Saturday, January 09, 2016

Comments on IPKat on invention and innovation

The IPKat blog has an interesting post Innovation: is it the dirty little secret of IP? including text:

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.
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.

**Apart from the fact that innovation and invention are different, the Kat's first point evokes the quote attributed to Duell:

«Everything that can be invented has been invented.»
Charles H. Duell, an official at the US patent office, 1899.


The concept expressed in the (alleged) quote is no more true now than it was in 1899. As one example of interest to IPBiz, the development of drugs to modify multiple sclerosis has undergone a significant change over the last twenty years and promises to change things even more in coming years. This development has changed the way people live and is an innovation.

**As to the second point [Patents are about encouraging invention ], the MAIN benefit to the public of the patent system is the PUBLIC disclosure of information, so that everyone can benefit from the knowledge. In this view, patents are about encouraging public disclosure. The information is available, so anyone can use the information (although no one is free to practice the claims without seeking a license).

See also IPBiz posts:

**As a footnote, in the blawgsearch metric of measuring blog value, IPKat is the most cited IP blawg of all time (with IPBiz second):

As to today (9 Jan 2016) and this week, note


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