After seeing how the federal agencies intend to implement the recommendations from The White House Lab to Market Summit the difference between product and process oriented people really hit home.
Product people burn with a passion to get the job done. Process people focus on rules and procedures to minimize risk. Thus, product people are like the accelerator and process people are the brakes. You need both in your car, but if the brakes run the show you’ll never get out of the driveway. Similarly, whenever deal makers are subservient in a system to process people, frustration is sure to follow.
Last year the White House put together its Lab to Market Summit and asked Diane Palmintera and me to co-chair a panel of external experts to review several innovative agency technology transfer programs and come up with “transformational, not incremental” ideas to increase the commercialization of $140 B of federally funded research.
During the State of the Union address to Congress in January 2014, President Obama called for passage of a patent reform bill that would allow businesses to stay focused on innovation, not litigation. Today, in what was billed as part of the “Year of Action: Making Progress Through Executive Action,” the Obama Administration highlighted progress made on previously announced executive actions, and also announced three new actions to further respond to the President’s desire to increase patent quality.
Currently the President is under fire for Executive Actions, which is something that he railed against when he was Presidential Candidate Obama in 2008, but increasingly embraces. The criticism of the President with respect to Executive Action has heretofore been related to the fact that through executive fiat the President has single handedly re-written laws passed by Congress. Of course, there is no Constitutional authority for the President to re-write laws, but that hasn’t stopped him, at least with respect to the health care law.
No such re-writing of law seems to be implicated in the Executive Actions announced today relative to the patent system. In fact, the Executive Actions on the patent front are largely much ado about nothing and seem most intended to grab headlines. Still, there are a few items that make perfect sense, such as the USPTO working with industry to train patent examiners on cutting edge scientific developments and an expansion of the pro bono program. Still, other initiatives claim to address patent quality but I can’t for the life of me understand how that could be possible. How accurate ownership records kept after the issuance of a patent will help patent quality is a mystery to me, and unexplained by the White House.
Professor Colleen Chien testifying before the House Subcommittee on Intellectual Property, Wednesday, July 18, 2012.
Santa Clara University School of Law Associate ProfessorColleen Chien has been selected to serve in the White House Office of Science and Technology Policy (OSTP), as senior advisor for intellectual property and innovation to Todd Park, the U.S. chief technology officer. Chien will take a leave of absence from her teaching duties for at least a year to fulfill her new appointment, which begins Sept. 16.
In her new role, she will advise Park on issues related to intellectual property and innovation, as well as privacy, open government, and civil liberties. She will help ensure that OSTP can fulfill its missions to coordinate science and technology policy across the executive branch and to provide advice to the president on science and technology policy matters.
“Strategic planning is worthless—unless there is a strategic vision”
~ John Naisbitt: in Megatrends
“The final test of a plan is its execution”
~ U.S. Army Field Service Regulations
Before attempting to overhaul a complex, deeply entrenched system you’ll need to have an effective plan to get you where you want to go despite predictable opposition, and someone who’s charged with the insuring that the plan is being faithfully adopted. Two completely independent reports— one looking at improving the commercialization of federally-funded research overall and another focusing on the Department of Energy’s laboratories— produced remarkably complimentary blue prints on both aspects needed to move forward.
Both reports looked at fundamental issues preventing greater commercial development of federally funded R&D. The problem is not so much that needed legal authorities or White House direction is lacking. Rather, an absence of effective day to day oversight means that the need to change often gets smothered in the system. Without hands on leadership, huge systems simply don’t change long established behaviors on their own.
On Monday, August 5, 2013, the the Association of University Technology Managers (AUTM), a nonprofit association of academic technology transfer professionals, released the highlights of the AUTM U.S. Licensing Activity Survey: FY2012. The AUTM survey shares quantitative information about licensing activities at U.S. universities, hospitals and research institutions.The full report is scheduled for release at the end of the year.
The highlights of the survey reveal that University licensing and startup activity continued to see a robust increase during fiscal year 2012.
Institutions responding to the survey reported $36.8 billion in net product sales from licensed technologies in fiscal year 2012. In addition, startup companies formed by 70 institutions employed 15,741 full-time employees. This was the second year in which AUTM asked questions specifically targeted at ascertaining the economic impact of academic technology transfer.
Nothing fires up a legislative debate like an unexpected White House intervention, and if the Obama administration’s patent-policy announcements this month were aimed at generating headlines and Capitol Hill conversations, they succeeded. See White House Task Force on High Tech Patent Issues.
But if the intent was to steer the debate toward a balanced approach that would curb frivolous litigation without imperiling an intellectual-property protection system so key to nurturing innovation and job protection in this country, the effort appears to have failed.
Please don’t get me wrong. There are plenty of good reasons for the White House to get involved.
There are nearly half a dozen patent-related bills or proposals under consideration in the House and Senate, and the debate is sorely in need of facts and serious study. Much of the proposed legislation would make wholesale changes to the patent system, ignoring two centuries of clear evidence that strong patent protection promotes innovation, economic growth and a higher standard of living for Americans.
There is no doubt that the Obama position will be loved by Google and other Silicon Valley technology giants that despise the patent system. Given the revolving door between the Obama Administration and Google, the long-term close relationship between President Obama and Google (see here, here and here), and the fact that patent issues don’t resonate with John Q. Public, it seems likely that the President stepping in now to allow him to tout that he is engaged with issues of importance in the minds of tech giants who will be asked for large checks later this week.
But what executive action could the President really take that would make a difference?
Today the White House announced major steps to improve incentives for future innovation in high tech patents, a key driver of economic growth and good paying American jobs. The White House issued five executive actions and seven legislative recommendations designed to protect innovators from frivolous litigation and ensure the highest-quality patents in our system. Additionally, the National Economic Council and the Council of Economic Advisers released a report, Patent Assertion and U.S. Innovation, detailing the challenges posed and necessity for bold legislative action.
In 2011, the President signed the Leahy-Smith America Invents Act (AIA), a landmark piece of legislation designed to help make our patent system more efficient and reliable. As technology evolves more rapidly than ever, we must ensure our patent system keeps pace. As President Obama said in February, “our efforts at patent reform only went about halfway to where we need to go. What we need to do is pull together additional stakeholders and see if we can build some additional consensus on smarter patent laws.”
The AIA put in place new mechanisms for post-grant review of patents and other reforms to boost patent quality. Meanwhile, court decisions clarifying the scope of patentability and guidelines implementing these decisions diminish the opportunity to game the patent and litigation systems. Nevertheless, innovators continue to face challenges from Patent Assertion Entities (PAEs), companies that, in the President’s words “don’t actually produce anything themselves,” and instead develop a business model “to essentially leverage and hijack somebody else’s idea and see if they can extort some money out of them.” These entities are commonly known as “patent trolls.” Likewise, the so-called “Smartphone Patent Wars” have ballooned in recent years and today, several major companies spend more on patent litigation and defensive acquisition than on research and development.