‘Different Sectoral Contexts’ approach is vital for IAM

… noted Jeremy in the last post to IP Finance. SMEs in the automotive sector may be interested in a recently completed study which maps the IP business models behind ten cases of US patent, trade secret and trade mark litigation brought by the most prolific US patent applicants in the field of braking technology. The study’s author runs the Engineering Intellectual Property Research Unit at Cranfield University’s School of Engineering.

The study shows that the predominant IP monetisation mechanism in the field of braking is that of “monopoly provision”, i.e. using IP to exclude competing suppliers. There is only one instance of a patent licensing relationship, that being with a company already related to the patentee, suggesting that SME developers of braking technology may struggle to license into prolific US patent applicant companies.

As regards the IP mix that such SME developers might employ, the study confirms that trade secret protection is not used above raw material / component-level manufacture. It also illustrates the risk of third party patent infringement associated with trade secret protection.

The greatest threat of infringement litigation appears to come from competitors at a similar level on the value chain, the study also showing that neither the small size of an SME nor the large size of a company’s patent portfolio can guarantee immunity from suit.

Intellectual assets and innovation: a sector-by-sector study on SMEs

The IP Finance weblog is grateful to Chris Torrero for drawing its attention to a recent study, Intellectual Assets and Innovation: the SME Dimension, which has been published by OECD Publishing in its OECD Studies on SMEs and Entrepreneurship series.

"Intellectual Property Rights can be instrumental for SMEs to protect and build on their innovations; position themselves competitively vis-à-vis larger enterprises in global markets; gain access to revenues; signal current and prospective value to investors, competitors and partners; access knowledge markets and networks; open up new commercial pathways; or segment existing markets ['can be' -- but the same rights 'can be' a means by which SMEs bankrupt themselves though over-expenditure in acquiring them and over-extending themselves when seeking to enforce them. That's why it's a shame that ...] ....  while there is increasing recognition of their significance, as well as the need for appropriate intellectual asset management for SMEs across OECD countries, there are few regulatory frameworks or specific instruments directed to SMEs. This is in part due the pace of technological innovation, which often exceeds the time it takes for policy makers to create appropriate responses to the changing landscape of intellectual property. 

This study explores the relations between SME intellectual asset management, innovation and competitiveness in different national and sectoral contexts [the 'different sectoral contexts' approach is vital, since IPRs behave so differently in their respective contexts and we have suffered too long from 'one size fits all' prescriptive analyses of the IP needs of SMEs]. It provides insights on the ability of SMEs to access and utilise the protection systems available to them and identifies key challenges for SMEs in appropriating full value from IPRs. It also investigates effectiveness of regulatory frameworks and policy measures to support SME access to IPRs, identifying best practices and proposing policy recommendations".

The study is available in print and pdf formats. Full details are available from the OECD's bookshop website here.

The New York Times and Diminishing Derivative Works

Most of the readers of this blog are surely familiar with the struggle, some say existential, of print newspapers to find a viable business model in today's increasingly online world. The issue, as framed, is simple: having given away substantial content for free online access without a revenue stream parallel to the want-ads cum advertisments of print newspapers, can such newspapers now find a long-term model based on charging for online contents? This, while at the same time the newspapers continue to try to salvage something from its print product.

Against this print v online morality play, a little-mentioned event occurred late last week that highlights another aspect of the search for commercially viable platforms to deliver copyright content. The event in question was the announcement by the New York Times that it is discontinuing its broadcast of podcasts. First a confession: I am podcast freak. For over two hours each day, starting with my one-hour constitutional in the morning and extending to the 45-minute bus commmute to and from work, I combine either walking or bus travel with listening to a series of informative podcasts by the newspaper on business, politics, science and music.

Without a doubt the New York Times is well ahead of the class in the contents of the podcasts in these (and probably in all areas subject to a podcast broadcast by the company). It is not an exageration to say that these podcasts have helped frame the terms of my thinking in recent years. In effect, these New York Times podcasts are a unique form of derivative work, whereby journalists are called upon to adapt their print contents to the quite different medium of the spoken world. Unlike the mere reproduction of audio content broadcast on radio and then reworked for further podcast broadcast in MP3 format (such as Bloomberg, the BBC or National Public Radio), the New York Times had succceeded in creating a distinct content form elegantly adapted for an aural, non-visual platform. And yet this same newspaper, owner of one of the most august names in the journalistic world, has decided to shut down one (albeit small) aspect of its journalistic excellence.

While no specific reason was given in the announcement of the discontinuance of the podcasts, a strong hint was found near the end. There, the presenter urged listeners to either take up an offer to subscribe to the online version at an introductory low price or continue with the print edition. This suggests that either the podcasts were an expense that the newspaper was no longer interested in bearing, and/or that the podcasts had not succeeded in driving listeners to subscribe to either the online or print edition, and/or the podcast broadcasts were merely cannabilizing potential revenue-generating customers. In shutting down its podcast service, the newspaper is apparently prepared to risk the loss of the goodwill accruing to its name by virtue of the podcasts or, even more, engendering a certain feeling of betrayal -- contents available via the iPod over a number of years have been suddenly yanked from the listening public.

