Patent holder privilege[edit | edit source]

An option which does not seem to be realised by many is the privilege that a patent holder has in deciding how to use the patent. For example they can decide to license to other companies only if they are serious about deployment, or if they are non-commercial, or if they are willing to share their learning experiences in a common learning pool, etc. In this way they can stimulate companies with "good intentions" to acquire licenses. Kim and Mauborgne (2000) assert that producers of products with strong pattern protection can set higher prices when determining their pricing strategy. But it is important to realise that they do not have to. They have the freedom to set more affordable prices, and if they have optimised their innovation processes and care about wide use of their products, they may decide to do so.

A famous example of an organisation that has started a "movement" based on such "conditional licenses" is the Creative Commons organization, that asserts that instead of "All rights reserved" a better option is "all rights reversed" or more formally known as "Some rights reserved".[1]

In the area of copyrights, they have defined standardised options for authors to define their level of protection. Defining such standardised options of conditional licenses may facilitate the use of the mechanism in other areas as well. This seems to be a societal development and one that is less or not governed by legal processes.

A very recent example of this type of solution being used by a high-profile set of organizations, is the Eco-Patent Commons, initiated by the World Business Council for Sustainable Development (WBCSD, 2008), for now directed at climate friendly and resource use efficiency enhancing inventions. One of the core premises, very much in line with what is stated in this article, is "...leading businesses may hold some patents that provide environmental benefit and do not represent an essential source of business advantage for them. Though these patents may provide nominal license or exclusivity potential for companies, they may provide greater value in a public commons". In stating so, it recognises that IPR-regimes are no longer black & white affairs, and a company does not need to give up its crown jewels, while still being able to contribute to the public good. It also encourages competition amongst companies that can now compete based on their deployment capabilities instead of research, which often requires much deeper pockets. In the ideal situation, it may stimulate and facilitate co-creation processes, especially for early phases of product development. As stated earlier, the benefits that companies derive from such processes depend on their ability to identify and capture value from these processes.

Public tenders[edit | edit source]

A specific form of the previous option is a tender. If inventors care about actual wide deployment and less about their own financial benefits they could organise a tender for bidders, and sell to the bidder who has the best intentions with the invention. In that way, companies have to take some trouble to explain how they intend to use the invention. This may stimulate two things: companies that are not really interested (but wanted to keep the invention on the shelf) may be "crowded out", and it is not just the money that determines who gets to deploy: the inventor can decide to sell to a bidder who offers less money but a better and more "enlightened" strategy for deployment. This effect is possible in current licensing, but is even more likely to manifest itself if it is stimulated in this way. This will be enhanced if tenders are public. This will deter companies that otherwise could be tempted to present a more positive story than they actually intend to execute. Scrutiny by any stakeholder in the public sphere, including NGOs, is not something that companies nowadays particularly like. The public nature of the tender could be somewhat reduced to allow companies the opportunity to implement the plan.

This situation could enable non-profit organizations to play a bigger role. For one, their more traditional role to manage public scrutiny processes. But they now also have a more active role to play, namely being among the bidders in a tender process. With intention and quality of plans trumping the prices that can be paid, the conditions would be present for them to become actively involved. The more entrepreneurial ones can then show that a non-profit approach to technology deployment has a positive impact on its distribution. The key to success for this scenario is the requirement of the inventor to recover at least basic costs (how high are these), but also the (in) ability to function of NGOs to act as a market player towards the final consumers. That last argument could keep them from detecting relevant patents that are disclosed in patent databases. The possibility to play a more active role may actually inspire a next generation of NGOs to develop and claim their place. They would need to avoid the situation where they are accused of unfair competition, e.g., because their whole development and deployment process is subsidised.

Not patenting[edit | edit source]

Inventors and even organizations can decide not to patent an invention. Instead they can spend time, energy and money in turning them into marketable products, alone or in cooperation with others. By shifting attention to quick deployment they can beat possible competitors. In case they keep their invention a secret, they would run the risk of someone else receiving a patent and then having to pay them (Burk and McDonald, 2007). However, one of the conditions of getting a patent is that the invention has to be new. If the original inventor makes sure that a sufficient number of people have the relevant information (i.e., it is "public"), this would successfully block any right to patent the invention by other people and thus completely cancel out the risk of having to pay royalties. This is a clear difference with companies who use "trade secrets", because in their case that information is not public and thus cannot block patent applications by others. Not patenting can result in a shift towards deployment: more information is being disseminated and there are less hurdles for arbitrary organizations to use the invention. Their capacity to do so will determine their competitive position. Companies could in this way still have aspects that they keep secret and provide them with advantage for some time.

