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The Operating System for the Knowledge Economy © 2004 Property Without Borders When TRIPS Falls IIMA September 29-30, 2005 Dr. David E. Martin, CEO M·CAM Fellow, Batten Institute, Darden Graduate School of Business Administration, University of Virginia
The Operating System for the Knowledge Economy © M·CAM Economic Review - Macro AgricultureManufacturingServices Knowledge Monopolies Individual value and control Land, seed, water, nutrient Value derived by caloric efficiencies Raw materials Production capacity Distribution capacity Education Dissemination enablement “Brand” Context Creativity Humanity Social implications Preference for self- sufficiency of community Forms basis for trade Management of supply of raw materials and markets for goods insures gain Creation of “expert” class Time and HR gating factors Ethnocentricity commensurate to desired market scope Institutions required Allocation of resource utilization Trade & Currency Banking/Factoring Contracts Education Standards Rules Accountability Treaties Futures markets
The Operating System for the Knowledge Economy © M·CAM Economic Development by… Monopoly & Price Control Non-core processes “outsourced” to low cost centers Low cost centers build excess capacity (production & knowledge) Commodity Dynamics take over Obsolescence and quality deficiency leads to innovation or invention Price constriction leads to degradation in perceived quality or relevance Economic Equator
The Operating System for the Knowledge Economy © M·CAM Development Paradox ConquestConquest Flag = Rights ExplorationExploration Own what you see PioneeringPioneering Own what you exploit HomesteadingHomesteading Defend what you own Land GrantLand Grant Own by decree Municipal UseMunicipal Use Use under authorization Ignorance is desirableIgnorance is desirable –Ownership by the claimant disregarding others Ignorance is desirableIgnorance is desirable –Selective visibility leads to flawed context Ignorance is desirableIgnorance is desirable –Failure to value full array of opportunities Ignorance is necessaryIgnorance is necessary –Authorizer biases for empowered interest Ignorance is necessaryIgnorance is necessary –Empowered interest determines rules for perpetuation Ignorance is necessaryIgnorance is necessary –Only those who mimic can co-exist
The Operating System for the Knowledge Economy © M·CAM What is a Patent? Invention, Innovation, Incrementalism “the right to exclude others from making, using, offering for sale, or selling” the invention“the right to exclude others from making, using, offering for sale, or selling” the invention What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
The Operating System for the Knowledge Economy © M·CAM First Principles Property is not only defined what you have but by dependencies and interdependencies held by othersProperty is not only defined what you have but by dependencies and interdependencies held by others Adverse rights can create “negative assets” where risks outweigh benefitsAdverse rights can create “negative assets” where risks outweigh benefits Property derived from social contract must not be breached by applicants or granting agenciesProperty derived from social contract must not be breached by applicants or granting agencies Prior Art Yours You Competitor Partner Public Domain (Publici juris) Uncited Dependency Cited Art Partner
The Operating System for the Knowledge Economy © M·CAM Critical Dependencies - Title Vs. Ineffective, cumbersome, process that fails to provide any market visibility
The Operating System for the Knowledge Economy © M·CAM Uniqueness Assessment Application pendency periods for all cited and citing art Innovation density and antiquation Uncited patents with claim redundancy (purple bars); Unconsidered concurrent patents (green bars); and, Unciting subsequent art (orange bars).
The Operating System for the Knowledge Economy © M·CAM Critical Dependencies “Blind Risk” Exposure Known Obsolescence Rate Terminal Risk
The Operating System for the Knowledge Economy © M·CAM How the “West” won??? What you don’t know not only hurts you but also robs others of vital, life-saving interventions…and robs others of viable economic development opportunities that could build economiesWhat you don’t know not only hurts you but also robs others of vital, life-saving interventions…and robs others of viable economic development opportunities that could build economies
The Operating System for the Knowledge Economy © M·CAM Toxic Challenges Emerging technologies are inter-disciplinaryEmerging technologies are inter-disciplinary –Patent offices are inadequately informed to examine and classify patents –Patent classification and search logic misses up to 80% of relevant documents –Conventional approaches to due diligence are prone to error Emerging technologies have basic science and applied science dependenciesEmerging technologies have basic science and applied science dependencies –Many of these may be owned by, or anticipated in, existing patent holdings –Patent examiners have allowed over-reaching claims
The Operating System for the Knowledge Economy © M·CAM Ethical Issues - Transparency
The Operating System for the Knowledge Economy © M·CAM Innovation to what end?
