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.

© 2004

The Operating System for the Knowledge EconomyThe Operating System for the Knowledge Economy

Property Without Borders Property Without Borders When TRIPS FallsWhen TRIPS Falls

IIMAIIMA

September 29-30, 2005September 29-30, 2005Dr. David E. Martin, CEO M·CAM Dr. David E. Martin, CEO M·CAM

Fellow, Batten Institute, Darden Graduate School of Fellow, Batten Institute, Darden Graduate School of Business Administration, University of VirginiaBusiness Administration, University of Virginia

© M·CAM The Operating System for the Knowledge EconomyThe Operating System for the Knowledge Economy

Economic Review - MacroEconomic Review - Macro

AgricultureAgriculture ManufacturingManufacturing ServicesServices Knowledge Knowledge MonopoliesMonopolies

Individual Individual value and value and

controlcontrol

•Land, seed, water, nutrient•Value derived by caloric efficiencies

•Raw materials•Production capacity•Distribution capacity

•Education•Dissemination enablement•“Brand”

•Context•Creativity•Humanity

Social Social implicationsimplications

•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 Institutions requiredrequired

•Allocation of resource utilization

•Trade & Currency•Banking/Factoring•Contracts

•Education•Standards•Rules

•Accountability•Treaties•Futures markets


Economic Development by…Economic Development by…

Monopoly & Price

Control

Non-core processes Non-core processes “outsourced” to low “outsourced” to low

cost centerscost centers

Low cost centers Low cost centers build excess capacity build excess capacity

(production & (production & knowledge)knowledge)

Commodity

Dynamics take over

Obsolescence and Obsolescence and quality deficiency quality deficiency

leads to innovation or leads to innovation or inventioninvention

Price constriction Price constriction leads to degradation leads to degradation in perceived quality in perceived quality

or relevanceor relevance

Economic EquatorEconomic Equator


Development ParadoxDevelopment Paradox

• ConquestConquest Flag = RightsFlag = Rights

• ExplorationExploration Own what you seeOwn what you see

• PioneeringPioneering Own what you exploitOwn what you exploit

• HomesteadingHomesteading Defend what you ownDefend what you own

• Land GrantLand Grant Own by decreeOwn by decree

• Municipal UseMunicipal Use Use under authorizationUse under authorization

• Ignorance is desirableIgnorance is desirable– Ownership by the claimant disregarding othersOwnership by the claimant disregarding others

• Ignorance is desirableIgnorance is desirable– Selective visibility leads to flawed contextSelective visibility leads to flawed context

• Ignorance is desirableIgnorance is desirable– Failure to value full array of opportunitiesFailure to value full array of opportunities

• Ignorance is necessaryIgnorance is necessary– Authorizer biases for empowered interest Authorizer biases for empowered interest

• Ignorance is necessaryIgnorance is necessary– Empowered interest determines rules for perpetuationEmpowered interest determines rules for perpetuation

• Ignorance is necessaryIgnorance is necessary– Only those who mimic can co-existOnly those who mimic can co-exist


What is a Patent?What is a Patent?Invention, Innovation, IncrementalismInvention, Innovation, Incrementalism

• ““the right to exclude others from the right to exclude others from making, using, offering for sale, making, using, offering for sale, or selling” the inventionor selling” the invention

• What is granted is What is granted is notnot the the right to make, use, offer for right to make, use, offer for sale, sell or import, but the sale, sell or import, but the right to excluderight to exclude others from others from making, using, offering for making, using, offering for sale, selling or importing the sale, selling or importing the inventioninvention. .


First PrinciplesFirst Principles

• Property is not only defined Property is not only defined what you have but by what you have but by dependencies and dependencies and interdependencies held by interdependencies held by othersothers

• Adverse rights can create Adverse rights can create “negative assets” where “negative assets” where risks outweigh benefitsrisks outweigh benefits

• Property derived from social Property derived from social contract must not be contract must not be breached by applicants or breached by applicants or granting agenciesgranting agencies

Prior Prior ArtArt

Yours

You

Co

mp

etit

Co

mp

etit

or

or

Partner

Pu

blic D

om

ain (P

ub

lici juris)

Un

cited

D

epen

den

cy

Cite

d

Cite

d

Art

Art

Partner


Critical Dependencies - TitleCritical Dependencies - Title

Vs.

