© The Author (2008). Published by Oxford University Press. All rights reserved
Editorial |
IP: it all figures
One of the showpiece seminars held by the Intellectual Property Institute, London, this summer was entitled ‘IP and small firms in the UK: who's doing what, and does IP help?’. The speaker, Oxford economist Mark Rogers, treated the audience to an account of the extent of use made by businesses over a 4-year period, dividing the available data by type of IP right applied for, size of enterprise, and scale profitability.
There were several striking things about this seminar. One was the willingness of the speaker to make available not only his findings but also his methodology for the ensuing discussion. Another was his willingness to listen to comments, both constructive and critical, from the sadly small number of IP lawyers who had come to hear him.
Events such as this invite two questions: do economists have anything to teach the practising IP specialist, and do analyses of gross figures convey anything meaningful to the person whose training and skill are brought to be on specific issues—the scope of a patent claim, for example, or the terms to be included in a trade mark licence—rather than on the generalities that can be gleaned from a high level view of the activities of tens of thousands of enterprises, undifferentiated by industrial sector or other real-world criteria?
The answer to the first question is a qualified ‘yes’. Businesses, it is often said, must make their own business decisions and should not leave them to be made by lawyers. Yet the persistence of the client is often difficult to resist or even deflect. Should I go ahead with this patent application? Ought I to wait until my trade mark application comes through unscathed before I launch this brand? Is it wise to rely on unregistered rights rather than opt for design registration? The prudent lawyer passes the decision back to his client but knows that the decision is often made on the basis of scant information, particularly where new products and markets are concerned.
Gross statistical information can never fill the void that the absence of market-specific information leaves, but it can suggest a game theory approach in which the client can be given to appreciate that IP protection is more, or less, useful to businesses of a certain size at a particular stage in their cycle of development. A business may be encouraged to know that there is an emerging pattern which shows that a company of its own size and scale of activity derives a benefit from patent filing that is marginally better than the performance of all businesses, taking no account of patenting activity. This is not a question of cause and effect but, if it leads to bad decision-making, with businesses suffering detriment through the filing of patents, this too will filter back into the gross figures as the effect of the patent filing benefit creeps back towards zero.
As for the second question, it is improbable at this stage that the performance of the patent attorney or trade mark lawyer will be in any meaningful sense enriched by this research. But that is not to suggest that it should be ignored in professional circles. When one considers IP reform exercises, on both sides of the Atlantic and indeed beyond, one is struck by the fact that governments and international bodies receive submissions relating to the economic impact of IP rights as well as their technical legal nature. The two are however intertwined.
Patents, for example, will perform differently in the economy, and will be more or less sought-after, depending on the breadth of protection conferred by them, which in turn depends upon claim-drafting skills and the interpretation canons adopted by the courts and patent granting bodies. The same applies, mutatis mutandis, to other rights both registered and unregistered. The gross figures, even if they cannot be more closely refined—which seems unlikely given the growing sophistication of the methodology and the increasing availability of data—provide a regular health-check for the IP rights they cover and for the business activity that they inspire or deter.
This editorial both predicts that lawyers and IP technicians will pay greater attention to statistical analysis of commercial behaviour in their field and looks forward to the benefits which this closer attention will confer.
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