The Operating System for the Knowledge Economy © M·CAM Detection to Therapy Trends Toxin detection based patentsToxin detection based patents –Disclosed in 15,056 patents and applications Granted claims on general toxin detection in 209 patentsGranted claims on general toxin detection in 209 patents Activity steadily growing since 1970’sActivity steadily growing since 1970’s Over 50% of global “innovation” in pending applicationsOver 50% of global “innovation” in pending applications Toxin therapeutic use based patentsToxin therapeutic use based patents –Disclosed in 14,577 patents and applications Granted claims on general therapeutic applications in 202 patentsGranted claims on general therapeutic applications in 202 patents Over 75% of patents and applications filed since 2000Over 75% of patents and applications filed since 2000 Over 60% of global “innovation” in pending applicationsOver 60% of global “innovation” in pending applications
The Operating System for the Knowledge Economy © M·CAM Event Driven Paradox Anthrax Toxin innovation frequently event drivenToxin innovation frequently event driven –Challenges presumption of “invention” ex nihilo Public interest/funding also event drivenPublic interest/funding also event driven Understanding “proprietary” positions quite difficultUnderstanding “proprietary” positions quite difficult
The Operating System for the Knowledge Economy © M·CAM International Uniform Standards for IPR Accountability International Uniform Standards for IPR Accountability 1. 1.Society benefits from the creation of novel solutions to human challenges. In exchange for sharing the enablement of such creations with all society, those who discover and diligently pursue commercial or non-commercial efforts to distribute these solutions should enjoy a limited time to benefit from them as they see fit. 2. 2.All persons or enterprises seeking monopoly intellectual property rights are under an ethical duty to perform exhaustive reviews to establish invention, not only at the time of invention but throughout the limited monopoly period. In the event that such reviews uncover evidence of third party precedent, immediate cessation of monopoly enforcement should occur. 3. 3.All national interests who grant intellectual property rights, resulting in the creation of commerce within their borders, should vigorously defend such rights against foreign abuse. 4. 4.All holders of intellectual property rights who seek public or private financing should make regular disclosures of their property holdings and known, or afterward discovered impairments thereto.
The Operating System for the Knowledge Economy © M·CAM International Uniform Standards for IPR Accountability 5. 5.All public institutions who grant, or professional interests that assist in the management of, intellectual property rights should conduct regular reviews of their own business practices to assess them for potential infringement on the rights of others and, when discovered, should immediately remedy the same through cessation of activity or equitable royalty allotment. 6. 6.Due diligence, valuation, and impairment assessment must include a review of: IPR dependencies which are needed to practice the invention; concurrent filings; and, rights granted subsequently that may curtail the commercial opportunities afforded by the granted rights. 7. 7.In a world of commerce without borders, no national interest should offer preferential treatment for the review of inventiveness to knowledge contained solely within its borders. 8. 8.Intellectual property monopoly rights are limited and should, in no instance, take precedence over human life and the protection thereof. As society is the ultimate beneficiary of publicly granted monopolies, it should insist on the suspension thereof when loss of human life is the consequence for their enforcement.
The Operating System for the Knowledge Economy © M·CAM Can a proprietary opportunity be created in light of previous rights? Can a proprietary opportunity be created in light of previous rights? Defend or Enforce What is anticipated between detection and therapeutic innovation? Defend or Enforce What is anticipated between detection and therapeutic innovation? Maintain or Abandon Securities, Trade Commercial market and Industrial development Securities, Trade Commercial market and Industrial development
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