Another reason to use restraint with patenting has emerged based on the discussion on patent sharks. Henkel and Reitzig (2008) suggest five ways to prevent or at least mitigate that risk, many of which include moving away from building large patent portfolios, more focus on cooperation within and outside companies, and use patenting only for significant inventions, which would enable patent offices to spend more time on valuable patents, thereby raising the bar and preventing patent thickets. Some favour patent offices to engage in active dialogue to help draw out such anticompetitive actions (Dixon and Greenbalgh, 2002) vut this requires and open mind-set on all sides. The main gist of the recommendations is that everyone can contribute to and benefit from the situation where creativity is put into actual applications, and not in the best way to squeeze money out of companies. Such an atmosphere can hardly be enforced, so companies have top take the lead.

Patent in developed countries only[edit | edit source]

A specific mechanism to stimulate diffusion to developing countries is to not apply for a patent there. This means that companies in those countries are free to use it, as long as they don"t export the products to countries were the patent is filed, so as not to hurt competitiveness in those markets. Organizations that sell the products could shift to providing product-related services in the developing countries, including training to stimulate the deployment and correct use of the products. Maskus et al (2004), although generally in favour of stricter regimes, acknowledge that patents can block technology transfers under certain circumstances, which is facilitated by globalised IPRs. By "de-globalising" IPRs for certain sectors this effect may be mitigated. An interesting option to investigate that seems to strike a balance, is to initiate a BoP-patent (Bottom of the Pyramid), that could be applicable to certain markets, balancing the purchasing power and danger of massive infringement. Another option is to explcitly use differentiated license fees so goods can be brought on the market more cheaply in developing countries; this would need to go hand in hand with mechanisms to avoid parallel imports to developed countries (Dixon and Greenbalgh, 2002).

Auctions[edit | edit source]

Another way to speed up the process of diffusion is to auction off unused IPRs. There have been examples of such auctions, but mainly related to very old patents. Depending on how such an auction is designed (purely financial or not), this could again provide room for organizations that are more concerned with the general benefits to society like non-profit organizations. As a proxy, patent agencies can stimulate such developments by publishing expiration dates more pro-actively. This option is quite similar to the public tender, but likely requires less disclosure of plans by the purchasers.

Value learning by doing more and share experiences[edit | edit source]

There is a whole other road when looking at ways to stimulate deployment, which really has much to do with how companies look at how their intellectual property can create value for them. Companies may decide that lead time, working on design and learning capability and actually gaining experience with the product once used provide signifcant advantages (Dixon and Greenbalgh, 2002). they may even decide that sharing these experiences with others who develop and deploy the same type of product, is more beneficial to them than securing high profits per product (but probably at low volumes) for the short term. They could develop a shared learning pool. If they actually did get a patent, they could make this one of the conditions in giving out licenses: all licensees benefit from sharing their experiences. While actual experience is a very valuable competitive advantage, the ability to incorporate these experiences is even more so, and this will not be negatively affected by being part of such a group. They speed up their specific, and possibly their general learning curves. While in such environments crowding in can be stimulated, the barriers should not be set too high, to prevent the opposite effect. That effect would be crowding out. This could lead to an unintended monopoly by the group who can then split the profits (i.e., market) amongst themselves.

"Learning by doing" and incremental improvements are acknowledged by Oosterhuis and Faber (2007), in general as very good ways to bring down the prices of technologies. Their example refers to environmental technologies, so is specifically relevant if we are talking about sustainability, but their findings are likely to hold for other types of technologies as well. This is even more valid if the technologies have a potential to be deployed on a large scale.

