presented by the ACLU. I am especially troubled that the patents were declared invalid for not treating patentable subject matter under 35 U.S.C. § 101.
Eric Guttag over at IP Watchdog offers some convincing arguments about the absurdity of the ACLU’s position and the injustice of Judge Sweet’s rulings. Please read the full article, “Foaming at the Mouth: The Inane Ruling in the Gene Patents Case.” Here is one excerpt:
What is most alarming about Judge Sweet’s opinion is his characterization (or more appropriately mischaracterization) of the CCPA’s Bergy case. Judge Sweet makes numerous quotes from Judge Rich’s opinion in Bergy on how 35 U.S.C. § 101 should be interpreted. But what Judge Sweet neglects to point out is that Judge Rich ruled in Bergy that a biologically pure culture was deemed to be patent-eligible under 35 U.S.C. § 101. Why did Judge Sweet neglect to point out this highly relevant fact? Instead, if the holding in Bergy is considered in appropriate context, it supports Myriad’s “isolated” BRCA1 and BRCA2 gene sequences as being at least patent-eligible under 35 U.S.C. § 101 because they don’t exist in nature and cannot exist without significant human intervention. . . .
In the end, it is my considered opinion that Judge Sweet knew the result he wanted to reach (i.e., invalidate Myriad’s patents), and simply cobbled together a justification for it. (Treating the claims in Myriad’s patents are a “lawyer’s trick” also doesn’t suggest impartiality.) If nothing else, there is enough of a dispute about the essential facts needed to reach Judge Sweet’s conclusion to deny the plaintiff’s motion for summary judgment of invalidity based on 35 U.S.C. § 101. That Judge Sweet needed to spend 152 pages trying to justify his grant of plaintiff’s motion for summary judgment speaks volumes about why this grant was inappropriate.
At many levels in the US and in other nations, there seems to be an increasing hostility toward patents and intellectual property rights for inventors. One of the best things that can be done to stimulate the economy right now would be to strengthen the USPTO, reduce examination time, and instill a healthy respect in the judiciary for property and intellectual property rights. Adding to the uncertainty, cost, and delay of patent protection only weakens the economy, and hinders innovation through yet another “innovation fatigue factor.”
One of the real champions of innovation and entrepreneurship, Brian Fried, has created a successful new radio program to meet the needs of inventors and entrepreneurs: Got Invention Radio at GotInvention.com. It’s a one-hour show every Thursday night at 7:00 p.m. CST (if you’re in China or Singapore, for example, that should be 8 a.m. Friday morning–the perfect way to start your day!) I’m the next guest this Thursday night. I’ll be speaking about intellectual property, with practical tips for inventors who want to get quality patent protection. There are some pitfalls to avoid and some tips you need to know about. A quality patent can make all the difference for the long-term success of a product or business, so tune in and join the conversation.
At least two callers will receive free copies of the book, Conquering Innovation Fatigue. Please mention this blog when you call!
Go to Gotinvention.com/shows and click on the green area in the upper right-hand portion of the screen to launch your media player and listen. To be a caller, dial 877-474-3307. Please join us this Thursday night, March 18.
The following week, March 25, you can hear Cheryl Perkins, CEO of Innovationedge. Don’t miss that one, either!
One of the most interesting patent attorneys on the blogosphere is the inimitable Gene Quinn of IPWatchdog.com. His top five patent stories of 2009 are especially noteworthy. He doesn’t exactly hold back on his opinions about these stories, and for the most part I have to agree. All of these stories fit in with the theme of innovation fatigue in some way.
Quinn’s Top Story #4, “USPTO Allowance Rate, Backlog and Pendency” is a topic we address in our book and one of grave importance for the economic welfare of this nation. We bemoan the sharp drop in allowance rates and the increased time it now takes to get a patent allowed. We worry that this adds further discouragement to innovators and harms the economy. Quinn makes even bolder statements:
I think the allowance rate, backlog and pendency issues deserve their own place in the top 10 because of the toll that it has had on the US economy, which is inexcusable and darn near treasonous during a recession as bad as anything we have seen since the Great Depression, and perhaps on par with the economic troubles of the late 1970s.
