Patents and Open Innovation

Patents and open innovation – friends or foes?  IP lawyer and Penn State law professor Clark D. Asay writes that open innovation communities subscribe to the view that “patents stifle rather than promote innovation”.  Asay believes that “it has become conventional wisdom in open innovation circles that patents threaten their very way of life”.  On the other hand, a recent article from Intellectual Asset Magazine suggests that businesses in the UK that are considered to be the “most open” in terms of their approach to innovation are also the most likely to obtain patents.

Does “openness” go hand in hand with protection, or do patents threaten to undermine open innovation?  The likely answer should please my fellow officers of the court – “it depends”.  It most cases, however, we believe that securing a patent on an invention enhances the opportunities that the invention could be commercialized through some type of open innovation structure.
Companies who are seeking outside solutions to innovation challenges will probably want (need?) patent protection at some point.  These companies are typically seeking to obtain an advantage over their competitors, and being able to exclude competitors from practicing a particular invention in the marketplace achieves that.  Often the ownership of the patent will be an issue that is up for negotiation.  We have seen successful arrangements in which the company seeking the solution owns the patent, the inventor owns the patent, or even a third party company owns the patent.  Conversely, we have not seen many scenarios where the existence of a patent precluded the possibility of using an open innovation approach.

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