This principle could by the way also be applied in the innovation phase itself, if the organisation makes a point of accepting or maybe even institutionalising failures as a way to learn (more) and thus arrive at even better products than would have been possible without failures along the way (Thomke, 2001). Especially for disruptive innovations, it seems essential to "plan to learn, not plan to execute" (Christensen, 2006). The mindset that is required for such an innovation philosophy has much in common with the mindset that seems to be required to share a common learning pool in the deployment phase. This may side-step one of the blocking issues that was identified in the research on use of open innovation principles (although here we are actually talking about open deployment) in the Dutch SME sector, namely the dominance of organisational and cultural differences in cooperation between companies (De Jong, 2006). The main uncertainty to tackle seems to be the competition argument: if companies share the same learning pool how can they achieve competitive advantage? Especially if they are direct competitors this is a relevant question.

To answer that question, it is useful to make a distinction that has been made before in this article, namely actual company-specific aspects like marketing, specific technology etc, and the abilities to use the same information and experience in a better, more diverse and more effective way than competitors, i.e., the ability to learn and incorporate. While exact predictions are hard it is rather easy to imagine that companies that are better at internalising the learning effects, i.e., have a better developed ability to learn, achieve competitive advantage. Secondly, the aforementioned capacity to include non-copyable (mostly intangible) elements and leveraging the brand name will become more decisive in shaping the competitive landscape. Such abilities are actually an indicator of overall quality of management. In the mean time, society benefits compared to the situation where companies act in isolation, and may not even achieve sufficient economies of scale to get an innovation off the ground. Economies of scale as a mechanism is another channel that has a positive influence on price reduction.

Reputation as competitive advantage[edit | edit source]

Another incentive for organizations to pay more attention to diffusion outside their own companies and actual deployment is the reputation aspect. This is especially valid related to developing countries or communities at home that do not have the resources. Companies can actually benefit on the whole if they are known for a conscious, inside-out (i.e., based on true beliefs) modern approach to these matters. Sustainable development and inclusion of developing countries in a pathway to a more developed but cleaner future are hot topics. A company that can demonstrate that it is contributing to both may find that it has created a better overall competitive position towards customers who are getting increasingly conscious about such matters. They also increasingly recognise that other companies do not address these concerns, or only by means of a re-active CSR strategy. Additionally, it is not just reputation that benefits. As Ross Kanter (1999) asserts, companies can gain very valuable new insights by not just focusing on the short term profit but approaching cooperation with charitable organizations or community projects as a testing ground (case Bell Atlantic - Union City) that justifies sub-commercial prices.

Cross finance "green or social" patents[edit | edit source]

As a final option to be discussed here, it is relevant to briefly mention the new initiative by the European Patent Office (EPO). They started a Green IP project, which aims to "...pay a proportion of patent-derived income into a trust fund for supporting the development of patent-protected green technologies" (Brimelow, 2008). While this initiative does not directly ensure a wider deployment of "green technologies", it does seem to provide an arrangement, where research costs for such technologies are carried by the EPO or at least a publicly available fund. This means that the costs to turn these new inventions into products are lower and could lead to more socially acceptable prices, thereby lowering the barrier for adoption and deployment. Whether this chain of effects materialises is something that the (near) future will shed more light on. At least it shows that the epi-centre of the IP-interests is taking on the challenge of thinking about how the traditional system can evolve into one that better addresses the needs and characteristics of the 21st century.

Summary of likely effects of the options[edit | edit source]

As a first attempt to structure the analysis of this highly complex field, all options that are described in this section will be briefly assessed on their acceptability/desirability for the various stakeholders.

Stakeholder Government Large company (issue-driven)

