ip licensing

Appropriation of artisans’ intellectual property: Piracy disguised as giving back?

Creative Industries

Creative industries are industries focused on the creation, exploitation and appropriation of artisans’ intellectual property, including art, fashion design, and related creative services, such as advertisement and sales. During a trip to Burkina Faso in West Africa, Keri Fosse was taught by an African woman how to wrap African artisan fashion accessory crafts newborns with fabric in a manner that creates a strong bond and frees the mother’s hands for other tasks.

Craft culture

Burkina Faso has a craft culture and is known for its woven cotton and the textile art of Bogolan. Bogolan is a technique original to and involves the tradition of dyeing threads with bright colors, washing it skillfully, using coated and shiny Bazin, and using indigo from Benin. After this trip, Fosse and her husband developed a shirt which copies the African lady’s, Lalabu’s, technique.

They developed a product called Soothe Shirt; and created a business called Lalabu. Lalabu is also the name of the African woman that the Fosses met. They have been successful. The Fosses have stated that they got the idea from Lalabu, but redesigned it for production. The couple advertises that they “giving back” by giving 2% percent of each purchase to help female African entrepreneurs through microfinancing.

Intellectual property piracy

The Fosses claim that when African women repay their micro-loans, the women reinvest the money into the loan fund. This study argues that such practices do not reflect socially responsible entrepreneurship. Instead, they represent intellectual property piracy. The following sections discuss the relevant legal and theoretical foundations, along with current best practices. However, these practices often lack shared ownership. While Americans may commonly appropriate artisans’ intellectual property within the U.S., their appropriation of cultural crafts from other countries demands closer scrutiny and accountability.

1995 Antitrust Guidelines for Licensing Intellectual Property

Antitrust Guidelines for the Licensing of Intellectual Property

This research is about the adequacy of the 1995 patent licensing antitrust guidelines by the Department of Justice (DOJ) and Federal Trade Commission (FTC). In 1995, the DOJ and FTC adopted new guidelines for the licensing of intellectual property rights. The goal is for intellectual property licensing to not violate antitrust laws. The 1995 Antitrust Guidelines for the Licensing of Intellectual Property (IP Guidelines) provide DOJ and FTC antitrust enforcement policy.

In the past, practitioners attempted to predict the enforcement initiatives relative to their licensing. The IP Guidelines do not provide practitioners with a sufficient level of comfort (Hamilton, 2002).Unfortunately, these Guidelines are inadequate. They misunderstand the nature of intellectual property markets and provide insufficient guidance in the most difficult areas. The Guidelines include a special treatment of a newly defined “innovation market”. This is flawed and lack a focus on license-misuse activity that creates entry barriers. Antitrust and patent law practitioners have heavily debated the IP Guidelines.

2001 Hearings on Competition in the Knowledge Based Economy

To address these concerns, in November 2001, the agencies held hearings. The hearings were entitled “Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy”. Hearings were held between February and November 2002 (Muris, 2001). They took place over 24 days at the University of California’s Haas School of Business and in Washington, DC. Incredibly, this involved more than 300 panelists of representatives of high-tech industries and law firms. The independent inventor community, leading patent and antitrust organizations, and scholars also participated.

2003 FTC report on promoting innovation

In October 2003, the FTC issued a report. The report was entitled “To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy”. It focused on the patent law system. Going forward, a second report by both agencies was to be forthcoming. This one served to make similar recommendations for the antitrust law enforcement system. Problem areas included: (1) license misuse, (2) standards setting misconduct and (3) the improper acquisition of intellectual property rights.

License misuse is the refusal to grant intellectual property licenses. Also, there can be misconduct during industry standards setting. There can be improper acquisition of broad intellectual property rights through patent settlement agreements. These involved patent pools, cross-licenses, and generic drug market entry. Further, generic drug entry has attracted a great deal of interest. This is in light of the diversion of distribution from wholesalers to the multi-billion-dollar internet shadow market. This also involved a controversial Medicare Bill (Gaul, 2003). To summarize, the patent licensing antitrust guidelines are important to practitioners. Read more about whether the FTC has addressed these three common types of issues. Read more here…

New 2017 guidelines

Amend Bayh Dole Act to create CEDAs

Bayh Dole senators appearing side by side respectively

The Bayh Dole Act needs to be amended to include Cooperative Economic Development Agreements (CEDAs) patterned after CRADAs

Congress should amend the Bayh-Dole Act to provide for newly proposed Cooperative Economic Development Agreements (CEDAs) patterned after (CRADAs). CEDAs would be patterned after the Stevenson-Wydler Act’s Cooperative Research and Development Agreements (CRADAs). Technology transfer enables private industry and academia to make practical use of advanced research, development, and technical expertise. Indeed, universities are a rich source of science and technology. Universities can support local government and business development as well as economic growth. Thus, it is essential for research universities to transfer their wisdom to the public for its use and benefit.

