Freeing up IP for Innovators: A New Role for Universities is There for the Taking

By: Maxine Horn

Universities and higher level research institutes need a better way of getting innovations into the market and that means taking risks earlier in negotiations. IP management systems designed for early disclosure could be the answer, argues Maxine Horn.

Creative Barcode is a mechanism for safe disclosure of pre-contract early stage propositions, proposals and creative concepts, underpinned by a Trust Charter Agreement. It embeds unique digital barcodes into proposals, concepts, visuals, film and video.

It was introduced to provide a much-needed system by which creative industries could quickly, and cost efficiently, reduce vulnerability when disclosing materials to third parties in pursuit of new business. Its objective is to ensure creators are fairly remunerated when their work is commercialised.

Will the Creative Barcode mechanism and safe-disclosure agreement work equally well for universities?

To develop new income streams from commercial consultancy services and participate in open innovation activities, universities will need to open up conversations with industry much earlier and disclose knowledge-based propositions pre-contract.  This will place many Universities in the same position as private sector creative consultancy firms.

Universities will need to open up conversations with industry much earlier and disclose knowledge-based propositions pre-contract

Added to the mix are the relatively new business models driven by the internet age such as open innovation and crowd sourcing that now supplement corporate firms own R & D activities. These models could lead to greater commercial opportunities for universities but are not necessarily protected by non-disclosure agreements.

Glasgow goes open source – a high risk strategy?

In the summer of 2010 Glasgow University took a very bold step and announced that it was to make its entire IP available as open source. Very brave indeed – it remains to be seen whether that was the smartest move they ever made.

Open source is not for the faint hearted and it does not suit everyone, particularly those operating in creative industries who earn their living from idea generation, bought and sold. In creative industries open source could literally collapse their entire economic model.

Universities are in a similar position to that of creative industries – they are trading knowledge and they seek to trade it with industry rather than simply commercialise it themselves.

Arguably universities are in a similar position to that of creative industries in as much as they are trading knowledge, creatively articulated or otherwise, and seek to trade it with industry rather than simply commercialise it themselves through the launch of new businesses, products and services.

University spin-outs are fewer and farther between these days. The successful ones are harder to predict.

So how do you build respect for knowledge and its commercial value before validated commercial applications have been identified? And can you protect knowledge in order to benefit from its commercialisation?

The traditional IPR mechanisms and laws do not enable the protection of ideas – much to the chagrin of the creative industries. University researchers face a similar dilemma – if you want to go from lab to market, the earlier you talk to partners, the better.  Early stage, knowledge-based research with proposed market applications in effect falls into the category of creative work.

As only applied knowledge and know-how can be formally protected and valued under full non-disclosure agreements, that means rapid innovation exposes researchers to the same risks as other creatives face.

To support business development through early stage conversations with industry safe disclosure mechanisms and trust agreements are likely to become as important to universities as they are to creative industries.

It is known that many corporates are shy of signing NDAs for fear of negative impact on their own IP. In open innovation where an estimated 75% of innovation concepts, digital solutions and software applications are not subject to patent’ every participant is vulnerable and exposed to risk of misappropriation. PR credits and fame alone do not pay the bills.

However, corporates are not in a position to negotiate dozens or even hundreds of individual NDAs with those participating in their open innovation activities.

And participants, particularly the idea generation and problem-solving crowd, are not in a position to stand the cost, time and complexity of seeking legal protection and contracts for each piece of new business they pitch for or each open innovation activity they participate in.

Is Creative Barcode the answer? Creative Barcode was introduced to provide open protection to under-pin and support open innovation.  As such it is designed to increase innovation opportunities not restrict them.

Are all ideas the same and thereby free?

Importantly, Creative Barcode also protects the interests of industrial partners when the source of a concept or idea is challenged by another party. The original source is easily and swiftly identified by the unique barcode associated only to that concept and its creation source.

The origin of source and how it was identified, articulated, taken forward and commercialised is arguably the key to overcoming the notion that all ideas are free purely on the basis that ideas can be similar. Or that it is the commercialisation party alone who deserves all of the commercial benefit leaving creators unrecognised and or unremunerated. This is something Facebook recently learned to their cost.

The $315m (£195m) acquisition of the Huffington Post by AOL has also caused an exploitation stir amongst its small army of unpaid journalists who arguably made a not insignificant contribution to the popularity and thereby value of the organisation that saw it grow to attract 26 million readers a month.

That fan base would have determined AOL’s interest and the price it paid. Three venture capital firms and the private investors who have supported Arianna Huffington since she launched the site in 2005 will be sitting pretty. However, the largely unpaid content providers leave empty handed. They are suing Huffington Post for $62 million.

In short the creators, content, knowledge and solution providers are getting mighty tired of being used to build others’ value with no form of remuneration when commercial success leads to revenue shares for all but the creators.

That attitude, the fear of exploitation, lies behind many academic projects and stalls the adoption of an earlier stage exploitation pathway for universities.

One benefit of a creative barcode approach is that it will help change the ingrained habits of creative industries, knowledge holders and problem solvers who currently have little option but to disclose knowledge and concepts without any form of agreement in place.

This habit has almost certainly come about due to the absence of a non-complex, low cost mechanism and trust based disclosure system. And arguably led to the high-level exploitation we are experiencing today.

A university’s lack of protection at the early stage can be overcome with an IP management policy and tool: ‘No pre-contract, proposal, proposition, or concept leaves the building without its Barcode’.

And with a permission-based use-only agreement, creators (including universities and those who seek to use their work) will need to get used to negotiating fair commercial terms. That has to be for the greater good!

By Maxine J Horn