entrepreneur

Society Investors
Option
Patent holder privilege (free) Wide deployment, possible concern over competitiveness Possibility for non-core inventions, otherwise unlikely because of sunk costs Possibility to acquire inventions for free More inventions may reach market place, quality uncertain At first sight not interesting.
Public tender Market assumes part of role of government: does not need to regulate Can be outbid based on quality instead of financial resources More possibilities for NGOs, and entrepreneurs with eye for impact Likely benefits (quality of deployment trumping profits), but companies must be self-sustaining Interesting for 'patient capitalists'
Not patenting Opportunity to develop other capabilities, saves legal costs May save time and money, but effect uncertain Less limitations, likelihood of more affordable products available Depends on business models (revenue structure)
No patenting in DCs Requires extra monitoring, also on imports Differentiated strategies: complex but increasingly required Uncertain Situation in DCs may improve, leading to better distribution of positive effects, possibly leading to less conflicts Return-opportunities from DCs depends on intelligence of business model
Auctions Possibility to show good intentions Possibility for 'rogue; chances in old inventions Likely to be old patents so large benefit not obvious Mostly not interesting, save rare exceptions
Develop ability to learn, learn together Could be ideal for governments Stimulates more modern ways of development, but outcomes depend on own capacities: will lead to winners and losers Smaller organizations may adapt quicker, but still need to have the right capacities to become a winner Could result in much more modern suppliers, leading to better overall quality Outcome uncertain, depend whether they pick a winner or loser. These abilities are good management quality indicators
Reputation Less need for regulation Effect depends on type of CSR-strategy (from re-active to pro-active). Would have the advantage because of their starting point, but need to keep promises Need to pay more attention who they but from. Will need to combine investment decisions with 'softer' criteria
Cross finance Could lead to some regulation to prevent abuse Somewhat complicated Could benefit from the shared patent-pool Could lead to lower costs depending on design of the mechanism More difficult to pick the winners

As this first assessment shows, options to modernise the current playing field seem to hold promises, but the effects cannot easily be formulated in terms of "good" and "bad". This assessment could however provide input for discussions with stakeholders on how the positive scenarios can be achieved.

Outside current frameworks[edit | edit source]

Additionally, two ideas will be proposed that fall outside the scope of the current IP-regime. These ideas would need to be developed further and may not be practical to implement. Even in that case, they may provide elements that can be used in optimising the actual solution directions.

An Idea exchange: selling the proposed effect[edit | edit source]

A possible avenue could be that organizations can specialise in generating ideas and turn this into their reason of existence, providing other organizations with the opportunity to specialise in production and deployment. The idea-generators can then earn their income by selling off the ideas (as opposed to concrete inventions) and let the value be determined by the proposed effects for the companies that acquire the ideas. Transactions can take many forms, like a low initial fee and % of the sales of the eventual products or a % of the attributable decrease in costs. To ensure a sufficient protection for the idea generators, they may disclose only a small part (e.g., the basic idea and the proposed effects) and provide the rest upon acquisition. Such an IEX (Idea EXchange) could be set-up or experimented with. Companies may in this time of open innovation strategies value relations which such idea generators and may very well be willing to compensate them financially or otherwise for their effort. Of course this could also be arranged outside of an overall market setting like an IEX.

Intellectual Transfer Rights[edit | edit source]

Finally a completely novel mechanism to stimulate deployment is introduced. It builds upon the Idea exchange option and is based on the contention that we are dealing with two markets: ideas and inventions being adopted for deployment, and "deployment actors" who bring products to the end-user markets. These two market places have some distinctive features which could support the case for specialisation. In theory this could bring down overall costs hence stimulating more resource efficient and more widespread deployment. The proposal is still very conceptual at this stage.

More or less similar to the current licensing system, but focusing more on the importance of deployment, one could think of a system in which companies have to acquire ITRs (Intellectual Transfer Rights) to disseminate technologies. If companies buy off patents or acquire licenses from inventors, they need to buy the IPRs and then convert them to ITRs. Only companies with ITRs can disseminate and deploy inventions. ITRs are aimed at bringing down the overall costs, and stimulate a more effect-directed mindset by deployment companies instead of one that is focused on profit-maximisation alone.[2] This mechanism results in two markets: one market for IPRs between inventors and deployers, and one for ITRs (costs of which can be incorporated in the final products) between deployers and the end market. These are different markets, and because of the specialised nature, it is conceivable that firms will specialise in one of the two. Economically, this will lead to more efficiency which most likely means that both innovation and diffusion are positively affected in terms of costs. Large companies may still do both, but then face competition in both areas. When IPRs are transferred into ITRs other deployment companies would need a chance to do the same. A period would need to be set within which an IPR needs to be converted into an IPR, otherwise the IPR would expire. If this period is sufficiently short, pre-emptive patenting is likely to be severely reduced. Large companies with IPRs are also encouraged in this way to assess their own use of the IPR more quickly. If they conclude that they cannot easily bring the inventions to the market, they can decide to sell them, instead of shelving them, to recover at least some of the costs. They may still decide not to sell them but then their right of use also dissolves. This process would need to be monitored by a public authority, e.g. patent offices that already have access to the IPR-related information.

