Balkinization: Lingering Thoughts About the "Innovation Law Beyond IP" Conference

Lingering Thoughts About the "Innovation Law Beyond IP" Conference

Guest Blogger

Sean O'Connor

I was fortunate to be a commentator at the recent “Innovation Law Beyond IP” conference hosted by the Information and Society Project at Yale Law School. My thanks to the organizers for putting together such an impressive roster of papers and excellent event!

The conference theme is an important one as IP is only one legal mechanism to foster innovation. Most of the presentations, naturally, focused on other legal tools.

But what we mean by “IP” can often muddy the discussion. Too often “IP” becomes reduced to “patents.” For example, outside of this conference, conversations about technology transfer and commercialization amongst “pro” or “maximalist” IP experts are frequently dominated by those who want to simply count patents as the measure of strategy and success. Patents are the “important” IP and everything else is merely ancillary. This obscures the important role of copyright, trade secrets, and trade marks in commercialization--even as these discussants use the generic term “IP”.

The reductionist tendency seemed to be used for opposite purposes by some IP “minimalists” at the Innovation Beyond IP conference. Where evidence that patents did not play a role in some innovation niche was found, a generalization that “IP” was not important in that niche often followed. Even speakers who were careful in the details of their papers to note that other types of appropriation mechanisms had been used (including other forms of IP), seemed tempted to suggest that “IP” was therefore not important. It is of course true that if no form of IP was used as an appropriation mechanism then it is entirely accurate to say IP was not important for that innovation.

The key point is that in many areas of innovation some form of legally enforceable appropriation is important for innovators (or their investors). This is not so much for the initial creation, but for the subsequent efforts to put the innovation into a developed form that can—and will—be distributed in some fashion. Think of this as a hybrid of disclosure and commercialization theories of IP (and other innovation appropriation mechanisms). Innovators, entrepreneurs, and investors do not care so much about what form of appropriation is used, so long as there is some way to control or profit from the innovation. Thus, to show that one form (e.g. patents) was not used in a certain situation does not tell us much about innovation law generally. There will, of course, be those who distribute their innovations—even in a highly polished form—without seeking to appropriate any legal or economic value. But many examples proposed by IP minimalists at this conference and elsewhere do not truly fit into this category. Instead, the field the innovator worked in allowed for effective use of alternate appropriation mechanisms (sometimes simply including other forms of IP).

Thus, we must remember that just as there is “innovation beyond IP,” there is also “appropriation beyond IP.” Equally important, there is “IP beyond patents.” Reductionism by both maximalists and minimalists is unhelpful for a full and honest exploration of the legal mechanisms that help or hinder innovation.

Sean O'Conner is a professor of law at the University of Washington. He can be reached at soconnor at uw.edu.

Posted 1:52 PM by Guest Blogger [link]