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.
The following article is the first of a three-part series. An abbreviated version of this article originally appeared in the Sept./Oct. 2012 issue of IAM Magazine.
Elijiah McCoy, holder of 57 patents and a member of the National Inventors Hall of Fame.
As a first-generation American whose parents emigrated from Haiti, the poorest country in the Western hemisphere, the Civil Rights movement has always interested me. In fact, my mother always dreamed that her Ivy League-educated, lawyer son would become a civil rights lawyer. I am, however, an Intellectual Property (IP) lawyer. That is, I deal with the patent, copyright, trademark and trade secret laws for clients who are mostly in the electronics, software, financial services and e-commerce fields. This is not exactly the job description of an NAACP attorney.
In an aim not to disappoint my mother, however, I’ve always argued to her as follows: “The civil rights movement was really about fighting for the economic rights of Black Americans – the right to equal pay, the right to spend their money anywhere they wish, etc. In the 21st century innovation-led world, economic rights are all about IP rights. How so? Well, less than 5% of American workers are now employed in manufacturing. America is becoming very much a white-collar society, the outputs of which are intangibles protectable by IP rights. That is how we Americans measure wealth and that is how I can help fellow Black Americans.” A skeptical “hmm,” is how she always replied. Well, after really examining the current state of affairs, I too am starting to become skeptical of my own argument! But should I be?
Yesterday, Kolon Industries Inc. and several of its executives and employees were indicted for allegedly engaging in a multi-year campaign to steal trade secrets related to DuPont’s Kevlar para-aramid fiber and Teijin Limited’s Twaron para-aramid fiber. The charges were announced today by U.S. Attorney for the Eastern District of Virginia Neil H. MacBride; Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division; and Jeffrey C. Mazanec, Special Agent in Charge of the FBI’s Richmond Field Office.
Headquartered in Seoul, South Korea, Kolon was indicted by a grand jury in Richmond, Virginia. The indictment charges Kolon with one count of conspiring to convert trade secrets, four counts of theft of trade secrets, and one count of obstruction of justice. The indictment further seeks forfeiture of at least $225 million in proceeds from the alleged theft of trade secrets.
The 50th session of Assemblies of WIPO member statesreached a breakthrough decision on how to complete negotiations on a pact to improve access to copyrighted works for the many visually impaired or print disabled people around the world.
In another significant decision, WIPO’s 185 member states agreed to expedite work towards a design law treaty to develop simplified standards for industrial design registration procedures.
The WIPO Assemblies, which met from October 1-9, 2012, took stock of the Organization’s substantive work over the last year, and provided direction for the future work program. At the closing of the Assemblies, WIPO Director General Francis Gurry welcomed the “extremely constructive engagement of member states” in the work of the Organization as demonstrated in the decisions taken by the Assemblies. He underlined the progress made by member states in setting timetables for concluding negotiations on international instruments on access to copyrighted work by the visually impaired, design law and intellectual property and genetic resources, traditional knowledge and folklore.
A report assembled by the USPTO and the economics and statistics administration (ESA) states that intellectual property intensive industries account for 27.1 million jobs (18.8% of all employment). These same IP intensive industries, which are better defined in the report, also account for $5.06 trillion or 34.8% of the U.S. GDP. See also IP Contributes $5 Trillion and 40 Million Jobs to US Economy. Therefore, it is clear to see the importance of intellectual property within the economy of the United States.
“The first step in winning the future is encouraging American innovation,” said President Barack Obama explains almost two years ago in his State of the Union Address delivered to Congress in January 2011. Innovation is the process through which new ideas are generated and ultimately put into the marketplace. Innovation is one of the main forces behind the growth of the U.S. economy — it spurs national competitiveness.
Innovation and how to foster next generation technologies is a topic of very active discussion within businesses across the country. But how can America continue to be one of the most innovative countries in the world? The rapid adoption of IP management and licensing platforms built around social collaboration seems to lead us to one answer – open innovation. Indeed, with today’s technology allowing for the seamless transfer of information – R&D departments have little to no choice but to begin to embrace the open innovation model and use it to their advantage. Understanding your intellectual assets and being able to capitalize on them in order to generate more revenue must be an important part of managing IP and fostering innovation.