Since the purpose of ITRs is dissemination that is most optimal for society -in principle with a widest possible use- and the aim is not to get the highest possible profit, they ideally are volume based. So, the more actual products are sold, the higher the income for the disseminating companies: this stimulates wide deployment.[3]Deployers will estimate how popular a new technology will become, and this will determine their bidding in the IPR market.[4] Because of the specialised markets, the diffuser may have economies of scale advantages that enable him to sell the products more cheaply to the end market. This can supposed to be to the benfit of the inventor as well since more people can thus make use of it, for which the inventor may ack the abilities (Dixon and Greenbalgh, 2002). There is the issue of increased transaction costs, but this is for now assumed to solve itself as part of the price-setting process. The potential (temporary) increase of transaction costs is assumed to be offset by increased efficiencies as described above. This would decrease the overall costs, resulting in the possibility to charge lower prices.

In short, the benefits of such a system (assumed for now, and depending on exact design), would be the increased efficiencies thanks to specialisation, and reducing pre-emptive, or non-productive patenting. The latter effect could possibly in the current system also be approximated by shortening the expiration time of a patent. Without the stimulation of specialisation this may however not have the intended effect (Garnier, 2008). Similar to the renewal requirement for trademarks, ITRs could also be required to be returned to the IPR-owner who can then resell them again. In this way, the ITR-purchaser does have some incentive to put the ITR to use, which would be especially relevant for inventions that refer to the products that are the main focus on this paper. With deep pockets they could still keep the invention from the market for some time.

Role of governments[edit | edit source]

Nearing the end of this discussion-provoking paper, we will pay a little extra attention to the role of governments. In general a free flow from inventors to deployers without all kinds of rules and mechanisms would probably be beneficial for wide diffusion. But governments are in a particularly precarious position because of their ambivalent interests: protecting the competitive position of the unit they are governing, but also protecting the public goods that need to be secured.

A change in or addition to the (global) IPR-system like suggested with the ITR-option, could take a long time and given the number of alternatives as outlined above, a formal change may not be quite necessary. However, elements of the idea may be used to enhance or inspire implementation of the other options. Governments do have various channels at their disposal to push developments in the right direction. As asserted by Rijsdijk (2007), one of the most important actions on government"s part is providing a stable vision that can help companies to decide to make investments and use strategies like the one described above. Even in today"s world, governments still have an important role to play as "leaders of the transition" (ibid, 2007). The inherent complexity of finding the right balance between protection and diffusion is acknowledged by some of the leading scholars on (open) innovation (Chesbrough, Vanhaverbeke, Cloodt, 2006). They recommend to deal with intellectual property in a predictable, reliable but limited way to achieve this balance. A very interesting recent report discussed exactly this matter, in the context of a new Global Climate Deal (Tomlinson et al, 2008). They too acknowledged this required balance between economic incentives and mechanism for optimal diffusion in wake of global issues as essential. Their main suggestion involves a global 'protect and share' agreement between governments, resulting in much more rapid diffusion, while still recognising the need to compensate initial patent holders. Especially if companies do get substantial RD&D funds, governmente can make these subject to conditions. The elements of such an arrangement include many of the ones that have been discussed in this paper or discussed below, like free licensing in some markets, buy-outs, use-it clauses, risk guarantees and open access IPR pools (like the one of the EPC). Another policy-recommendation is to make sure that monopolies are not created, which means that rivalry and competition needs to be stimulated, which means, creating a conducive market space. This very much corresponds with encouraging open innovation and deployment models where the combination of best ideas and capabilities like time to market prevail instead of just the capacity to "invent and store". This could be further enhanced by limiting periods that companies can keep inventions off the market. Several options to achieve this have been suggested in this article. Some consideration for the interests of large companies will be needed, but focusing on the needs of society should dominate. This will guide the effectiveness of the companies as well.

