Legislating The Speed (Limit) of Light

I’ve been thinking a lot about the talk that Jim Carroll gave at the Tech Alliance Power breakfast (much of which was cataloged here and examined in greater depth by the good folks at Honey Design and by David Canton). The question that keeps coming to my mind is this: If innovation moves faster and faster and as a result, product life cycles are shorter and shorter, what does this mean for intellectual property and copyright, specifically with regard to patents?

One of the most notable take-aways for me was the over arching focus on the speed of innovation – and more specifically that innovation is moving so rapidly that a digital still camera released today has a product life of 3 to 6 months. iPhones have had their current 3G version publicly available for less than a year, and many are calling for a product update as soon as this week.

One of the most notable moments for me came when this card was flashed on the screen:

We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten.Bill Gates.

Looking at this another way, a lot of times adoption is more critical than innovation, and an innovator often has to be prepared to go slower in order to move faster. This can mean letting competitors achieve what is often referred to as the First Mover “Advantage,” although it’s so rarely advantageous to move first that this catch phrase becomes somewhat of an oxymoron. The (unlevel) playing field is littered with first movers who had a great technology or the next best thing but who were quashed (or bought for pennies on the dollar) by larger organizations with better lawyers.

For me, the matter of patents and intellectual property is becoming more and more distressing. Canadian innovation giant RIM had its stock – the capitalization it needed for growth – battered for years because a company called NTP claimed RIM was using concepts, specifically sending emails to wireless devices, and that this constituted infringement. They settled out of court for more than $600 Million.

Now, it’s important to note something here: NTP doesn’t actually make any technology that sends or receives wireless email. Nor have they actually developed a working prototype of such a device. In fact, they didn’t actually come up with the idea, they bought it off someone else. Moreover, and this is what gets me… NTP doesn’t actually make or do anything – their whole business is licensing patents they’ve acquired from other sources.

What does this mean for innovation? Well, for one thing, it means that businesses can be stifled even before they’re initiated! This could mean that if I have a general idea for a business, I may very well have to license the idea from someone else (if they’re willing to license it to me), despite the fact that I may have a working prototype, business model and even several million customers. Consider: What if Alexander Graham Bell had built the telephone, only to discover that someone else had patented “two-way voice communication over electric wires”? What if Thomas Edison had lit that bulb but then found out that Tesla owned the rights to “Electric Illumination Devices”. If you think that these seem far-fetched and frivolous, I would encourage you to look into Amazon’s One Click Purchasing Patent.

There’s some good news, though:

  1. Patent law is under review and we should see patent tort reform and hopefully some relief soon.
  2. Patents are jurisdictional, meaning that what’s patented in the US may be clear in places like the EU and China;
  3. Creative commons licensing and the open source communities are gaining steam and visibility (not to mention credibility);
  4. And finally, the speed of products is rendering the protection of unimplemented intellectual property relatively moot.

Marshal McLuhan said “Invention is the mother of necessities,” and as product life-cycles move faster and faster and increasingly require global adoption in order to stay competitive, the need to protect ideas becomes less important. The ephemeral nature of our consumption demands new features and new extensions with alarming frequency. This means that building the better mousetrap, and not just dreaming one up, is indeed becoming the way to get the world to keep walking that well-worn path to your door.

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