In Joe Allen’s recent column Does Innovation Lead to Prosperity for All? he ended with a quote by Alexander Fraser Tyler from The Decline and Fall of the Athenian Republic, which suggested that a democracy cannot continue to exist once the majority realizes they can vote for candidates that promise a never ending stream of benefits. Eventually, the result of politicians handing out money and benefits for votes leads to a collapse as the result of unsustainable fiscal policy. Allen quizzically ends by stating that this couldn’t ever happen in the United States, could it? Sadly, we know it is happening in America.
Saying the United States has a spending problem is an extraordinary understatement, but spending continues. The public demands spending and so many people now erroneously believe that the way to improve the economy is for the government to spend ever more sums while at the same time regulating business like never before. Taking the foot off the throat of the private sector and reducing government spending has been an time tested and effective way to stimulate activity, create jobs and improve the overall economic condition of the U.S. economy. So there is an extreme disconnect between historical reality, what the people want and the policies America is pursuing.
The IP Law Summit will be held from September 14, 2014, through September 16, 2014, at the Eau Palm Beach Resort & Spa, Palm Beach, Florida. The event will bring together senior IP Counsel from large corporations and mid-market organizations with service providers. The Summit is an invitation-only event that will take place behind closed doors.
Generally speaking, “intellectual property” is probably best thought of (at least form a conceptual standpoint) as creations of the mind that are given the legal rights often associated with real or personal property. The rights that are obtained by the creator are a function of statutory law (i.e., law created by the legislature). These statutes may be federal or state laws, or in some instance both federal and state law govern various aspect of a single type of intellectual property.
The term intellectual property itself is now commonly used to refer to the bundle of rights conferred by each of the following fields of law: (1) patent law; (2) copyright law; (3) trade secret law; (4) the right of publicity; and (5) trademark and unfair competition law. Some people confuse these areas of intellectual property law, and although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.
* Job Title / Position: Patent Prosecution Associate * Job Location: San Francisco
The San Francisco office of Morgan Lewis & Bockius, LLP an international law firm with some 1,400 attorneys, seeks a highly motivated, junior to mid-level associate for our Intellectual Property Practice.
The ideal candidates must have patent prosecution experience in the fields of life sciences, preferably with an advanced degree in biochemistry, biomedical engineering, molecular biology, immunology, and/or biology. Candidates must possess excellent academic credentials and strong research, writing, communication, interpersonal, and organizational skills. Candidates must be registered with the U.S. Patent and Trademark Office and a member of the California bar.
By and large we are exporting our intellectual property so foreign companies and subsidiaries around the world can engage in manufacturing. Unfortunately, when manufacturing exits a country R&D funding dwindles in direct response, thereby creating an enormous problem. This has been and will continue to be an acute problem for the United States moving forward. With countless manufacturing jobs already gone what the American economy thrives on is intellectual property, particularly in the form of innovation.
This is an issue that has come to mind are the result of a recent article in POLITICO titled As factories die, income gap grows. This article starts by telling the tale of a married couple from Reading, Pennsylvannia, Dave and Barbara, who back in 2008 were making $22 and $19 an hour respectively working for Baldwin Hardware, a unit of Stanley Black & Decker Corp. Layoffs came, long term unemployment followed, and now the couple are among the tens of millions of Americans who are under employed. They had to run through all their retirement savings to stay afloat, and now they each make $10 an hour; Dave as a janitor and Barbara cleaning houses while she looks for something permanent.
The American story of lost manufacturing jobs dates back for decades. Bruce Springsteen’s song My Hometown, which is actually about my hometown of Freehold, New Jersey, immortalized the tale of a textile mill closing down, jobs leaving and never coming back, which leads to vacant stores throughout the town. The line ? Foreman says these jobs are going boys and they ain’t coming back” ?has proved to be eerily prophetic, repeated in once thriving manufacturing and industrial communities all across America.