Additional to somehow facilitating (several of the) options that were discussed above, governments can take on even more active roles regarding targeted technology development. Especially when public goods are concerned they can buy off IPRs (e.g., Dixon and Grenbalgh, 2002), thereby making it easier for companies to lower their prices. They could also buy a number of non-exclusive licenses and give these to producers in developing countries (thereby also creating employment, which arguably is a cheaper option for international development than the traditional form of development aid...). Also, many authors (e.g., Maskus, 2004) have asserted that the competitiveness of a country is largely determined by its structural capacities, not its (incidental) advantages achieved by inventions. In that sense, development aid should more be aimed at building these capacities, and governance, in addition to measures as discussed in this article. This is valid with regards to transfer to, as well as deployment in developing countries, but can also be seen broader (e.g., communities at home). Additionally, if a stronger enforcement of IPRs is desired, developing countries should get more assistance in ctually doing so, since it is widely acknolwedged that such enforcement is a costly affair, which should not go at a cost of more pressing national problems (Dixon and Greenbalgh, 2002).

Governments can also guarantee a certain demand which enables producers to make investments that can result in bigger scale-advantages (Oosterhuis and Faber, 2007). This enables producers to lower the price per product because earning back innovation costs can be divided over more products. Other measures include more generosity with subsidising, or otherwise supporting deployment of the "right" products (Yamaguchi, 2005). They can work together with Export Credit Agencies for this. Finally, they may be able to stimulate a more centralised availability of information regarding patents, together with the Patent offices.

But governments, both nationally and supra-nationally, have another role as well: they are a huge market force themselves (public procurement). They could use this position to favour companies that demonstrate a policy towards deployment that incorporates aspects (similar to those) described above. The government as conscious consumer does not require formal changes, only a political decision. This saves the trouble of going through a legislative (and enforcement) process, it simply confronts companies with the question: do you want us as your customer or not?

Conclusions[edit | edit source]

In the current system, the way inventions are treated and especially how they are used by companies leads to several problems. These include undesirable costs to society with regards to prices of new products, sub-optimal deployment of products and resources spent on protection, monitoring and enforcement. This paper suggests that emphasis should shift to learning, developing learning abilities and thinking about more contemporary business models. The most likely reason for the former phenomena is the fear of companies to lose their competitive advantage. However, a convincing case could be made for letting companies compete on the basis of actual organisational capacities instead of (coincidental) inventions they create. This does not ignore the potential value of having an IPR system, but rather recognises that the current system is not necessarily the alpha and omega of the contemporary creative business environment.

As has been argued above, companies and even governments have many options at their disposal to stimulate another mindset, without having to change the formal system. Open Innovation is a well known principle by now, so maybe it is time for Open Deployment. Governments can have an active role in this, especially by making public RD&D funding in areas of public use (clean technology, health care etc) subject to 'protect and share' agreements (Tomlinson et al, 2008). Arguably most of the options to achieve that depend on the vision of the parties in the chain. They can send off everyone in other directions than the one that is currently followed by reconsidering the need to patent, the need to patent "full blown" or not, and if they do patent the way they deal with licensing.

Companies, both the ones that outsource innovation and the ones that develop new inventions in-house, can reconsider how they want to best allocate their resources. They can focus on protecting ideas, fencing off competition and counting on high margins, or they can put their energy into stimulating creativity, acknowledging the value of learning opportunities and focusing on building capacities in their organisation. The latter option seems a healthy way forward and fully acknowledges that we live in a competitive world. It would be interesting to analyse how such a development would be influenced if non-profit organizations (are enabled to) become more active in this field. Some of the options described provide a first insight in how this could materialise. Discussion between the various stakeholders will be required to design new ways of working in such a way that the possible benefits can materialise as much as possible. Eventual success of course depends on the actual execution and currently unforeseen effects cannot be ruled out.

Notes[edit | edit source]

  1. http://creativecommons.org/about/
  2. In line with several other developments, such a system could initially be limited to technologies that clearly serve the common good and need wide dissemination. For many inventions this is not necessarily the case.
  3. The ITR-system could be enhanced by letting the deployment plan of the bidder be part of the transaction, see the main solution directions for more ideas on this option.
  4. This is quite a large conceptual step that needs to be thought through: are individual patents bought and sold, or can some kind of trading take place, indicating a dynamic positioning of patents compared to each other? In case of trading, it could work similar to a stock market where performance expectations largely determine the stock price.

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