Whatever the reason, the result of the decision is to impoverish the content available for a medium (MP3 iPod players) that is uniquely placed to facilitate the optimalization of the multi-tasking experience, something neither the online or print experience can offer. After all, one can equally engage in various forms of physical activity while also listening to his favourite podcast content. Nothing of the like can be achieved by online or print content, which demands the complete attention of the reader.

It has been noted more than once that the burgeoning of derivative works and the success of their commercial exploitation has been one of the main drivers in the expansion of copyright over the last several decades. Both commercially and artistically, therefore, the creation and exploitation of derivative works is one of the success stories of modern copyright. When it comes to MP3 content, however, that is no longer the case, at least for the New York Times. In so doing, at least one najor copyright owner has apparently decided to cut back on the production of quality derivative works. That is a result that should be lamented.

Economics and IP: the Katonomics posts

After posting this item on the IPKat weblog, it occurred to me that there are probably a good many readers of the IP Finance weblog who are interested in the point at which economics intersects with IP but who do not read the IPKat. Accordingly I've listed the titles of a series of six posts on economics and IP, written by economist Dr Nicola Searle and published together under the term "Katonomics". A further series by the same author will follow in the New Year.

• No.1: The social contract theory of IP
• No.2: The economics of trade marks
• No.3: Evidence-based policy: the challenge of data
• No.4: Where to look for an IP-oriented economist
• No.5: The paradox of fashion
• No.6: The economics of IP in pharmaceuticals.

Can Policy Right the Science Ship? The Case of Argentina

With another Nobel Prize season behind us after the winners picked up their prizes last weekend, it is worthwhile to consider the state of research and development in developing countries (or the "low end" of developed countries). Once again, and for the fourth time in less than a decade, an Israeli was awarded the Nobel prize for Chemistry, this time Professor Dan Schechtman of the Technion--Israel Institute of Technology, here. However, except for the oversized success of Israelis, especially in Chemistry, the track record of similarly placed countries regarding Nobel Prize awards has become more and more sparse out the years.

Against that backdrop, The Economist published an interesting article in its November 5th issue. Entitled "Cristina the Alchemist: Science in Argentina", the article discusses the multi-faceted attempts of the Argentine government under successive presidents, first the late Nestor Krichner and more recently his widow, Cristina Fernandez, to upgrade the state of science and technological research in the country.

Argentina is hardly without a respectable past in this regard. Using Nobel Prize awards as a rough proxy, the country has seen three winners in science. However, the last of these winners received the award in 1984 and the country has been witness to a precipitous decline since then. In response, the government has adopted a series of measures designed to right the sinking ship of Argentine science. Based on the article, the leading aspects of this push can be summarized as follows:

1. R&D expenditures has risen from 0.41% to 0.64% of GDP (although this is still far less than that expended for R&D in Brazil in 2009--1.18% of GDP).

2. Under President Kirchner, researchers' salaries were increased, an organized scheme has been put into place to repatriate Argentine scientists abroad, and tax breaks were given for the software industry. Under President Fernandez, a new science ministry was created and grants of money for new product development has been increased.

3. The state is financially supporting the cost of registering patents in jurisdictions outside of Argentina and lawyers' fees in connection with defending these patents. It is also supporting the placement of PhDs with employers in the IT area, including partial support of their salaries in this area.

4. Perhaps the most interesting result of the foregoing is that 854 scientists have returned to Argentina, lured by new labs and increased compensation. In turn, researchers have increased their presence in the leading scientific journals to 179 published articles during the past decade, compared to only 30 articles published in the 1990s. As well, there seem to be particularly noteworthy developments in agriculture and horticulture.

5. That said, reservations have been raised about the extent to which these scientists are engaged in industry-oriented enterprises. Moreover, the article is stone-silent on the extent of patent activity as a result of these efforts. At the macro level, it remains to be seen whether the Argentine government will stay the political course and maintain these policies over an extended period of time, much less whether these efforts will bear fruit at the level of Nobel prizes and similar achievements 15-30 years down the line.

The example of Israel should provide Argentina with an example of how a mix of public and private activities can enable a marginally developed country to reach world-class accomplishments in science. The Israeli situation should also serve as a caution that continued vigilance is essential. While the country basked last week in the Nobel Prize granted to Professor Schechtman, the professor himself sent a pointed and clear message to the country's leaders: Unless you adopt a wide-reaching set of changes in the approach and support of science, starting from primary education, there will not be another generation of Nobel prize recipients. The implications for Argentina are clear.

Patents and standards again: a valuable study

This weblog has focused a good deal in recent weeks on standards and patents. In this context, the Study on the Interplay between Standards and Intellectual Property Rights (IPRs), April 2011, is highly relevant. Commissioned and financed by the Directorate General for Enterprise and Industry of the European Commission, this study was produced by the Fraunhofer Institute for Communication System and Dialogic in collaboration with the School of Innovation Sciences at Eindhoven University of Technology, and enjoyed the support of two legal consultants.