While there is strong evidence that robust intellectual property rights protection fosters economic growth and development, suspicion of stronger intellectual property rights remains front-and-center in the public debate. This is particularly true in the context of developing countries where some claim that strong IP rights are an obstacle to economic development. Notably, Brazil and Argentina have led a group of developing countries to propose that “ there should be a presumption against increased international protection of IP rights, allowing ‘higher standards of protection . . . only when it is clearly necessary . . . and where the benefits outweigh the costs of protection.’”
Despite these claims, study after study confirms that strong intellectual property rights are beneficial. In an UNIDO (United Nations Industrial Development Organization) review of close to 200 studies on intellectual property rights and economic growth, Falvey, Foster and Memedovic (2006) find overwhelming evidence that strong intellectual property rights protection generates economic growth. Moreover, while the impact depends on the country’s level of development, this powerful result holds true for industrialized and developing nations. For high-income countries, their analysis concludes that strengthening intellectual property rights leads to growth through increased innovation and technological diffusion. For middle-income countries, they establish that a more robust IPR environment boosts domestic innovation. Although stronger IPR protection will preclude imitation, domestic firms benefit from technology diffusion through foreign patenting and international trade, all of which can lead to economic growth. Finally, for low-income countries, the authors conclude that increased IPR protection encourages growth, but the manner in which this is manifest is not yet known.
The bottom line is that decades of study and scores of researchers demonstrate that a robust intellectual property rights regime is beneficial to economic development. Fundamentally, strong IPRs are an essential foundation for long-term growth. Moreover, this happens through a variety of welfare-enhancing channels, including technology transfer, tacit skill acquisition, education, job creation, wage growth, and foreign direct investment.
“Without a strong healthy business nothing else really matters–not even IP. A successful IP [plan] is one that follows the business and strategizes to meet its goals,” says Cynthia Raposo, Senior Vice President of Underarmour. The questions that need to be answered that go into formulating an intellectual property strategy–like when the company wants a profit, whether it is interested in attracting investors or academic collaborations or buyers, whether it will become a public or global company, what its niche in the market is, how fast developments in the field are– can’t be fully answered without not only consulting the business people, but being on the exact same page as them.
Instead of trying to warp business around IP or thinking about why and when IP might make incentives for business, as has been the case in the scholarly literature, we should start shifting the focus and instead discuss IP strategy in the context of business growth and development. This year at the AIPLA Mid-Winter Institute, the panels allowed us to take a detailed look at seven companies (Underarmour, RedHat, GlobeImmune, Cubist Pharmaceuticals, Harley Davidson, Ventana Medical Systems, and Global Partner Holdings) who have done just that and have progressed from small start-ups to well-known, profitable companies. Their successes emphasize why and how IP strategy should change as the business changes.
For the past 15 years I have been writing articles and commentaries in the hope of educating those new to the intellectual property world about the counter-intuitive characteristics that comprise the U.S. patent system. Intellectual property generally, and patents specifically, are among the most important assets most companies own. Yet the public knows little about the importance of employing an exclusive rights system for innovation, and most senior business executives and seasoned investors are befuddled by it. Their choices can cause those with more intimate IP knowledge to scratch their head in disbelief.
It will not come as a shock to observers of the U.S. businesses that manufacturing is no longer the focal point of the economy. Indeed, the continuous trend is toward an innovation and technology-based economy where intellectual property rights, particularly patents, rule the day. To paraphrase Bruce Springsteen — the manufacturing jobs are gone and they ain’t coming back.
Prosperity in the United States is now almost completely tied to innovation, and a prerequisite to successful innovation is access to capital. The central theme of Bruce Berman’s new book of timely essays, The Intangible Investor, focuses on the issues surrounding our innovation economy: capital, valuation and leveraging IP for business advantage. While are there are many sophisticated investors and business executives, the domain of intellectual property and intangible assets is very different from the bricks and mortar world that they inhabit. Unlike real estate, intangible assets are not scarce, can be infinitely replicated and wholly divided. That makes monetizing those patents that have value a formidable challenge.