Ineffective, cumbersome, process that fails to provide any market visibility


Uniqueness AssessmentUniqueness 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).


Critical DependenciesCritical Dependencies

“Blind Risk” Exposure

Known Obsolescence Rate

Terminal Risk


How the “West” won???How the “West” won???

• What you don’t know not only hurts you but also robs others of vital, What you don’t know not only hurts you but also robs others of vital, life-saving interventions…and robs others of viable economic life-saving interventions…and robs others of viable economic development opportunities that could build economiesdevelopment opportunities that could build economies


Toxic ChallengesToxic Challenges

• Emerging technologies are inter-disciplinaryEmerging technologies are inter-disciplinary– Patent offices are inadequately informed to examine and classify Patent offices are inadequately informed to examine and classify

patentspatents– Patent classification and search logic misses up to 80% of relevant Patent classification and search logic misses up to 80% of relevant

documentsdocuments– Conventional approaches to due diligence are prone to errorConventional approaches to due diligence are prone to error

• Emerging technologies have basic science Emerging technologies have basic science and applied science dependenciesand applied science dependencies– Many of these may be owned by, or anticipated in, existing patent Many of these may be owned by, or anticipated in, existing patent

holdingsholdings– Patent examiners have allowed over-reaching claimsPatent examiners have allowed over-reaching claims


Ethical Issues - TransparencyEthical Issues - Transparency


Innovation to what end?Innovation to what end?


Detection to Therapy TrendsDetection to Therapy Trends

• Toxin Toxin detectiondetection based patents based patents– Disclosed in 15,056 patents and applicationsDisclosed 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 Toxin therapeutictherapeutic use based patents use based patents– Disclosed in 14,577 patents and applicationsDisclosed in 14,577 patents and applications

• Granted claims on general therapeutic applications in Granted claims on general therapeutic applications in 202 patents202 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


Event Driven ParadoxEvent Driven ParadoxAnthraxAnthrax

• Toxin innovation Toxin innovation frequently event drivenfrequently event driven– Challenges presumption Challenges presumption

of “invention” of “invention” ex nihiloex nihilo

• Public interest/funding Public interest/funding also event drivenalso event driven

• Understanding Understanding “proprietary” positions “proprietary” positions quite difficultquite difficult 0

10

20

30

40

50

60

70

80

90

Pre Sept 2001 Post Sept 2001

Granted Patents Published Applications


International Uniform Standards for International Uniform Standards for IPR AccountabilityIPR Accountability

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.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.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.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.


International Uniform Standards for International Uniform Standards for IPR AccountabilityIPR Accountability

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.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. 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. 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.


Can a proprietary opportunityCan a proprietary opportunitybe created in light of previousbe created in light of previousrights?rights?

Can a proprietary opportunityCan a proprietary opportunitybe created in light of previousbe created in light of previousrights?rights?

Defend or EnforceDefend or EnforceWhat is anticipatedWhat is anticipatedbetween detection between detection

and therapeutic innovation?and therapeutic innovation?

Defend or EnforceDefend or EnforceWhat is anticipatedWhat is anticipatedbetween detection between detection

and therapeutic innovation?and therapeutic innovation?

Maintain or AbandonMaintain or AbandonMaintain or AbandonMaintain or Abandon

Securities, TradeSecurities, TradeCommercial market andCommercial market and

Industrial developmentIndustrial development

Securities, TradeSecurities, TradeCommercial market andCommercial market and

Industrial developmentIndustrial development


““GIVE ME A PLACE TO STANDGIVE ME A PLACE TO STAND

AND I WILL MOVE THE EARTH”AND I WILL MOVE THE EARTH” - - ArchimedesArchimedes

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.

Documents

authorization ignorance

perpetuation ignorance

flawed context ignorance

ceo mcam fellow

invention price constriction

university of virginia

control land

desirable ownership