Bayh Dole and the New Economy

Today, universities operate in an economic climate that requires both capital and knowledge. Universities take advantage of government technology initiatives such as the Bayh-Dole Act. They serve as a catalyst for the creation of a large number of new, incubated companies. Universities should have a seedbed effect on their local economies. This is one way to take advantage of the dynamics of the “New Economy”. It takes advantage of its ability to increase the quality of living at the local government level.

Certainly, the Bayh-Dole Act has revolutionized university-industry relations. This causes university licensing offices to use start-up companies to commercialize early stage inventions. Notably, hundreds of start-up companies have been formed on the basis of a licensed academic invention. This results in the commercialization of about ten percent of university ideas (Goldfarb, 2002). In short, in order to increase this trend, there needs to be greater communication and cooperation between more players. Organizations besides the universities and industries must take part in the strategic planning that is necessary to effectively commercialize university inventions. This will foster regional economic development. “[I]n difficult economic times, political stakeholders in the technology transfer process usually view success in economic impact terms, and often from short-term and parochial perspectives – how many jobs in my state next year?” (Carr, 1994).

Regional economic development

In reality, universities increasingly pressure their technology transfer specialists to become stewards of their regions’ economic development. However, most specialists have no experience in strategic economic development planning. Alternatively, they form collaborations that foster local government economic development. Furthermore, current regulations do not provide specialists with much guidance. They need guidance on how to facilitate economic development collaborations between their offices and other nonprofit organizations. Thus, this article proposes that Congress amend the Bayh-Dole Act to provide guidance. Universities need guidance on how universities can enter into newly proposed Cooperative Economic Development Agreements (CEDAs). Read more here…

Intellectual Property Antitrust Guidelines

Department of Justice DOJ and Federal Trade Commission FTC logos side by side illustrating the partnership between the two agencies

DOJ and FTC partnership to provide antitrust guidelines for intellectual property licensing

This research is about the intellectual property antitrust guidelines by the Department of Justice and the Federal Trade Commission in 1995.The guidelines addressed the licensing of intellectual property rights without violating antitrust laws. Designed to provide clarity, these guidelines instead bred confusion. They misunderstood the nature of intellectual property markets and provide insufficient guidance in the most difficult areas. Section I of this article discusses the basic provisions of the guidelines, especially their treatment of “innovation markets”.

Problem areas

Arguably, government enforcers should focus primarily on activity that creates entry barriers. Understanding the use and misuse of licensing is the key to analyzing barriers in the IP field. This article examines three common types of license misuse. Patent holders’ potential liability for refusing to grant licenses to competitors is considered in Section II. The effect of setting industry standards and at patent holders’ misconduct during industry standard setting is discussed in Section III. Section III analyzes patent accumulation through devices such as pooling and cross-licensing. The article concludes that the government should further amend the Guidelines to provide clearer rules for use of IP licenses.

Innovation markets

Certainly, innovation is encouraged and is necessary for the economic growth of nations. The obvious solution to defining innovation markets is simply to define relevant innovations. There is a need to define innovation markets in terms of the traditional goods and services markets associated with the licensed innovations. Moreover, agency focus should not be on creating a new market definition for innovations. We should associate innovations with the traditional market for the end-product line and location. These are the first two basic considerations of the relevant market definition.

Summary

Notably, licensing is a key phase of market entry for the development of innovative products and services (See U.S. Dep’t of Justice and Fed. Trade Comm’n, HORIZONTAL MERGER GUIDELINES, 1992 § 3.1, reprinted in 4 TRADE REG. REP. (CCH) ¶ 13, 104). Thus, agency guidance should focus on conduct in the high-tech arena that constitutes a potential entry barrier. Key high-tech entry barriers include refusals to license, misconduct during standards-setting activities, and patent accumulation methods. Patent accumulation methods include cross-Iicensing, package licensing, and patent pools. In short, these activities merit closer attention and practitioners need better guidance from the Agencies.

