Closing the Gap Between Intellectual Property Awareness and Understanding

By Manny Schecter
February 3, 2019

“We can be aware there are such things as patents, trademarks and copyrights and perhaps have a sense of what they are, but not really understand them or how they achieve their intended purpose. And that is the case with the general public. Though intellectual property awareness is increasing, IP understanding is simply not on the same trajectory.”

https://depositphotos.com/5495187/stock-photo-intellectual-property-background-concept.htmlIntellectual property (IP) promotes innovation. The limited right to exclude others from copying patented inventions, copyrighted original works of authorship, and trademarked brands and logos encourages innovators to invest their time and money.

IP appeals to our sense of fairness by discouraging or preventing counterfeiting, passing off, and other harmful takings of the fruits of investments in research, development, creativity and innovation, and is leveraged by entrepreneurs seeking start-up capital. Unfortunately, the general public lacks a true understanding of how IP fuels our innovation economy.

The importance of IP has increased in recent decades, as evidenced by the growth in the portion of company value that stems from intangibles and the use of IP as an important tool in global competition. Given the growth in importance of IP, it is not surprising that awareness of IP has also grown. In the past, one had to resort to law books and legal journals to learn and keep up with recent developments about IP.

Today, IP practitioners are bombarded with so many free newsletters about IP that we simply cannot read them all—it is no longer a function of getting access to information, but which sources of information are the best use of one’s time. The same is true for the general public, which is increasingly exposed to references about IP in social and news media, advertising, and other public channels. Unfortunately, those references to IP are not always accurate and often require explanation.

Awareness is Not Understanding

Awareness and understanding of IP are not the same thing. We can be aware of something and not really understand it. We can be aware there are such things as patents, trademarks and copyrights and perhaps have a sense of what they are, but not really understand them or how they achieve their intended purpose. We can know of them, but not be literate in them—and that is the case with the general public. Though IP awareness is increasing, IP understanding is simply not on the same trajectory. IP understanding might be increasing but it is not keeping up, and a significant gap remains between IP awareness and genuine IP literacy.

Why does the general public lack an understanding of IP? First, IP is complicated. Short, catchy sound bites may capture attention, but fall short on vital information. Articles frequently refer to different types of IP confusingly or even (wrongly) interchangeably. Authors also get confused about various aspects of patents—for example, failing to appreciate the difference between a patent and a patent application, conflating the title of a patent with the scope of patent claims, confusing patent issue dates with patent application filing and publication dates, etc. Although some countries (e.g. China) actively school students about IP, other countries (including the U.S.) are less focused on such education. So, often, the general public does not appreciate what IP is, how it is acquired, and how it achieves its intended purpose of promoting innovation.

Another hurdle to general public understanding of IP results from the public debate about IP. We lawyers argue vigorously for our preferred positions (and those of our clients) and we may use rhetoric and take extreme positions in order to make our points and posture for negotiations, including statements that may unjustifiably tear at the fabric of the IP system, rather than questioning the value of a particular innovation.

This can actually mislead the general public about the benefits of IP. Some members of the public nihilistically advocate for the elimination of IP altogether, without any discussion of how the IP system might be improved. It is critical that the public appreciate why IP is vital and understand the delicate balance among IP system constituents.

Fundamental Principles

Public confidence in our IP system affects everyone. Misunderstanding enables a lack of respect for IP. In keeping the IP system vibrant, we must not lose sight of certain fundamental principles.  If we want our competitors to respect our IP, we need to respect theirs. If we want other nations and their citizens to respect our IP, we need to set an example by respecting each other’s IP in this country.  If we have concerns about the IP system, we should address them specifically and focus on improvement without condemning the entire IP infrastructure.

There is too much at stake to short-change IP understanding. We all want to optimize the promotion of innovation, which fuels economic growth and competitiveness. Those of us who are familiar with IP matters are obliged to help others overcome confusion and miscommunication and to act to fairly expand an appreciation of IP and its value. Our innovation economy and national security, as well as our quality of life, hang in the balance.

Manny Schecter is a member of the boards of directors of the Center for Intellectual Property Understanding, the Intellectual Property Owners Association (IPO), the IPO Education Foundation (where he serves as president), and Allied Security Trust. This article is based on his keynote presentation delivered at the IP Awareness Summit, held by the Center for Intellectual Property Understanding at the Columbia University School of Journalism.

 

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The Author

Manny Schecter

Manny Schecter is Chief Patent Counsel and Associate General Counsel at IBM. He has helped IBM generate over $20B of income from IP during his career while maintaining its position as the top annual US patentee for the last 24 consecutive years. He has worked his entire legal career of over 20 years in various business units of IBM, achieving his current position in 2009.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 16 Comments comments. Join the discussion.

  1. Anon February 3, 2019 3:34 pm

    First,

    I would separate the forms of IP into the two different Constitutional drivers (Patent Clause and Commerce Clause) and differentiate between patents and copyrights on the one hand, and trademarks on the other. Trademarks do NOT have a tie to innovation.

