The simplest definition of innovation is the use of creativity to develop opportunities with value. More colloquially, it is said that those who do not innovate are destined to fail. So, it would not be strange to consider that even those of us who work in Intellectual Property and do not innovate, would be destined to the same end.
The knowledge economy: innovation
In today's economy, companies must find their new place in the knowledge economy, where innovation consists in obtaining benefits using the resources of knowledge and creativity.
Knowledge and creativity are the evolutionary engine of companies. When you aim at processes to work always the same, it is necessary for daily activities to be constant, mechanical, predictable and linear. However, to drive change, to innovate, we need human beings making use of all their intellectual and creative capacities to make decisions about the new way of managing the organization or to bring about new or improved products and services. Knowledge and creativity hold the key that opens the door to change: innovation comes from people. (Rubio, 2010, p .2). Open innovation implies not only access to numerous independent human resources, accessing the wisdom of the masses (Haller, 2011, p.103), but the possibility of collaborating with people of different disciplines and degrees of formation, enriching the process of innovation and the complexity of the relationships in that process.
The Oslo Manual defines "innovation" as "the introduction of a new, or significantly improved, product (good or service), a process, a new marketing method or a new organizational method, in internal practices of the company, the organization of the workplace or external relations "(OECD, 2005, p.56).
Innovation implies the invention of new products, processes and ways of doing things and their introduction to the market or marketing, diffusion or adoption (Mohnen and Hall, 2013, p.2). As noted by the World Intellectual Property Organization WIPO, innovation ranges from the stage of ideation and project formulation to the successful launch of a new or improved product in the market. (Kalanje, 2016, p.1).
The Design of innovation projects can be approached in different ways, usually applying variants of Cooper's "Stage-Gate" model, which is characterized by dividing the projects into stages separated by decision points that fulfill the function of gates, where decisions to continue / die are made. This model has been reformulated to a hybrid version, incorporating the agile methodology (Cooper, 2016, p.10) to adapt to the opportunities and challenges of digitalization. We can also see full versions of this, usually consisting of 5 stages, and abbreviated versions for smaller, more agile projects.
Intellectual Property in the frame of innovation: IP Thinking is born
Intellectual Property has become the main asset of the 21st century. Mark Getty refers to the enormous importance of oil in the industrialization of the 20th century, and adds: "Intellectual Property is the oil of the 21st century" (WIPO, 2014, page 14, WIPO, 2009, page 5).
In the current world of business, companies must design their intellectual property strategy in harmony with their business strategy, developing and applying intellectual property management according to their objectives, taking into account that intellectual property can be present in all processes that can generate value to the company (OMPI, 2014, page 15).
The IP ThinkingTM methodology accompanies innovation processes through their various stages, identifying the intellectual property aspects relevant to each gate, supporting and accompanying the continue/die decisions and that will facilitate the realistic definition and achievement of the objectives of protection, monetization, recognition and freedom of use of each project.
IP THINKING is the ideal partner of DESIGN THINKING. As a means to overcome mistakes of the past, when innovation processes led to the development of a product or service, ultimately adding design elements, which failed to meet the needs and expectations of the client, Design Thinking proposed incorporating the design based on the user's experience at the beginning of an innovation project. In terms of intellectual property, the problem is similar, whereby the innovation processes in their final stage are sent to the intellectual property advisor to obtain the legal, traditional, intellectual property titles: usually patents and trademarks. When the advisor issues an unfavorable report, he is seen as responsible for detracting value or even viability to the project, even sometimes he could be seen by researchers as slowing down innovation and demotivating the innovation team. These situations reinforce and perpetuate the behavior. Therefore, there is a need to understand that Intellectual Property should not be reduced to only a right represented in a legal title, to exclude third parties from its use; in this context IP Thinking was born, changing the focus of intellectual property and turning the intellectual property manager into an innovation manager and ally, a skilled member of innovation teams.
IP THINKING consists in incorporating intellectual property in the design of the strategy and the organizational management of companies, from the start of a business line, as well as of the innovation, research and commercial projects. That is to say, it consists of incorporating intellectual property management as the fundamental and differentiating base of a company in the market. For this reason, IP Thinking is a working philosophy which accompanies from the start of a project to the launch and commercialization, throughout all the stages, achieving an optimal protection of the resulting innovations, since it is able to detect intangibles throughout the development of each stage (ideation, product development, launch, etc.), establishes ownership and assesses contributions, as well as reducing the risks of infringement of third parties rights or redundant research.
Intellectual property, understood in a broad sense as "the unique creations of added value fruit of the human intellect, resulting from the ingenuity, creativity and inventive capacity of the human being" (Kalanje, 2016, p.2), must be conceived as a whole or package, which addresses various angles of innovation, and is complemented by contractual agreements. Confidentiality agreements, non-disclosure, transfer of rights, collaboration, co- ownership, use, licensing, transfer, among others, are contractual aspects that complement and are complemented by intellectual property.
IP Design: innovating Intellectual Property
Given the nature of the innovative activity that involves high costs of invention, high uncertainty, low marginal costs of reproduction and significant externalities, strategic innovation management generally contemplates the following mechanisms for capturing or appropriating the value generated by technological innovation: patents, confidentiality agreements, lead time, complementary assets such as manufacturing, sales or service capabilities (vertical integration). The effectiveness of each of these appropriation mechanisms depends on the particular characteristics of the technology, such as the general competitive environment, or the need for buyers or suppliers to make substantial investments for specific designs (Chesbrough, H, Vanhaverbeke W, and J West J., 2006, p.169).
With the passage of time, we will also see the birth and consolidation of new categories of intellectual property, or rights or mechanisms related to intellectual property, blurring the boundaries we know today.