Ruben Schellingerhout, who kindly drew the attention of the IP Finance weblog to this study, explains a bit about it:

"The study shows that distribution of patents in standards is very skewed, both in terms of standards and in terms of owners. A few standards cover a large number of patents while most standards include only a few patents, or no patents at all [I had no idea that this was the case]. And a relatively small group of companies own a large number of essential patents in standards, while most companies own only a few or none of these patents. 

In the telecommunications and the consumer electronics market, implementers ensure access to essential IPRs most often via cross-licensing and - to a lesser extent - via general licensing-in and patent pools.

Legal uncertainty can still arise on the obligation to disclose, the irrevocability and the geographic scope of the licensing commitment and in cases of transfer of IPRs if they are still subject to a FRAND licensing commitment. Companies expect standard setting organisations to improve transparency on essential IPRs".

Thanks, Ruben, for your kind assistance.  Readers can access the report in full here.

Consumable IP

Some OEMs derive a significant proportion of their profits from the sale of consumables (a recent article in The Times recalled the 2002 assertion by the Consumers Association that the ink in Hewlett-Packard’s printers “was more expensive, per millilitre, than Dom Perignon champagne”). Others make no attempt to prevent aftermarket suppliers, instead making their profit on the sale of original equipment.

Now there would appear to be a third way: in the field of aircraft brakes, Nasco has announced an “innovative alternative” approach to providing [corporate] customers with new brake designs involving a fixed-price design, development and production contract that includes re-procurement data rights. Such data are believed to include manufacturing drawings and material specifications.

According to Nasco’s website, “customers pay the development costs up front but reap the long-term benefits of lower cost spare parts through competitive sourcing.” Contrast this with the use of trade secrets in manufacturing drawings and material specifications to exclude competitors as previously reported here.

The Missing IP Narrative

It remains my most vexing professional challenge. The "it" is how to integrate IP/IC into management education. The vexation comes from the seeming paradox tha, while intellectual property and intellectual capital are routinely described as cornerstones of innovation, if not modern business itself, their systematic presence in MBA curricula remains sporadic at best. I was reminded of this in connection with two quite different experiences that I had during the week.

In the first, I had occasion to spend some time with the dean of a local business school. Recently appointed, he was taking bold action to modify the schools's MBA program to make it more appropriate for today's student body. In that connection, he wanted to hear more about my class on IP and Management that I teach elsewhere. His question, half  "devil's advocate", half an expression of curricular skepticism, was simply this: "I have space for 20 or so courses in the program. Why should a course such as yours be part of the curriculum?"

The case in favour of inclusion is not simple. In the face of multiple courses in strategy, finance, marketing, and operations, the role of a course focusing on IP is dfficult to explain. The uneven diffusion of IP subject matter throughout an organization, the origin of IP as a branch of legal practice and its intangible character all give IP a bit of orphan status within the school's curriculum.

The Dean pushed me for examples of how the course works in practice. A pregnant pause ensued, finally punctuated by several examples of IP and management that seemed to pique his interest. All the while I stressed that one can look at MBA education as a platform for imparting relevant narratives to the students. Taken from this perspective, the ultimate justification for the course is that it highlights the IP narrative in a manner that is front and centre: "Can you imagine a manager who does not have the ability to apply the IP narrative to his daily businsess?", I asked. I am not sure that I convinced him that the answer is "yes". If I failed, cohort after cohort of young managers will be trained at his school without receiving any systematic tranining in this field. The managerial narrative for these students will simply lack a meaningful consideration of IP.

This absence of a narrative for IP was reinforced in listening to a podcast that featured a well-known venture capitalist describing the foundations of the VC world. The speaker did not disappoint. He described the flow of foundation money from university and similar endowments as the turning point for VCs to attract substantial investment capital. He emphasized the importance of the human dimension in any investment, and observed that any prospective company that puts special emphasis on an exit strategy for the company lacks the necessary patience. He distinguished between great innovative ideas and market potential. There are a lot more of the former than the latter.

These multiple narratives about the VC enterprise were interesting and instructive. Except for one thing: the speaker mentioned IP only in passing. Based on his words, IP was not a central part of the VC narrative. In follow-up correspondence with the speaker, he replied briefly that the company "of course" takes an interest in the company's IP, ie., "FTO and patentability." In his view, IP is largely limited to patents, and the work required is the purview of patent technocrats, far removed from most of the company's managers.


This podcast and email correspondence reinforced the sense of frustation that I had felt in my meeting with the dean, namely that IP is not part of the mainstream MBA narrative for most students. The upshot is that most MBA students will continue to go through their programs with scant or simply no attention being paid to IP. Is there a price to be paid for this? Perhaps. It is frequently observed that innovation has materially declined over the last few years. There are no doubt a number of reasons for this troubling state of affairs. Against that backdrop, one wonders whether the absence of a meaningful narrative regarding IP within the context of most MBA programs is another source of the innovative malaise. This is at least narrative food for thought.