Read the article here…

Update: New 2017 intellectual property antitrust guidelines

University Technology Transfer conflicts Love and Hate

Introduction

love and hate as options in a checklist with love chosen by a gentleman

University technology transfer conflicts stem from job insecurity

This research examines university technology transfer conflicts related to the love and hate between research faculty and technology transfer staff. We attempt to provide greater understanding of how research faculty’s personal values and research universities’ organization values may differ and why. Faculty researchers and tech transfer office (TTO) staff are perceived to be virtuous agents. When both are meeting each other’s needs, a “love” relationship exists. However, when these needs are not met, a “hate” relationship exists that is replete with doubt and uncertainty. Thus, this doubt and uncertainty create tension and subsequent conflicts.

Ethical concerns

There are many accounts where faculty researchers have not followed university policies and expectations. They often violate policy and ethical standards. Likewise, faculty report numerous examples of how TTO staff members’ negligence in servicing their attempts to be good institutional citizens have failed them. Thus, this paper explores this love/hate relationship and reveals numerous conflicts that call into question ethical concerns.

Conflict Management

This article provides a set of recommendations for reducing and potentially alleviating university technology transfer conflicts. Results from a thorough review of the literature on the relationship between faculty and university TTOs reveals that perceived job insecurity is underway. Some research faculty members as well as some TTO staff, unethically violate their university policies. Violations include faculty not disclosing inventions disclosures and the staff selection to not provide full services. There are ways to alleviate the conflict between faculty’s personal values regarding their inventions and university’s organizational values. There is a need to enact measures that build trust and reduce insecurity. We not only examine this faculty/TTO staff ethical conflicts, but we offer a set of recommendations. In summary, we believe these recommendations will reduce the likelihood of unethical behavior. They encourage greater institutional commitment and trust.

Read the paper here…

Technology transfer toolkit for HBCUs

HBCU technology transfer history

University technology transfer toolkit to help emerging research institutions such as HBCUs

A technology transfer toolkit for Historically black college and universities HBCUs was proposed in my PhD dissertation. Unfortunately, under-resourced HBCU administrators complain and experience a decline in financial support from government sources (Jones, 2013). This is a serious, pressing problem that needs closer attention. In fact, some experts have argued that HBCUs are no longer relevant and should close their doors (John M. Lee Jr., 2013). Founders established HBCUs to address unequal access to education (Lorenzo L. Esters, 2013; Nia Imani Cantey, 2013). Per the Carnegie classifications of universities, few of the HBCUs are research oriented (The Carnegie Classification of Institutions of Higher Education, 2016). Thus, few HBCUs are engaged in technology licensing for revenue generation. They have not adapted to the need for change toward being more financially self-reliant (M. G. Williams, 2010).

Research method

I conducted a mixed method study of the development of an university technology transfer toolkit that HBCUs can use to become more self-reliant financially. Historically under-served HBCUs lag behind their peer non-HBCUs. Largely, they originated as teaching and blue-collar trade schools. Increased involvement in these research-oriented activities will likely enable HBCUs to grow into new or stronger research institutions. A comprehensive literature review of university technology transfer reveals non-HBCUs’ technology transfer problem areas. Addressing these issues will assist HBCUs as well.

Proposed toolkit

Notably, the problem areas for non-HBCUs would be challenging for HBCUs as well. Thus, the non-HBCUs tech transfer challenges are likely to be part of the reason that HBCUs are not taking advantage of tech commercialization. The proposed tool kit includes tools that will likely alleviate the problem areas. This would increase HBCU involvement in university technology transfer, industry partnerships, and tech-led business ventures. Faculty engagement in tech transfer requires Informal communication networks (D. Wright, 2013).

Further, dvanced planning information technology tools aid in advancing informal knowledge sharing networks which increase faculty engagement in tech transfer. They can improve decision making and perceived university tech commercialization service competencies and performance. Thus, with respect to advancing the participation of HBCUs in university tech commercialization, the research problems presented include:

Given that the problems that non-HBCUs face with university technology transfer will likely equally or more challenging for HBCUs, what are the problem areas with non-HBCUs’ university technology transfer?
What theoretical framework for research aids in the development of advanced planning system tools to help HBCUs with technology transfer?
What advanced planning system tools can diminish the university technology transfer problems?

supply chain management illustrated with images

University technology transfer is a supply chain network

In conclusion, I proposed that university technology transfer should be approached from the novel view that it is a supply chain network! Further, the social comparison theory, resource based view and paradigms shifting in combination form the theoretical framework for testing this proposition.

cloviahamilton