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.