Yesterday afternoon in a blog post on the White House blog, Victoria Espinel, who is the U.S. Intellectual Property Enforcement Coordinator, announced that the Administration is seeking input from the public on a new strategy for intellectual property enforcement. “The overarching objective of the Strategy is to improve the effectiveness of the U.S. Government’s efforts to protect our intellectual property here and overseas,” said Espinel. “[I]t matters that we have the right approach—one that is forceful yet thoughtful, dedicated and effective, and that makes good and efficient use of our resources. Therefore, who better to play a key part in shaping the new Strategy than you, the American people?”
Earlier today the Federal Register Noticeannouncing the Administration attempts to develop a join strategic plan on intellectual property enforcement was published. The announcement explains by committing to common goals, the United States will more effectively and efficiently combat intellectual property infringement. Frankly, I don’t know what this means. Are we not all on the same page already? I know there are nay-sayers out there, but does anyone really take seriously the anti-IP sentiment spewed by the anti-capitalist crowd? Seriously, thanks to a generation or more of policies that have made it difficult to impossible for manufacturers to succeed in the United States intellectual property is by and large all we have left to drive the economy.
“This report provides further evidence that America’s technology transfer system established by the Bayh-Dole Act of 1980 is a key underpinning of our innovation economy,” stated BIO President and CEO Jim Greenwood.
Bayh-Dole enables the patenting and commercialization of federally-funded university and non-profit institution research. Bringing these discoveries from the lab to the marketplace creates new products, new jobs and new companies that expand the economy and improve the nation’s health and quality of life. The BIO study documents the significant return on investment that U.S. taxpayers receive by funding basic scientific research in the academic and non-profit worlds through the Bayh-Dole Act, which The Economist has referred to as the most significant and successful piece of domestic legislation since the end of World War II.
IPXI is a a financial exchange that facilitates non-exclusive licensing and trading of intellectual property rights with market-based pricing and standardized terms. At the core of the business model is what IPXI calls a “Unit License Right” or ULR. According to IPXI, “ULR contracts transform private licensing of technology into consumable and tradable products, allowing for improved market transparency, smooth technology transfers, and increased efficiencies.” Essentially, ULR contracts will eliminate the inefficiencies that plague traditional bilateral licensing efforts because the exchange will act as an intermediary between patent owners and potential licensees, with rights being exchanged on an open market.
Australia’s Ambassador and Permanent Representative to the World Trade Organization, Tim Yeend, and Director General Francis Gurry (Photo: WIPO/Berrod)
Geneva, June 15, 2012 — Australia and the World Intellectual Property Organization (WIPO) today signed an agreement detailing how an AUD$2 million Australian contribution would assist least-developed and developing countries improve their intellectual property systems.
Australia’s Ambassador and Permanent Representative to the World Trade Organization, Tim Yeend, said Australia’s contribution built upon existing cooperation between WIPO and IP Australia in relation to the provision of IP-related technical assistance and capacity building in the Asia-Pacific region.
Geneva, June 15, 2012 — The stage is set for a new international treaty that would extend the protection for audiovisual performers, granting them both economic and moral rights similar to those already recognized for music performers. Over 500 negotiators from WIPO’s 185 member states, as well as actors, industry and other stakeholder organizations will meet in Beijing from June 20 to 26, 2012 to finalize discussions on an international treaty to update the intellectual property rights of audiovisual performers, such as film and TV actors and actresses. The meeting will be opened on June 20, 2012 at the China World Hotel by WIPO Director General Francis Gurry and high ranking Chinese State and Beijing Municipality officials.
The Diplomatic Conference on the Protection of Audiovisual Performances, convened by WIPO and hosted by the Government of the People’s Republic of China, is the culmination of over twelve years of negotiations. It is expected to result in a treaty that will strengthen the economic rights of many struggling film actors and other performers and could provide extra income from their work. It will potentially enable performers to share proceeds with producers for revenues generated internationally by audiovisual productions. It will also grant performers moral rights to prevent lack of attribution or distortion of their performances.