    Yes, they may have a tie to identity protections, but that is simply not the same thing, and it is NOT helpful to have an article with the aim of desiring understanding to show a lack of understanding between the forms of IP.

    Getting beyond that point (and that point is far less important to the larger thrust of the article), I definitely agree that awareness and understanding are both different things and that understanding painfully lags.

    One important point in this lag, is that the public at large is susceptible to the propaganda from the anti-patentists (and “anti-patentist” is a term that describes more than one group, with more than one driving philosophy). In fact, it beckons for everyone to understand that those who may desire to weaken (or not have) patents DO come from multiple camps with different driving philosophies.

  2. Josh Malone February 3, 2019 5:24 pm

    With respect to patents, the experts do not understand it. Here, try to answer these questions:

    1. Is a patent the right to exclude others from practicing the claimed invention?

    2. Is a patent a property right?

    3. Is IPR an adjudication of a dispute between private parties?

    SCOTUS, USPTO, DoJ, and the IP Bar each answer both yes and no to all of these fundamental questions.

  3. Anon February 3, 2019 8:00 pm

    Great questions, Josh.

    To your question one, I would add that the answer should include a discussion on the differences between a “positive” right and a “negative” right.

    To your question two, I would a discussion as to the differences between a Public Franchise property right and a Private personal property right, which is reflected in the law as directly written by Congress (hint: 35 USC 261),

  4. Mike February 3, 2019 10:38 pm

    Here is just ONE example of where an attorney, posting educational information on YouTube, is informing his audience INCORRECTLY. In a video entitled “Intellectual Property” — https://youtu.be/85YRhJYynpE — he states: “A patent is an exclusive right to make, use, sell, or import an invention.”

    A patent is no such thing. A patent does not grant the patent owner the right to produce anything. How can attorneys even get this bit wrong?

    A patent is an exclusionary right, granting to the patent owner the RIGHT TO EXCLUDE OTHERS from making, using, selling, or importing an invention, which is NOT the same thing as having the right to produce etc. And this difference means everything.

    I asked that the lawyer provide correction to the video, so hopefully he will act accordingly and take the video down.

  5. Benny February 4, 2019 5:36 am

    In order to promote public understanding of patents, first off you have to stop using Latin terminology and legalese in public discussion and try and get your message across in plain English (I’m looking at you, Anon), which, for some of the US public, is in itself a challenge to comprehend.
    More to the point, I suggest you look at WIPO’s “publications for young people” (on the WIPO site, under knowledge-publications) and you will see a brochure entitled “your own world of IP” which explains IP at a level suitable for the general public of a country which has a pretty low bar for the intellectual integrity of its’ leaders.
    To paraphrase a great family man from a famous television series: “To what do you attribute the apathy and ignorance of the American public regarding IP? I don’t know and I don’t care”.

  6. Mike February 4, 2019 6:08 am

    Regarding 2. “Is a patent a property right?”:

    Notwithstanding 35 USC § 261 (“Subject to the provisions of this title, patents shall have the attributes of personal property.”), these also say “yes”:

    a) “Inventions secured by letters patent ARE PROPERTY in the holder of the patent, and as such are as much entitled to protection as any other property, consisting of a franchise, during the term for which the franchise or the EXCLUSIVE RIGHT is granted.” Seymour v. Osborne, 11 Wall. 516, 533 (1871). (emphasis added)

    b) The Patent Office by issuing patents “under the authority of law” grants “an EXCLUSIVE RIGHT upon the patentee. THIS IS PROPERTY … the PRIVATE PROPERTY OF THE PATENTEE by the action of one of the departments of the government acting under the forms of law[.]” United States v. American Bell Telephone Co., 128 U. S. 315, 370 (1888). (emphasis added)

    Regarding 1. “Is a patent the right to exclude others from practicing the claimed invention?”:

    Notwithstanding statute and the “exclusive right” cited in US v American Bell above, Seymour also says “yes”, and of particular interest is the phrase “as contemplated by the Constitution and sanctioned by the laws of Congress”:

    “Letters patent are []to be regarded … as public franchises granted to the inventors of new and useful improvements for the purpose of securing to them, as such inventors, for the limited term therein mentioned, the EXCLUSIVE RIGHT and liberty to make and use and vend to others to be used their own inventions, as tending to promote the progress of science and the useful arts, and as matter of compensation to the inventors for their labor, toil, and expense in making the inventions, and reducing the same to practice for the public benefit, AS CONTEMPLATED [78 U.S. 516, 534] BY THE CONSTITUTION AND SANCTIONED BY THE LAWS OF CONGRESS.” Seymour v. Osborne, 11 Wall. 516, 533 (1871). (emphasis added)

    The Founders desired that CONGRESS be the entity with the power to decide exactly how the law is to promote the progress of science and useful arts.

