Innovation: is it the dirty little secret of IP?

One thing that the IP community does not do particularly well is to deal with dirty little

secrets. No, I don’t mean the song by the same name, but rather the notion that there are skeletons in the IP closet that we would prefer not to address. This Kat thought about dirty little IP secrets this week in the context of a conference — “The Many Faces of Innovation” -- that took place in Israel. What stands out from the conference, more than any single paper (some of which were quite good), was the sense that not only was there no consensus about what we mean by “innovation”, but that this lack of consensus was not viewed as a problem. With one or two exceptions, none of the presentations sought to offer a definition, nor did any of the Q&A make mention of this.

As a profession, we seem quite comfortable with the state of affairs whereby we speak about innovation, even if there is no attempt to define it. Indeed, some would say that this is the point. As captured by the name of the conference (“The Many Faces of Innovation”), the most that we can do is describe what we think the notion entails. This diversity of meaning is part and parcel of the discourse about innovation. This may be all right if the notion of innovation was left to academic and journalistic discourse. But that is not the case. Innovation is not merely a frame of reference for discourse, and while it is not a legal term, it has become a public policy construct that seeks to affect both public and private conduct. As such, the lack of some common understanding of what is meant can deleteriously impact on both our private and public treatment of the subject. Intuitively, it seems if that you and I do not have the same understanding of what we are in fact talking about regarding innovation, our ability to reach meaningful decisions is limited, even severely so.

This Kat points to two notable examples. First, there is the discussion over the claim that we are now in a period of diminished innovative activity. The fear is raised that, for the first time in modern history, we cannot rely on continued innovation to substantially better our lives in the future. Much of the interest in elevating innovation to a public policy issue derives from this concern. Nanotechnology, biotechnology and 3D printing are promising, but would seem to pale in the face of the development of electricity and the internet. At the root of the uncertainty is whether innovation takes place within a range or we have gone beyond that range and we are now in uncharted innovation waters that bode ill for the future. In addition to the obvious point that we will know about the next big innovation only after the fact, the discussion itself turns on what it is that we mean when talk about innovation. To the extent that the current discussion has here and now policy consequences, the lack of a common font of meaning is not helpful.

Second is the recurring assertion that the patent system is intended to encourage innovation. There are various implications that flow from this, most notably that any patent that does not further the innovation interest is at odds with the patent system. Weak patents, patent trolls, patent thickets, patent hold-up and other patent undesirables all derive from the underlying assumption that patents are the hand-maiden of innovation. As such, at least in the US, a material driver of proposed patent legislation is to better align the patent system with the needs of innovation. The only problem with this view is that it is not correct. Patents are about encouraging invention and not impeding competition in a manner consistent with the patent grant, where the legal system has developed tools to define invention. Some forms of innovation (however defined) can be expected to flow from improving the manner by which we encourage and protect invention, but innovation is not a surrogate for invention. Introducing innovation as a construct within the patent system, parallel to invention, novelty and inventive step, is simply inappropriate.

All of this points to a single conclusion—IP practice needs to be extremely careful about how it embraces innovation. It does not mean that there is no place for discussing innovation within the larger ecosystem in which IP rights are created and protected, but it does suggest that innovation per se is not synonymous with IP rights.