Intellectual Property Rights in the 21st Century - a
Transcription
Intellectual Property Rights in the 21st Century - a
Intellectual Property Rights in the 21st Century - a Regulatory Tool to Promote Innovation? INSEAD Innovation Breakfast Series Dubai, 26 May 2015 Dr. Nikolaus Thumm Senior Fellow European Commission Institute for Prospective Technological Studies Presentation outline I. II. III. IV. V. VI. VII. Introduction Open innovation versus proprietary knowledge Competitiveness Economic value and IP strategies Intellectual property markets Technology transfer Intellectual property in the 21st century 2 Overview of intellectual property Legal right What for? How? Patents New inventions Application and examination Copyright Original creative or artistic forms Exists automatically Trade marks Distinctive identification of products or services Use and/or registration Registered designs External appearance Registration* Trade secrets Valuable information not known to the public Reasonable efforts to keep secret 3 Some IP found in a mobile phone Trade marks: • Made by "Nokia" • Product "N95" • Software "Symbian", "Java" Patents: • Data-processing methods • Semiconductor circuits • Chemical compounds •… Trade secrets: ? Copyrights: • Software code • Instruction manual • Ringtone •… Designs (some of them registered): • Form of overall phone • Arrangement of buttons in oval shape • Three-dimensional wave form of buttons •… © Nokia 4 Examples of valuable intellectual property Optional Harry Potter Coca-Cola® Apple® iPod® Instant camera DNA copying process 5 The "social contract" implicit in the patent system Reveal invention Get exclusivity … so that others can learn from it and improve upon it! 6 Patents in nutshell – basic principles • Patents are not secrets, they are published • Worldwide patents do not exist • International applications do exist (PCT applications) • Patents are bound to a territory (mostly countries) • Life of a patent: maximum 20 years of protection • Patents can be granted for new and inventive technology • Improvements (by others) on existing patents is possible • Patents can be owned by multiple applicants in dif. countries • Patents are classified according to technologies 7 II. Open innovation versus proprietary knowledge 8 “Open innovation is the use of purposive inflows and outflows of knowledge to accelerate internal innovation, and expand the markets for external use of innovation, respectively. [This paradigm] assumes that firms can and should use external ideas as well as internal ideas, and internal and external paths to market, as they look to advance their technology.” Henry Chesbrough, "Open Innovation: Researching a New Paradigm", 2006 Source: Chesbrough, 2003 9 More Examples for "Open Innovation" LEGO Mindstorms (software/robotics): open source based on copyright strong reliance on trademark BiOS initiative (Biotechnology Open Source): open source based on patents and/or MTAs BMW Customer Innovation Lab (service ideas): all rights transferred to BMW 10 Open Innovation and Intellectual Misconceptions: Property Open innovation = Open source Open innovation = public domain Open innovation = no Intellectual Property Reality: Open source is one mode of open innovation Open innovation results can be protected or released into the public domain Open innovation needs a functioning IP system and an effective market of IP rights "The effective management of IP is crucial, not only in identifying useful external knowledge but especially to capture the value of a firm’s own IP rights." (OECD Report 2008 "Open innovation in global networks") "From Intellectual property to intellectual partnering" (Chesbrough, 2006) 11 III. 'Competitiveness' 12 Total European patent filings +5,2% 1 1 +2,8% Direct European filings under the EPC and International filings under the PCT 13 Technical fields with the most applications (2012) 1 2 1 2 Classified according to the IPC and technology concordance table compiled by the Fraunhofer ISI for WIPO Based on European patent applications filed with the EPO 14 European Patent Office top applicants 2013 15 European Patent Office: Top patentees 2014 Analysis based on granted patents published in 2014. Rank 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Company SIEMENS AG SAMSUNG GROUP ROBERT BOSCH GMBH LG GROUP L M ERICSSON AB BASF SE HUAWEI TECHNOLOGIES CO. LTD. PANASONIC CORPORATION GENERAL ELECTRIC COMPANY QUALCOMM, INC. KONINKLIJKE PHILIPS N.V. JOHNSON & JOHNSON SONY CORPORATION CANON INC. AIRBUS GROUP Grants 757 712 633 630 574 543 493 447 434 427 409 392 380 368 364 16 Main drivers: Filings from Japan/Asia EPO Filings: Geographical Origin (2002-2011) (Average Annual Growth) 250 000 6% 7% Others (5%) 5% 200 000 CN (35%) 24% KR (16%) 150 000 19% 100 000 US (2%) JP (7%) 50 000 38% EPC (3%) 0 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 17 Patent Filings World Wide (Les Echos 11 avril 2013) 18 IV. Economic value and IP strategies 19 ‚Intellectual property rights intensive industries: contribution to economic performance and employment in the European Union´ European Patent Office (EPO) and Office for Harmonization in the Internal Market (OHIM) 2013 www.epo.org www.oami.europa.eu 20 E.g. patent intensive industries 21 E.g. copyright intensive industries 22 E.g. trademark intensive industries 23 ‚Intellectual property rights intensive industries: contribution to economic performance and employment in the European Union´ (EPO/OHIM 2013): 24 Importance of patenting Increasing economic importance of industrial property (IP) • Increasing integration of IP in top-level business strategy, especially in high-tech industry • Increasing strategic use of IP information (technology, market and technology watch) • Increasing exploitation of IP value as additional source of revenue and benefits (licensing, patent auctions etc.) • Upcoming legally binding rules to report on IP (e.g. accounting rules) • IP enforcement (litigation, etc.) with increasing economic impact on companies (revenue, profitability, stock performance, etc.) 25 % % Gesamt-Portfoliowert, Erfassterof portfolio value, Share The value of patents 100 90 80 70 60 50 40 30 20 10 0 0 10 20 30 40 50 60 70 80 90 100 CumulatedKum. share of der patents, ordered patent Anteil Patente, geordnet by nach Wert value 5% really matter 15% matter a bit 80% are “irrelevant“ 26 Data for about 7000 EP-patents. Source: European research project ‚PATVAL‘. Source: PATVAL II survey, Torisi et. al 2015 27 V. Intellectual property markets 28 Economic Theory of Licensing Licensing ... • increases exploitation of technology, • increases diffusion of technology, • facilitates vertical specialisation and division of tasks, • but may reduce competition and innovation. Firms license in order to ... • leverage economic revenue from unused inventions, • establish technologies as de facto standard, • influence competition and stimulate market demand, • expand the range of uses (markets), • exchange knowledge (cross licensing), • solve conflicts with intellectual property rights. 29 Licensing (EPO/OECD survey 2007) • 20% of European patent owners license out • Firm size: licensing activity U-shaped • Companies from Nordic countries and UK license out more Motives for licensing out patents: 1. Earning revenue 2. Entering into cross licensing deals 3. Stop others from infringing your patents 4. Sharing technology with other companies Obstacles to licensing: • 24% of patenting firms are willing to but not able to license • Difficulty in finding licensing partners 30 Source: PATVAL II survey, Torisi et. al 2015 31 European Commission expert group on patent aggregation (2015)* Mandate: "Explore the need for and identify the feasible options for EU level action to foster aggregation of patents that could be (partly) funded or in other ways promoted at the EU level." Specific tasks: explore the benefits, costs and risks of… … a potential creation of a partly EU funded IP financial facility, … fostering the formation of patent pools, … fostering the formation of other forms of IP aggregation. *http://ec.europa.eu/research/innovation-union/pdf/expertgroups/report_of_the_expert_group_on_patent_aggregation__2015.pdf 32 VI. International Technology Transfer 33 'How can licensing facilitate diffusion and implementation of renewables?' Technology Transfer via: •Imitation •Trade in goods and services •Foreign direct investment •Joint venture •Cross-border movement of personnel •Licensing 34 Patent rights and Technology Transfer Important factors for technology transfer • access to real know-how from source companies (often "Trade secrets") • suitably skilled staff • scientific infrastructure • favourable market conditions • finance 35 Example: patenting trends solar photo voltaic technologies * Patenting between source country (“inventor country”) and countries in which IP protection is sought. Source: UNEP/EPO/ICTSD 2010: Patents and clean energy – bridging the gap between evidence and policy 36 Developing countries important for IP related activities India; 17% China; 25% Brazil; 12% Russia; 10% Other; 25% Malaysia; 4% Thailand; 4% South Africa; 3% Source: UNEP/EPO/ICTSD 2010: Patents and clean energy – bridging the gap between evidence and policy 37 Conditions for licensing or cooperation with DCs 'When your organization is making a decision whether or not to enter into a licensing or cooperative development agreement with a party in a developing country, to what extent would the following factors positively affect your assessment?' 