    This speaks to EBay Inc. v. MercExchange (2006) where SCOTUS believed itself more adept to write the law, and took away exclusivity.
    This also speaks to Bilski/Mayo/Alice’s “judicial exceptions”, where SCOTUS believed itself more adept to write law, taking it on itself to define *what it believed Congress SHOULD HAVE legislated* regarding patent eligibility in 101.

    I find it appalling that the Supreme Court says in Henry Schein (2019) that “we are not at liberty to rewrite the statute passed by Congress and signed by the President,” yet the Supreme Court does so with respect to patent law.

  7. Josh Malone February 4, 2019 6:55 am

    Mike, with all due respect, Supreme Court precedent is the LAW. Legally and practically. Any patent attorney that says it is the right to exclude is misleading his audience (unless he is teaching q history class).

  8. Anon February 4, 2019 7:23 am

    Look all you like Benny, but let me throw a little (paraphrased) Einstein at you:

    Patent law should be made as simple as possible, but no simpler.

    If you would like, let me know which legalese (since I do not use Latin too much) that you are having trouble with and I will try to provide you a “simple English” version.

  9. John White February 4, 2019 7:47 am

    Here, here, Manny! Great article which I will duly forward around. For those of us in the business, we must foster better understanding for those not in the business. We must take up the job of making IP concepts more accessible so that more can inveigh to the creation of IP driven prosperity. Understanding and enthusiasm creates a much higher likelihood of participation and, thus, greater value for all of society.

  10. James February 4, 2019 9:44 am

    I’m a small business owner who has an idea about a utility patent.

    I’m doing lots of reading and research to understand “what” exactly is a patent. So far, I’ve read (and listen) that it gives me several rights. But on the other side of the coin experienced inventors are saying patents are useless because a person like me can go broke defending one. So, what’s the point in getting a patent when you can’t defend against a larger, wealthier entity. It seems to me the only people whe benefit are the attorneys.

    Sigh…

    Back to reading. Great post by the way!

  11. Bruce February 4, 2019 11:18 am

    Benny — Excellent point. IP owners and professionals need to learn how to reach out to various audiences effected by IP — or to educators, journalists and IP organizations who are better able to.

    IP rights – all of them – have fared miserably in the Court of Public Opinion. No wonder IP owners and those associated with IP are seen negatively.

    There is a palpable frustration with IP rights on the part of the public, creators, investors and various business sectors. It should not be accepted as the norm.

  12. Mike February 4, 2019 11:43 am

    Josh, I must agree with you on this sorry state of affairs. Our Supreme Court precedent is off the rails.

    – The Constitution says that Congress has the power to secure to inventors the exclusive right to their discoveries to promote the progress of science and useful arts.

    – Congress used their power and created the letters patent as that securing instrument.

    – The Supreme Court affirmed that exclusive right by letters patent for over 200 years.

    – Yet in Ebay (2006), the Supreme Court said that exclusive no longer means exclusive, essentially saying that the Constitution didn’t apply to them and that Congress’ power, as laid out in the Constitution, didn’t extend to securing the “exclusive right” provision anymore; rather, it is the SCOTUS, in their imminent wisdom, who gets to decide what promotes the progress of science and useful arts with respect to the right to exclude others. And thus, they say exclusive doesn’t mean exclusive anymore.

    – And yet again, flying in the face of their own actions, we have Henry Schein (2019), where SCOTUS says “we are not at liberty to rewrite the statute passed by Congress and signed by the President.”

    The precedent is off the rails. That should also be taught in the history class.

    What is the solution when the Supreme Court doesn’t follow the text of the law and creates that of their own?

  13. Josh Malone February 4, 2019 8:41 pm

    Kudos to James for exercising due diligence and to Gene for the forum and Manny for setting the goals. Inventors are crazy but we are not stupid. Congress and the patent attorneys need to put Humpty Dumpty back together again. Only then will inventors will have the resources (i.e., a reliable title to their inventions) to rescue our nation from Chinese domination.

  14. Ashok February 5, 2019 12:29 am

    Besides what patents are in legal terms the discussion needs to extend to what and how they are being used by large and small businesses.
    That is to say the discussion must include samples of what is being actually practised.
    Ashok

  15. Claim Scape February 5, 2019 2:51 am

    Mike, may I add another example following your point?
    Faculty on Point | Professor Mark Lemley on the Patent System

    https://youtu.be/N2vGCjhCWgs

    “If your invention is important enough, it’s new enough, we will let you and only you make use of that invention.”

  16. Anon February 5, 2019 4:55 pm

    Ashtok,

    I am a little confused by your post. You are aware that a patent does NOT provide any “right to practice” (or in your words “samples of what is being actually practiced,” right?

    The distinction between a “negative right” and a “positive right” is a fundamental distinction for the property that is a patent grant.

    There is a new post on the blog that covers this theme.

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