Further Thoughts on "IP Transactions: A Possible IP Course"

First a little bit of personal history. Before IP became my 24/7 preoccupation, during the days that Franz Beckenbauer, Johan Cruyff, and Watergate competed for headlines (aka the 1970s), this Kat chased another intellectual muse and pursued a doctoral program in education. A Ph.D. and assorted publications accompanied that quest, but what was most lasting is my interest in the way that educational courses and programs are structured. As Mrs Kat frequently observes, the "educator" in me has still occupies a prominent part of my professional psyche.

All of this was brought to bear in reading Jeremy's blog post and the ensuing comments of last Friday--"IP Transactions: A Possible IP Course" here. No better person to fashion such a course than the IPKat's friend, Mark Anderson, and we wish him the best of luck in this endeavour. And yet, I came away from the exchange with a certain feeling of unease. In a word, is it ultimately most productive to try and teach transactional principles to IP types, or rather to teach the rudiments of IP to transactional types? [Let's make a forced choice here, replying that both are equally desirable will not do.]

This Kat has done both. First there was a multi-year attempt to fashion a course on IP transactions for law students. He struggled with the course curriculum ("how much to emphasize the distinctive versus the holistic aspects of IP licenses, assignments and the like?"; "how much to don the cap of the would-be professor and how much to wear the cap of the dispenser of practical wisdom"; "how much to lecture and how much to actively engage the students"). Frustration dogged him throughout.

So this Kat jumped at the invitation to fashion a course for Economics students, with the charge from the dean of the faculty to impart in these students a working knowledge of IP principles. That seemed clear enough, but then he starting thinking--"how exactly is he going to know what IP principles are most relevant for Economic students?" For sure, he had the privilege of sitting at the feet of the iconic Richard Posner in trying to learn "law and economics", but the immediate task was quite different. What was of interest was not applying economic principles to the law, but applying legal principles and, in particular, IP principles, in order to promote better learning of Economics. The challenge was daunting and the results were mixed, say 7.5 out 10.

So this Kat moved further even afield, headlong into the world of MBA education. For five years now, his curricular work-in-progress has sought to provide a grounding in IP within the broader educational goals of managerial education. The result is a 20/80 split, providing enough IP to allow meaningful conversation, and then weaving IP issues into the context of the managerial and case study literature, garnished with the occasional guest lecturer from various segments of industry. For whatever reason, the balance between lectures and student engagement has been easier to manage, the integration between IP and business a more seamless enterprise, the overall experience much more satisfying pedagogically speaking.

The cynic might say that the reason for this rests in the nature of MBA education, the point often being made that it is a mile long and six inches deep. The whiff of alleged dilettantism is palpable. Such a claim misses the point. If asked whether to prefer transaction principles for IP types, or IP principles for transactional types, I prefer the latter. But maybe my experience is idiosyncratic. It will be interesting, therefore, to see how this proposed curricular initiative to blend IP and transactional law will work out.

Fear and Trembling: The MBA Slide on "Why Do People Patent?"

Few slides in my MBA course arouse as much interest as the slide--"Why do people invent and seek patent protection for their inventions?"--accompanied by a purposed list of reasons. More than once, but never often enough, either in the open classroom in after-class discussion, in response to the slides, a student will utter those major words --"I never thought about that before."

I suppose that one reason for the interest is the uniqueness of the question. After all, at least in the MBA context, we tend not to consider why people compose music or write stories (I can already see the brickbats being hurled my way from my copyright colleagues on this comment). As for trade marks, the issue is sufficiently different to beg comparison. At the most, we might get into a discussion of the different commercial and managerial functions that a trade mark might serve rather than a bald consideration of why people create and protect trade marks. Even so, the discussion tends to be less spirited than that which surround the issue of why do people patent and invent. If so, why?

The fact is that patents are central in the common perception of what constitutes valuable IP. Even if we succeed in disabusing students that IP is identical to patents, it cannot be denied that unless students make sense of patent protection, in their view, they will likely feel that the course has been a failure. As a result, as much as we might want, the degree to which we succeed in conveying the meaning embodies in that slide on "why people patent" goes a long way to determining how well we have done.

Against this backdrop, the challenge is to give focus to this question in light of the diversity of vantage points whence the question is posed. In a typical class, we will likely have a mix of inventors, R&D managers, product managers, company engineers, financial officers, human resource managers, financial loan officers and management consultants. Some of them may be in contact, sporadically or frequently, with IP-type lawyers and patent agents. Behind all of them is a phalanx of academic writing, legislative enactments and judicial pronouncements on the subject. Searching for a common denominator under such circumstances has a holy grail quality to it.

Only hubris grudgingly permits us to propose a list that might purport to account for at least many of the most important reasons why people are involved in invention. And yet, how do we find a way to provide a meaningful response to the question--"Why do people patent"?--ideally within a single slide, knowing that the students are expecting some kind of guidance on this issue. All of this uncertainty runs through my head when I stand before the audience. Should my answer differ depending upon the audience; should we focus more on that single slide, or should we use it simply as a catalyst for the sharing of student experience, even if the end game in giving free reign to such a discussion is uncertain?

With this in mind, permit me to propose the following partial list, not in order of importance, that formed the basis of my recent slide.

1. People invent and seek patent protection without any overarching strategy in mind.

2. Inventions are made and patents are registered at departmental level, but they are then overlooked due to corporate dysfunctionalities.

3. Patents are sought in response to employee compensation incentives.

4. Patents are a form of lottery, where there may be a hugh payoff for a small number of patents.

5. Patents are sought at the urging of investors, whether or not the patents are essential for the company.

6. Patents are used as a metric for evaluating the success of a department or division.
7. Patents are sought to send signals to consumers, competitors and investors about development directions of the company.

8. Patents are sought to send mis-signals and disinformation.

9. Patents are sought to for defensive purposes or to enable the company to seek effective cross-licences.

10. Patents are sought to protect the core technology of the company.

The moment of truth has arrived; I have reached the slide on "why do people patent". Will I succeed this time?