Friday, November 07, 2008

Invention and innovation are not the same thing

Part of the confusion in patent reform is caused by the failure of certain legal academics to treat "innovation" and "invention" as distinct concepts.

In December 2006, in an article titled ON PATENT QUALITY AND PATENT REFORM [88 JPTOS 1068 ], LBE noted

To intellectual property attorneys, the world of patents is about the disclosure of inventions. The patent system is designed to provide incentives to inventors to disclose publicly inventions which are useful, novel, and non-obvious, thereby enhancing the public storehouse of knowledge and hopefully accelerating the rate of improvements to our lives. The deal between the public and the inventor is the exchange of information in return for a right to exclude for a finite time.

Businessmen are more concerned with innovation than with invention. Peter F. Drucker noted: Its [innovation's] criterion is not science or technology, but a change in the economic or social environment, a change in the behavior of people as consumers or producers. Innovation creates new wealth or new potential for action rather than mere knowledge. [FN4] In the book "The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail," [FN5] Harvard professor Clayton M. Christensen does not once use the word patent. "Technology" as defined by Christensen means the processes by which an organization transforms labor, capital, materials, and information into products and services of greater value. Innovation is a change in technology.

In various earlier talks, LBE had included references to Edward B. Roberts, for the proposition

Innovation = Invention + Exploitation

On 1 January 2007, Edward B. Roberts re-emphasized his distinction between invention and innovation.

Among other things, Roberts noted:

There are, however, significant differences between "idea-havers" [inventors] and "idea-exploiters" [innovators]--those who come up with ideas and those who do something with the ideas they have generated (10,11). This holds true whether the ideas are born in universities, government labs or in industry. The generally low rate of energetic pursuit of newly created RD&E ideas mandates the requirement for the second key role in technical innovation-seeking activities, that of the entrepreneur or product champion. Entrepreneurs advocate and push for change and innovation; they take ideas, whether their own or others', and attempt to get them supported and adopted.

In terms of basic definitions, Roberts noted:

The invention process covers all efforts aimed at creating new ideas and getting them to work. The exploitation process includes all stages of commercial development, application and transfer, including the focusing of ideas or inventions toward specific objectives, evaluating those objectives, downstream transfer of research and/or development results, and the eventual broad-based utilization, dissemination and diffusion of the technology-based outcomes.

In passing, one notes that the position of Roberts is distinct from that of Drucker. Roberts states:

Most challenging to those of us committed to the development and use of new science and technology is Drucker's assertion that "contrary to almost universal belief, new knowledge--and especially new scientific knowledge--is not the most reliable or most predictable source of successful innovations." As with most Drucker "truths," this one is intuitively attractive, as well as unverified in any systematic manner. Whether or not new science is a critical "source" of successful innovations no doubt depends on how you define both "science" as well as "source." But there is no doubt that advances in science and technology are instrumental to the development and implementation of almost all successful product and process innovations. It is the rare case that a success stems from merely a repacking of previously existing science and technology.

Roberts distinction in turn depends on what one means by "repacking." Combination claims in patents, as discussed in KSR v. Teleflex, frequently arise from a uniting of elements ALL of which individually were in the prior art. Whether these combinations rise to patentable significance was a topic of discussion in the KSR case, and in subsequent legal writing.


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