The following article is the second of a three-part series. An abbreviated version of this article originally appeared in the Sept./Oct. 2012 issue of IAM Magazine.
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One of the more indelible images of the civil rights movement are those from the Spring of 1968 as Black sanitation workers went on strike in Memphis, Tennessee holding signs that read “I am a Man,” in their fight for economic equality. (This is the reason that civil rights leader Martin Luther King, Jr. was visiting Memphis when he was assassinated on April 4, 1968.) Now those signs should not only read “I am a Man Who Thinks,” but “I am a Man Who Thinks and My Thoughts are Valuable.”
In part one of this series, I pointed out the “gaps” or “divides” in our lexicon that measure the opportunity (or lack thereof) that certain populations have for economic success. These disparities include the “digital divide,” “education gap” and “wealth gap” that exist between the Black and White populations in the U.S. I also gave some historical perspective on the negative views of Black intellectual capacity against which we can look to the convergence of intellectual property (IP) with identity politics in assessing the current state of affairs.
Now, in my quest to determine if IP rights should be the new civil rights in America, I define a new gap that focuses on the currency of our 21st century economy. It is my position that a skillful IP attorney can be a modern day civil rights attorney by aiding Blacks to create IP rights in order to preserve their exclusive right to economically exploit the fruits of their creativity.
Before moving further, let’s consider futurist Alvin Toffler’s theory of human history set forth in his seminal book, The Third Wave. Toffler argues that human history, while often complex and contradictory, can be divided into three ages or “waves”:
During each of Toffler’s waves, not only have cultures and marketplaces transformed, but basic economic fundamentals have also changed. In the first wave, land was the measure of wealth. In the second wave, wealth diversified into the three components of industrial production: land, labor and capital. (Somewhat ironically, in 1860, two-thirds of a slave owners wealth was derived from the value of slaves.) In the third and current wave – the information age – IP rights (IPR) became part of the new measure of wealth. Not surprisingly for those of us in the IP field, Toffler’s 1980 theory has held and will continue to hold true. In fact, an editorial appearing in The Economist earlier this year discussing the “next industrial revolution,” predicted:
Like all revolutions, this one will be disruptive. Digital technology has already rocked the media and retailing industries, just as cotton mills crushed hand looms and the Model T put farriers out of work. Many people will look at the factories of the future and shudder. They will not be full of grimy machines manned by men in oily overalls. Many will be squeaky clean—and almost deserted. … Most jobs will not be on the factory floor but in the offices nearby, which will be full of designers, engineers, IT specialists, logistics experts, marketing staff and other professionals. The manufacturing jobs of the future will require more skills. Many dull, repetitive tasks will become obsolete: you no longer need riveters when a product has no rivets.
Given the current state of economic affairs, the coming industrial revolution and an information age where IP is the principal measure of wealth, it is time we “mind the innovation gap.” What is this “innovation gap”? Dr. Mary Lowe Good, former U.S. Undersecretary of Commerce for Technology, is credited by some as coining the term to mean the inability to take a promising product or service idea to actual commercial deployment. Now, I redefine the term:
Innovation Gap: Disparities between classes of people, caused by societal hindrances, which prevent them from securing the IP rights necessary to economically exploit the fruits of their creativity.
The “innovation gap” I define – to be clear – is not a “creativity gap,” nor an “invention gap.” Why? “Invention” can be said to refer to the creation of ideas – something which Blacks (or any population for that matter) have no shortage. Black composers and performers have created virtually every original American musical genre, and Black inventors are credited with countless major inventions in almost every technological field from the gas mask, pacemaker, microphone, light bulb filament, train-to-station communication system, shoemaking machine and traffic signal to the Supersoaker™ water gun – just to name a very few!
In contrast, “innovation” can be said to refer to the process of first protecting the idea (via IPR) and then monetizing that idea through its introduction into the marketplace. Yet, innovation requires capital, and attracting capital most often requires demonstrating previous operational/managerial experience. Therein lies the basis of the innovation gap. That is, innovation is essentially a series of (private) commercial transactions. The civil rights movement, however, has resulted in:
“[F]ederal, state, and local governments enact[ing] an array of laws designed to address racial inequalities in education, housing, and employment. Yet the racial landscape has changed little in half a century. … Despite a legal revolution in civil rights, income inequalities have persisted within the same narrow range for many decades.”
The very series of private, commercial transactions required for Black innovation remains an area where there exists no legislation to prohibit racial discrimination or address racial inequality, nor will there be. So what then? Well, any solution must rest, at least in part, on creating a power base generated by the control and ownership of business assets (e.g., IPR). This is because scholars have recently recognized that:
If [Black] communities had a thriving private sector and business class, their wealth would ameliorate many of the persistent economic racial disparities in employment, income, [health] and wealth. … Increased [Black] business ownership would increase social cohesion and strengthen other intangible factors that help political communities thrive. It would enable all groups to experience each other in new roles. When [Black] entrepreneurs interact with other business owners as valued customers, suppliers, or sources of financing, old stereotypes are challenged and new images are created. Business networks are also social networks.
