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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, July 24, 2007More Details On IBM's EIOP Proposal.A few days ago I got hold of a copy of a non-paper prepared by IBM going into further details of their proposal for creating a  European Interoperability Patent (EIOP) aka Soft IP which does not provide a title to issue an injunction to an infringer but only a title to collect license royalties. I can publish that non-paper here with IBM's permission.IBM now argues that the EIOP proposal would fit very well to revitalise the stalled debate on the EU Community Patent. One of the major points according to IBM is that patent law already recognises the concept of an innocent infringer - one who did not know of some infringed patent or could not reasonably be expected to have known of the patent. IBM's Soft IP concept would extend the notion of the innocent infringer. One context within which this has been discussed is the European Community Patent where the cost of the patent would be prohibitive if translation into all the languages of the European Community were required, and yet those potential infringers in countries not using the language of filing of the patent application will be vulnerable to being an innocent infringer simply because the patent is not in their own language. Here IBM tries to jump into the gap by suggesting that the entire EU Community Plan should be revived on the basis of their Soft IP paradigm which in some lesser extent relies on an assumption that everybody active in commerce should have read all of the potential relevant patents because of under Soft IP rules there is no risk of being served with an injuction order.A bold approach indeed - a private company attempting to revive a project that was stuck in the mud since a failed political attempt to overcome diverging national interests in the EU years ago. However, IBM might be seen as one of the very big global players on the IP theatre, and, hence, I think that those suggestions put on the table by them deserve at least to be taken seriously. In my opinion, the latest non-paper of IBM as mentioned above should preferably be seen in the context of at least two earlier related ones of their publications:
 When reading all of these IBM papers I have the feeling they might have been heavily influenced by that what Mr Henry Chesbrough is used to call Open Innovation: The central idea behind open innovation is that in a world of widely distributed knowledge, companies cannot afford to rely entirely on their own research, but should instead buy or license processes or inventions (i.e. patents) from other companies. In addition, internal inventions not being used in a firm's business should be taken outside the company (e.g., through licensing, joint ventures, spin-offs). In contrast, closed innovation refers to processes that limit the use of internal knowledge within a company and make little or no use of external knowledge. In consequence, an obvious demand to adapt IP law accordingly to facilitate such models might emerge.  In his recent book Open Business Models, Mr Chesbrough attempts to explain how to make money in an Open Innovation landscape. He proposes a diagnostic instrument for assessing a company's current business model, and explains how to overcome common barriers to creating a more open model. He also offers examples of companies that have developed such models - including Procter & Gamble, IBM, and Air Products. In addition, Chesbrough introduces a new set of players - innovation intermediaries - who facilitate companies' access to external technologies. He explores the impact of stronger IP protection on intermediate markets for innovation, and profiles firms (such as Intellectual Ventures and Qualcomm) that center their business model on innovation and IP. In particular, Mr. Chesbrough suggests to link intellectual property to the technology life cycle. At least slide 6 of Mr Burt's presentation at EUPACO-1 appears to be inspired by Mr Chesbrough's IP life cycle model.In total, my overall impression is that IBM have reckoned their future prospects in terms of the most likely evolution of their business model, particularly in the light of the EPO Scenarios Project, and have reached to the conclusion that they probably might thrive most on the basis of the Open Innovation paradigm. Now it appears as if they will harness all their political influence to lobby for a legal environment of IP protection where Open Innovation can flourish. This can hardly be seen as illegitimate per se. I expect IBM to start some kind of a lobbying action in favour of Soft IP as early as this autumn or so. The most crucial question might be what other industries with different business models will say then. I guess that branches like pharmaceutical companies might not be amused. IBM writes in the non-paper that they want "to consider the Soft IP concept in relation to the Community Patent, but equally it could apply in relation to the European patent as a whole (a single patent covering all EPC Contracting States)". In my view this sentence renders any assertion given otherwise that the "Soft IP" Community Patent route would be strictly optional somewhat blurred - if the traditional EPC bundle patent were also converted to Soft IP there would be no much room for "optional" approaches at least on EPC level. IBM will need to clarify this somehow, I presume.Technorati Tags:  Patents
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