50% 45% 40% Not a factor A basic precondition Significantly attractive condition Compelling reason 44% 42% 37% 37% 35% 28% 29% 30% 25% 20% 18% 16% 13% 15% 27% 26% 25% 13% 14% 15% 16% 10% 5% 0% Protection of intellectual property rights Scientific capabilities, infrastructure and human capital Favourable market conditions Favourable investment climate Source: UNEP/EPO/ICTSD 2010: Patents and clean energy – bridging the gap between evidence and 38 policy Co-invention patterns – a statistical analysis Co-invention indication for international cooperation : – 12 % of mitigation technologies worldwide – only 9 % of all inventions worldwide – 23% of African mitigation inventions (with OECD countries) • Almost no intra-African co-invention • Africa’s most frequent partners – US, UK, Belgium, Germany, Sweden, France and Canada • Adaptation technologies – little co-invention – mostly in desalination – primarily with South Africa\ Source: UNEP/EPO 2013: Patents and clean energy in Africa 39 Conclusions (Africa) • Africa has vast untapped potential for clean energy technologies • Patenting activity – less than 1% of CET patents filed in Africa – focus on climate mitigation technologies (much less adaptation technologies) – inventive activity dominated by South Africa – foreign patenting mainly: OECD Countries (D, USA, F, UK ...), almost no BRIC • Rate of growth of patenting activity higher than world average • Rate of co-invention much higher than in the rest of the world • Little evidence of intra African co-invention and cross border patenting 40 VIII. Intellectual property in the 21st century? 41 ‘If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it’. (Fritz Machlup 1958) 42 Patents as a regulatory measure Welfare Protection Problem area? Too much protection? Feasible measures Not enough protection? 43 Challenges for IP Systems? • open, collaborative innovation asks for – easy access to IP – timely, simple procedures – high presumption of validity of IP rights • new business models focus on – branding – customer relation – first-mover-advantage – lock-in – combinations of open and proprietary models • new technologies/innovation processes might demand – alternative forms of protection (license of right, shorter/longer IP terms, sui generis systems) – enlarged public domain: e.g. for basic research tools, interoperability standards 44 What patent offices can do: – Increase transparency, reduce complexity and costs – Ensuring quality/validity of granted patents – Improving efficiency – Steering applicant's behaviour – SME and University support – Harmonisation of IP systems Sustainable situation for – Service innovations, – New business models, – Open innovation systems? 45 Example: Patent Quality Workshop: EPO Economic and Scientific Advisory Board 'A high quality patent (a) satisfies the legal patentability requirements at a given patent office, (b) it has been granted, and (c) is likely to withstand invalidity proceedings in court or before an administrative body' Improve patent quality: -prior art search and disclosure -abstracts/titles -non-patent literature -ownership re-assignments -translations -reporting of prior art by applicants (prior art repository) -opposition and re-examination -international harmonization and cooperation -code of conduct - ... 46 Example : Steer applicants behaviour Fees at EPO Filing (online) European search International search Renewal for European application (3rd year) Renewal for European application (10th year) Examination Opposition Appeal Further processing (late payment) Further processing (other) Claim fee (claim 16- 50) amount in EUR 115 1165 1875 445 1495 1555 745 1240 (50%) 240 225 47 TRADITIONAL FEE STRUCTURE: ACCUMULATED CASH FLOWS OVER PATENT LIFE TIME Filing fees €100 vs. Initial costs Examination fees & internal renewals €50 millions €0 1 2 3 4 -€50 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Internal renewal fees vs. Exam, Opposition, Appeal costs -€100 19 20 Final gap excluding Patent Inf. costs etc. -€150 -€200 Search fees vs. Search costs External renewal fees -€250 -€300 External renewal fees vs. Opposition and Appeal costs 48 Significance of small and medium sized enterprises (SMEs) 49 Example: Supporting SMEs and Universities No. of SMEs Policy ? Innocent non-users Professional users Knowledge about, use of IP protection 50 Example: Harmonisation; the Unitary Patent Same grant procedure as for classic European patent Appeal proceedings European patent application Filing and formalities examination Refusal or withdrawal of application Search report with preliminary opinion on patentability Substantive examination Limitation/ revocation/ opposition proceedings Grant of European patent At the request of the patent proprietor UNITARY PATENT for the territories of the 25 participating states The unitary patent replaces the individual effects of the European patent in the 25 participating states 51 The Unitary Patent: Advantages • For inventors – protection in one single step for the 25 states currently participating – significant cost savings (translation, validation, administration) – simplified validation procedure (instead of up to 25 different procedures) – simplified and more cost-efficient renewal procedure – increased legal certainty due to uniform litigation system • For Europe – optimal protection in the participating states as a whole – better framework conditions for innovative companies and organisations – simplified European protection mechanism for companies from outside Europe – improved competitiveness of the European patent system 52 53 Recent conference on patents in the European Digital Single Market: https://ec.europa.eu/jrc/en/event/conference/european-digital-single-market-role-patents 54 Thank you! 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