Such was the case of Creative Commons, an organization dedicated to breaking the barriers that prevent people from sharing knowledge, which developed a regulatory framework that facilitates people to share and use knowledge and creativity. Without replacing the rules of copyright, they rely on them to establish a set of model agreements, rules of use and symbols, which provide authors with control over their copyright.
So, it is not enough to incorporate intellectual property in the design of innovation, it is necessary to design the intellectual property strategy for each company and project. Innovate the intellectual property strategy. And why not, innovate intellectual property, giving place to a new framework of policies and institutions. The great variety of situations that arise in the accelerated pace of innovation that we live, the challenges posed by open innovation, can't be framed within the limited options and static rules offered by the traditional intellectual property system. Law will adapt to reality, to the protection needs and challenges that we face, embracing new situations, although this adaptation may be delayed.
The design of innovation must include the relationships between the different actors involved in this process, such as the different areas within the same company, or the relations with the ecosystem in open innovation processes, in a way that is efficient and at the same time, provide the recognition and security that encourages interactions, especially in cases of open innovation, such as crowdsourcing, co-creation, but also in cases with less involvement outside the company. This leads us to appreciate, encourage and extract value from human knowledge and creativity in different ways, envision new possibilities, cultivating our own and authentic intellectual Property culture.
We design, therefore, the Intellectual Property strategy, without focusing on the object or title of intellectual property, but in the design process, based on the raison d'être of the company and accompanying the process of innovation design. The objective is not to obtain a patent, trademark or copyright per se, but to design an optimal intellectual property structure for the innovation of each company, identifying in advance the risks, internal and external, that could in the future hinder or prejudice their innovation processes, strengthening the key and distinctive elements of the company.
Sometimes these design processes will lead us to propose new categories of rights or new ways to transfer or monetize rights, what we call IP DESIGN. It allows us to visualize beyond the traditional patent systems to protect inventions, or brands to distinguish the distinctive signs of a company, copyright on software and creations, among others, and the mix of these. We will have new situations, such as inventions that are the result of the collaboration of many inventors, in different proportions and from different parts of the world. How will we regulate co-invention of the masses? There will be rights that arise from the agreement of the parties. How will we efficiently manage these rights? These and many other challenges will be presented along the way.
IP Management: the objective of IP Thinking
Apple's legal warning reads: "Apple's innovation is incorporated into its Intellectual Property." But its products have also impacted the way intellectual property is managed in the music industry, making it possible to download music on demand, or even enjoy it from the cloud, as music is consumed today through various applications and virtual shops. In our practice we frequently see situations in which institutions and companies design their own variants of intellectual property. From an institution that offers the recognition of certain rights over the contributions of project ideas, even though copyright and patents do not protect "project ideas", license agreements for access to traditional knowledge of indigenous communities, or delimitation of uses of mineral samples for patent applications, are designs of own intellectual property structures, contributing to innovation driven economic development.
The management of Intellectual Property is a very complex matter that requires knowledge of the field of intellectual property law, technology, economy and finance, empathy with the organizational culture of the company. To "Manage" is to actively reconcile the opportunity with the market context, and allocate resources to achieve a lucrative goal. (WIPO, 2014, page 6).
Deepening this reflection, any other management formula that is not based on the search for new combinations, could be considered as a mere administration of the issues of law.
Therefore, intellectual property must be involved in innovation processes and we must innovate in the intellectual property structures we design. IP Thinking must be a tool for innovation, as is the design thinking process, the "lean" methodology, roadmapping, or the use of prototypes or minimally viable products. IP Design must be a tool to innovate in the management of intellectual property.
Intellectual Property was created with the aim of protecting people's innovations, so those of us who work in the field of IP should be the first to apply innovation. This means, innovating in our own work and supporting innovation teams.
About the authors:
Claudia Fernandini, founding partner at MERTZ PERU, is an attorney, with a MBA by the Universidad del Pacífico of Peru, Diploma in Innovation Management by the Cayetano Heredia Peruvian University and Leipzig University, currently studying a Master in Innovation Project Management at the Southern Scientific University (UCSUR).
Stephany Soto, founding partner at MERTZ PERU, is a Geneticist, Biotechnologist, Biologist by San Marcos National University of Peru. She holds a Master degree in Health Management from the University Inca Garcilaso de la Vega and a Diploma in Public Policy Management from the Miguel Cervantes Saavedra University of Chile and IP Specialization degree from Pacific University.
Cooper, R. (2016) Agile–Stage-Gate Hybrids. Research-Technology Management, 59:1, pp. 21-29.
Haller J. (2011). Innovation Contests: an IT-based tool for Innovation Management. Business and Information Systems Engineering 2, pp. 103 – 106.
Kalanje, C. (2016). El papel de la Propiedad Intelectual en la innovación y el desarrollo de nuevos productos. OMPI Publishing. Recuperado de http://www.wipo.int/sme/es/documents/ip_innovation_development.htm Mohnen P. y Hall B. (2013). Innovation and Productivity: an update. Eurasian Business Review, 3(1), 2013, 47-65.
OCDE. (2005). Oslo Manual: Guidelines for Collecting and Interpreting Innovation Data, 3rd Edition. Paris, Francia: OECD Publishing.
OMPI. (2014) Módulo 1: La Gestión de la Propiedad Intelectual – Curso Gestión de la Propiedad Intelectual DL-203.
OMPI. (2009) "The economics of Intellectual Property. Suggestions for Further Research in Developing Countries and Countries with Economies in Transition." WIPO. Recuperado de http://www.wipo.int/publications/es/details.jsp?id=289&plang=EN
Rubio, A. (2010). La gestión del conocimiento y los procesos de innovación. Recuperado de http://www.encuentros-multidisciplinares.org/Revistan%BA36/ALFONSO%20DIEZ%20RUBIO.pdf
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