During the first quarter of 2009 the allowance rate for patent applications dipped to 42%. At the end of fiscal year 2009 there were 1,207,794 patent applications pending at the US Patent Office, with 735,961 of those still awaiting first action by a patent examiner, which means that 735,961 patent application had yet to be picked up and even looked at substantively. At the end of FY 2009 the average length to first action by a patent examiner was 25.8 months, and the average total pendency of a patent application was 34.6 months, up from 25.6 and 32.2 respectively for FY 2008. [Quinn then explains that the real pendency may be 50% higher because people often need to file a new application, a Request for Continued Examination, after the first gets a final rejection. This restarts the clock and obscures just how long it takes on average to get a patent issued.]
To put this into some historical perspective, take a look at the chart [see Quinn’s original article]. You can see that the backlog started its upswing noticeably in 1998, and just went out of control over the last decade. Under the Bush Administration the USPTO held innovation hostage, prevented small businesses, start-ups and entrepreneurs from getting investor funding and that created a drag on the economy, prevented the creation of new jobs and then when widespread economic disaster hit the Patent Office was unable to play a part in recharging the US economy.
Ouch! But as an inventor and former Corporate Patent Strategist familiar with the pains and burdens of delay, I can’t bring myself to disagree! As I continue working with inventors, both within corporations and lone inventors or small teams in start-ups, I have seen a great deal of discouragement when people learn just how long it takes to obtain a patent, and just how difficult it has become. Bold, original, brilliant concepts that need intellectual property to better secure investment are held up and may die due to the ever growing backlog and increasing delays from the PTO.
If we want to conquer innovation fatigue in the United States, we need to give the U.S. Patent and Trademark Offices the resources it needs to provide rapid examination and swiftly reduce the disastrous backlog in cases.
Are we headed in the right direction now? No, I’m afraid not. When our book went to press early in 2009, I expressed relief that past Congressional siphoning of funds from the PTO had ended. Unfortunately, I spoke too soon. What is essentially a tax on innovation came back in the closing days of 2009, as we learn from the nation’s leading investigative reporter on patent topics, John Schmid of the Milwaukee Journal Sentinel. In his story from Dec. 29, 2009, “ Congress Deals Funding Blow to Patent Office: Budget Strips $100 Million Provision for Backlogged Agency,” he shares the disturbing news that Congress has again acted to take money away from this essential and underfunded office.
The $1.1 trillion spending bill that Congress passed this month bankrolls thousands of pet projects: the World Food Prize in Iowa, a farmers market in Kentucky, and a 12-mile bike path in Michigan, among many others.
And to pay for a fraction of its largesse, Congress added one late change to the budget: It slapped a restrictive spending ceiling on the U.S. Patent and Trademark Office, further cramping an agency that was already incapacitated by more than a decade of congressional raids on its fees.
A Journal Sentinel investigation published in August documented how congressional diversions of the agency’s income from 1992 through 2004 left the Patent Office incapable of keeping pace with the volume and complexity of the applications it receives. The backlog has grown to more than 1.2 million applications, which the agency has said could take at least six years to get under control – assuming it receives the funding to hire and train new examiners.
But a budgetary provision that could have allowed it to spend up to an additional $100 million during the current fiscal year was stripped on Dec. 9, the final day of budget negotiations.
“We are currently operating on a barebones budget that makes it very difficult to attack our application backlog,” said Sharon Barner, the agency’s deputy director.
The last-minute move further frustrated critics who say the Patent Office has become dysfunctional because of mismanagement and underfunding.
Washington’s policy-makers fail to recognize that innovation – which the Patent Office is designed to encourage and protect – has become the key driver of competitiveness and job creation, said Hank Nothhaft, chief executive of chipmaker Tessera Technologies in San Jose, Calif., and a prominent advocate to repair the years of damage at the Patent Office.
“Everyone in Washington is talking about job creation,” often to justify stimulus projects and automaker bailouts, Nothhaft said. “And then they turn around and take money from the agency that can create high-value jobs.”
Read the full story and let your Congressional representatives know how you feel. This tax on innovation is a terrible step in the wrong direction. We need to be adding fuel to this critical engine of economic growth, not siphoning it out of the gas tank.
To conquer innovation fatigue, a healthy and efficient patent system is needed.
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.
