Jeremy Phillips' words of warning- and some further thoughts

Jeremy Phillips concluded his valedictory presentation, as the concluding part of the 10th anniversary JIPLP program, with a word of caution about the future of IP. He pointed to three vital constituencies, the financial community, the media and the youth, in all of which IP is either poorly understood or simply disregarded. The financial community has a woefully inadequate comprehension of IP while few journals devote any meaningful attention to the area (Jeremy pointed to Managing Intellectual Property and Intellectual Asset Magazine as rare exceptions).

The media engages in excessive coverage of patent trolls and the copyright in selfies taken by a monkey rather than devoting sustained and robust treatment of IP issues. As for the state of IP with the youth, Jeremy brought by way of example Wallace and Gromit and the trivializing of innovation and creativity. This Kat would suggest that there is a fourth constituency that poses a challenge for IP, namely the treatment of IP within the university. Because the university is the link between Jeremy’s three other constituencies, since it is the place that goes about educating young minds who then venture out into the workplace, the state of IP in the university bears close attention. In so doing, there are good reasons for concern.

First, there is the state of IP in law schools. Focusing on the U.S., it appears to this Kat that the general view within the legal Academy is that there is “too much” IP protection, with the result that what is called a “low-protectionist” orientation to IP has taken root. Appealing principally to a call to strengthen the public’s right at the expense of the IP rightsholder, the low protectionist position has the effect of diminishing IP’s sheen as a factor for doing good. It is difficult to imagine that a young legal scholar seeking tenure will focus his research on showing that there is not enough IP protection. As in any other field of discourse, when diversity of the discussion diminishes, quality diminishes as well.

Second, from the vantage of economics, there is increasing skepticism that IP protection is conducive in enhancing innovation. No one challenges that innovation is a factor for doing good, the only issue being how we can best bring it about. The question then becomes whether IP rights contribute to innovation. Here, as well, it seems that the surest way to attract attention is to make the academic argument against IP as a force in supporting innovation. One need only think of the writings of Professors Michele Boldrin and David Levine and the increasing attention that they have received in advancing “the case against patents.”

Third, most MBA programs are characterized by neglect in making IP a material component of their programs. With a few exceptions, IP is not part of the mainline curriculum of most such programs. When IP is offered, often the instructor is an adjunct lecturer rather than a full-time faculty member. This Kat recognizes that there is a unique challenge in finding an effective way in presenting IP in a way that highlights its role in management decisions rather than merely as a form of legal protection. In particular, there is an absence of good case studies for use in presenting IP in the MBA context. But this should be a call for increased efforts in this regard. Instead, making a research career on the role of IP in business management does not appear to be the way to tenure and success for a prospective business school academic.

This Kat has frequently observed that IP went from post-war irrelevance, bordering on hostility, to a “perfect storm” moment in the 1980’s, where it seemed that IP could do no wrong. Some erosion from those giddy days was to be anticipated. But, as Jeremy reminded us in his final words, while cyclical advances and retreats can be expected, we are ultimately responsible for the state of IP within the broader community. That responsibility extends from doing a better job with the financial sector, the media and youth to contending with the erosion of IP within key segments of the university.

Jeremy Phillips' words of warning- and some further thoughts Jeremy Phillips' words of warning- and some further thoughts Reviewed by Neil Wilkof on Monday, November 30, 2015 Rating: 5


  1. Great parting shot.

    Some of us have long vocalized the very same concerns on prominent US patent blogs.

  2. Hugo'sBoot

    It's a hostility that appears to infect at least some at the EPO. When in response to a comment about it being the EPO's job to protect the public, it was pointed out that according to Article 4 EPC it is the EPO's job to grant European patents, one of the fraternity described that as a naïve reading of the relevant Article and spouted a load of patronising stuff about prior art etc as if those of us on here wouldn't be aware of the all those barriers to grant provided for in the EPC.

  3. Living in Germany, where refuges for refugees are subject to arson attacks, I regret the mindset displayed by commentators who dub themselves Somebody or Other's "Boot" and who, looking outwards from themselves, are quick to detect "hostility" in the minds of public servants.

    In the world of IPR there are zealous and clever lawyers who are assiduous in pushing the envelope of what can be patented, into areas not fit for patenting. Good so. Society thrives on creativity. But for stability in our society, every force should be opposed by an equal and opposite counter-force.

    So there needs to be a judiciary (as in England) which is sensitive to such "creep" and has enough intelligence, public spiritedness and chutzpah to resist it. We want the early demise of bad patents, but quick and effective enforcement of good patents. We want an EPC Art 69 world, of a fair scope of protection but without any loss of legal certainty. Easy to say, but very hard to do, for one thing because of media receptiveness to the howls of protest from those zealous lawyers, their hob-nailed, steel-capped, big swinging boots, and their "only business" clients, whether Investors looking to make a pile of money out of one of those "Do it with a computer" business method claims, or Big Corp looking for a killer IPR app.

    And amongst all of that noise, the basic premise of the patents system, that good patents do indeed Promote the Progress in the Useful Arts, to the great benefit of mankind, tends to get more and more overlooked.

  4. Hugo'sBoot

    Oh dear MaxDrei, you really are reading too much into the name. It came about simply because I was casting about for a name when making a post and had just watched the French national side play on TV. I was thinking of Hugo Lloris' kicking at the time, hence Hugo'sBoot. The name is as insignificant as that.

    I think I have seen enough of your posting and the likes of the Examiner I referred to in my earlier post to conclude that posting on here is something I should skip as I am likely to find more sense of a football messageboard. I will revert to being a reader only.

    I will just say this before leaving you to your pompous musings. I do not tend to represent the sort of clients you appear to be referring to. The majority of my clients are small businesses of private individuals and I rather suspect I make less money than the EPO Examiners who post on here (my choice so I have no complaints about that). I would also point out that as someone who has more than once been made redundant and as a former union member dating back to my days working on the shopfloor, I have experienced some of the joys of 'management' and am a long way from being unsympathetic to the position of the EPO Examining corp. Still how would you know that before rushing to judgement.

  5. Hugo, I just want to say that when in a blog thread I reply to a comment, I'm aiming not just at the one commenter but, rather, everybody that follows the blog. There are some readers here who passionately advocate patents, especially for business methods, unconstrained by any "technology" test of patentability. There are others who suspect that patents impede rather than promote progress, even in pharmaceuticals. I'm in the middle somewhere, but I'm uncomfortable with "absolut Stoffschutz". I think pharma patents should be purpose-limited. See the next IPKat posting on the Canadian Report.

    Sorry if I come across as pompous. I will keep that in mind.


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