PublishedAugust 14, 2019

Global Innovation Index Highlights The Difference Between Patents And Innovation

The 2019 Global Innovation Index (GII) was recently released by the World Intellectual Property Organization (WIPO).  Conceived of as a broad measure of the innovative environment in various countries, the GII incorporates a wide variety of indicators in an attempt to measure innovation, ranging from scientific articles normalized by economic output, to the number of full-time equivalent researchers per capita, to ease of access to the Internet.  (And yes, it also includes the number of patents.) It also includes some indicators that I’m less certain are meaningful, such as Wikipedia edits or country code top-level domains (CCTLDs) per capita.[1. The CCTLD metric, aside from its questionable relationship to innovation, is also likely one in which the U.S. is uniquely penalized due to the .com TLD effectively serving as a U.S. TLD and the .edu and .gov TLDs explicitly being limited to U.S.-based institutions.  Although .us has become more common in recent years, for a long time the .com TLD was so popular that a .us domain was seen as unusual for a U.S.-based entity.] While innovation-ranking systems are hard to design—in part, because innovation is hard to measure—the GII at least attempts to use a variety of well-defined indicators. (Other such systems, not so much.)

But the most important part of the Global Innovation Index isn’t the indicators, or even the ultimate ranking.  (The U.S. is ranked third, behind Switzerland and Sweden.  No offense to my Swiss or Swedish friends, but I’m a little skeptical of that order.)  It’s in how the report defines an innovation.

“An innovation is a new or improved product or process (or combination thereof) that differs significantly from the unit’s previous products or processes and that has been made available to potential users (product) or brought into use by the unit (process).”

This definition integrates the two aspects of innovation.  One aspect is the inventive aspect—the creation of something new or improved that differs significantly from that which previously existed.  And the second is the execution—that the improvement has actually been made available or brought into use. An invention without application is not innovation.

That’s why, when discussing promoting innovation (or, to use the Constitutional phrase, “promoting progress”), it’s important to look beyond just patents.  Patents ideally[2. All too often, patents are issued on things that do not differ significantly from previous products or processes.] represent the first half of the equation—the new or improved aspect of a technology.  But that isn’t enough to create innovation. If the patent system interferes with the second aspect of innovation, preventing the improvement from being made available for use—or if it prevents other ideas from being brought into use—then it may be harming innovation even while it helps invention.

Promoting patents isn’t the same thing as promoting progress.

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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