One of the nine major innovation fatigue factors that we address in our book is the problem of effective university-industry relationships. I’ve been on both sides and understand some of the frustrations and barriers to innovation success in these relationships. This was a topic I addressed in a couple recent presentations, one in Singapore at the kind invitation of leaders in A*STAR who had me speak during their Innovation and Enterprise Week in October. The other presentation was given at the AIChE (Amer. Inst. of Chemical Engineers) Annual Meeting in Nashville, Nov. 2009. A subset of the material is presented in a twenty-minute overview, “Conquering Innovation Fatigue in University-Industry Relationships,” using the Pixetell screen recording service. The short URL is http://tinyurl.com/jlpres2.
Inventors in universities sometimes face disappointment in seeing their work get into the marketplace or implemented by industrial partners. Several innovation fatigue factors, discussed in detail in Conquering Innovation Fatigue, need to be understood to realize success in working with corporations. Corporate personnel also need to understand the pressures and expectations of universities when it comes to successful open innovation. Sticking points such as IP rights can be handled fairly if you know what you’re doing and pick your partners carefully. UC Berkely, for example, is a great example of a university finding ways to be a great partner for successful collaboration with industry.
While our book, Conquering Innovation Fatigue, has a lot to say on innovation and managing innovation, we also have important sections on intellectual asset strategy. An entire chapter, for example, is dedicated to intellectual asset tools for dealing with disruptive innovation.
One of the key concepts we discuss is what we call “360 IA” (three-hundred and sixty degree intellectual assets). The 360 IA approach considers the full scope of intellectual asset tools for protecting your innovation. Patents are just a part of that, and even then, we challenge you to think beyond conventional process and product patents, also considering unconventional approaches that might fall within the realm of “business method patents.” Don’t overlook design patents, either. (See PatentlyO’s discussion of Google’s design patent for its homepage layout.) Make sure that your patents tell a story that lines up with your marketing story. Are the unique selling points of your concept also directly in the focus of your patent strategy? Moving beyond patents, there are creative things that can be done with other forms of intellectual assets such as trademarks. Creative trademark applicants have found protection not just for the appearance of the product per se, but for secondary aspects such as the characteristic water spout of Yamaha’s WaveRunner® personal water craft (U.S. Trademark 74321288).
Defensive publications are one of the most-effective and routinely neglected intellectual assets. I discuss them in the SharpIP.com post, “Are You Neglecting the Power of Defensive Publications?” If you are like most people and most corporations, the answer to that question is probably yes. Millions of dollars of headaches could frequently be avoided or greatly reduced by routinely publishing defensive disclosures aimed at creating prior art regarding minor improvements or seemingly obvious various to your patented technologies, thereby reducing the risk of others creating a picket fence around your own estate that limits your freedom. Potentially disruptive innovations or feared competitive acquisitions, mergers, or new product efforts can also have some of their sting removed through a creative defensive publication program. It’s not easy in typical corporate cultures, and specific actions must be taken to ensure that targeted disclosures are written by capable people and properly screened and tracked. The review phase is especially important, for once you pull the trigger and release the publication to the world, you can’t pull it back and change your mind, as you can with a patent during the months before it is published. My efforts to implement an aggressive defensive publication program at Kimberly-Clark Corporation were an important part of my work there, in spite of having had the title Corporate Patent Strategist. I actually spent a lot of my time working to advance publications and other non-patent forms of intellectual assets.
A 360 IA framework also demands attention to digital intellectual assets. This especially includes domain names, which many great companies tend to overlook, sometimes until it is too late. When you have some proposed names for a new product or service, go ahead and register the domain names ASAP, long before you settle on details and approach launch. They are cheap–unless you let someone else get them first. There are many free digital intellectual assets to consider as well, including YouTube channel names, Gmail accounts, Facebook names, Twitter accounts, Squidoo lenses, etc. Get these early. You don’t need to use them, but make sure you own them for your brands and emerging product concepts.
The great thing about the 360 IA approach is that it helps you proactively craft an intellectual asset estate with more purpose, more agility, and much lower cost than is possible by relying on patents alone. You can create an estate that enhances your marketing strategy. If you are looking to license or sell your technology and IA portfolio to someone else, you can greatly increase the value by presenting a holistic intellectual asset estate that considers many bases and is aligned with your marketing story. It really gives you a chance to shine and be more effective at lower cost.
Think beyond patents. Think 360 degree IA.
(Note:360 IA workshops and analysis are among the services Innovationedge offers.)