If we accept the above as true, then it follows that creation of a Black private sector is necessarily going to be through small- and medium-sized enterprises (SMEs). We also know that in an information age, IPR resulting from innovation accounts for the vast majority of an SMEs’ value (i.e., it is the key to their exit strategy – be it an IPO or sale). Thus, if creating thriving Black businesses is the key to economic equality – the aim of the original civil rights movement – and innovation is the key to successful SMEs, minding the innovation gap should be the focus of a renewed civil rights movement.
Is there any further anecdotal evidence as to why civil rights should now focus on innovation and the innovation gap? Well, “[a] nation’s ability to convert knowledge to worth and social good through the innovation process determines its future.” This is why U.S. President Obama, needing to right the American economy when he took office, turned to the issue of innovation early during his administration:
Now, history should be our guide. The United States led the world’s economies in the 20th century because we led the world in innovation. Today, the competition is keener, the challenge is tougher, and that’s why innovation is more important than ever. That’s the key to good, new jobs in the 21st century. That’s how we will ensure a high quality of life for this generation and future generations. With these investments, we’re planting the seeds of progress for our country and good-paying, private sector jobs for the American people.
President Obama’s focus on innovation is not surprising given that empirical evidence has shown that it drives economic growth among the world’s national economies. If a significant percentage of a nation’s population is not able to successfully innovate, as is the case with the U.S. and its innovation gap, then would not the nation as a whole suffer?
Given the link between IPR and identity politics, the historical perspective and experience of Blacks in the U.S., the existence of an innovation gap, and the fact that we are in an information age (i.e., Toffler’s “third wave”) with another industrial revolution on the way, we can see that IPR should be the focus of a renewed civil rights movement. The world’s natural resources may be shrinking, but the opportunities for there to be new candidates for IPR ownership are ever expanding.
In today’s economic climate of global recession, Blacks seek, among other things, financial stability and equality. This is not all too different from the justices being sought during the civil rights movement of the 1960’s. That movement’s themes included protest for equal pay for equal work. It also included lunch counter “sit-ins” demanding that Blacks be able to spend their money in the same places as other citizens. Thus, in large part, the civil rights movement was about economic rights. Today, the movement continues with such “traditional” protest as Blacks demanding equal access to bank loans to start their own businesses and equal access to mortgage loans to be able to participate in the “American dream” of home ownership. Yet, in the information age, it would seem that an awareness of IPR within the Black community is needed so that Black entrepreneurs, artists, writers and inventors may fully economically leverage their intellectual creations.
Given the historical backdrop and current state of affairs described above, the question becomes: Are there (economic and other) approaches that will assure that Blacks will not continue to be economic victims as new technologies continue to bring prosperity to other segments of America’s population? That is, now in the new millennium, how can Blacks exploit their intellectual creations for their own economic gain and the creation of wealth within their own communities (i.e., how can the innovation gap be bridged)?
TO BE CONTINUED…
In the next and final installment of this three-part series, I will offer suggestions on how to bridge America’s innovation gap. Please stay tuned!
 New York: Morrow, 1980 (ISBN-10 0688035973).
 Alfreda Robinson, Corporate Social Responsibility and African-American Reparations, 55 Rutgers L. Rev. 309, 342 (2003).
 The Third Industrial Revolution, The Economist (Apr. 21, 2012) at p.15 (emphasis added).
 See Ogan Gurel, Who is Minding the Innovation Gap?, WTN News (May 30, 2007) (available at http://wtnnews.com/articles/3954/).
 See Kevin J. Greene, Stealing the Blues: Does Intellectual Property Appropriation Belong in the Debate Over African-American Reparations?, Thomas Jefferson School of Law Public Law Research Paper No. 05-03 (2005).
 Robert E. Suggs, Poisoning the Well: Law & Economics and Racial Inequality, 57 Hastings L.J. 255, 257 (2005).
 Id. at 283-84.
 Subash K. Bijlani, The Innovation Potential of an SME and the Value of the Intellectual Property Right, WIPO Asian Regional Workshop on the Strategy for the Management of Industrial Property Rights by Small and Medium-Sized Enterprises (SMEs) (Oct. 23, 2000) (available at http://www.wipo.int/edocs/mdocs/sme/en/wipo_ip_mnl_00/wipo_ip_mnl_00_7_b.pdf).
 Remarks on the National Economy in Wakarusa, Indiana (Aug. 5, 2009) (available at http://www.gpo.gov/fdsys/pkg/DCPD-200900623/pdf/DCPD-200900623.pdf).
 RAND Corp., Intellectual Property and Developing Countries (2010) (available from http://www.rand.org/pubs/technical_reports/2010/RAND_TR804.pdf).
 See Marilyn Strathern, Property, Substance, and Effect: Anthropological Essays on Persons and Things 23-24 (1999).