Intellectual Property: the winning Mario Kart strategy
Patent searching, filing and policing is rapidly becoming a drag on organizations’ resources and agility. The likes of Apple and Samsung only manage to neutralize each other in epic but ultimately no-value-adding battles, pharmaceutical giants are increasingly pressurized to limit the reach of their patents, all industrial sectors produce patents in great numbers without preventing in the end everyone from copying everyone else. While I appreciate this is a simplistic generalization, I get the feeling that the whole business around patents has reached the point of creating more costs than benefits for innovative companies. The time for a new approach has come: enters Mario Kart.
In a world of open innovation, where collaboration can take place on an unprecedented scale and speed to harness human ingenuity, patents are becoming narrower and narrower. They can still be obstacles for competitors, but rarely outright barriers: they don’t force followers to stop, merely to waste a bit of energy going around them. Patents are akin to banana skins that Mario Kart racers drop in their wake: they’ll send unskilled competitors into a spin but they won’t stop them for long and they won’t stop skilled competitors at all.
Of course, Intellectual Property (IP) cannot be ignored altogether. It is now a fact of life for competing organizations. Ignoring it would create even more nuisance. But Mario Kart points to a better strategy. Every so often Mario Kart racers are able to pick one of these glowing bubble shields that makes them immune to banana skins or indeed any other object thrown in their path. Equiped with such a shield, they can indeed focus entirely on the driving, usually outpacing their rivals rapidly. In IP terms, this is called Freedom to Operate, which is a lot easier and cheaper to acquire than patent rights: all that is required is to make a disclosure, thereby claiming ‘prior art’.
Proponents of patent filing will cry in horror at the idea of systematic disclosures, which indeed means that any competitor can copy. But the truth is that nobody has ever won a Mario Kart race by throwing banana skins. You win at Mario Kart by running the race in front and focusing on optimizing your trajectory. If you’re not in front, you can get there by focusing on driving skills, not wasting time and attention by throwing bananas at your opponents. Very solid patent portfolios did not prevent Kodak, Nokia or Blackberry to go down the drain. Recent examples of companies trying to monetize their patent portfolios have turned out to be a lot less lucrative than what they had been expecting.
So rather than feeding the patent industry beast and incurring increasingly high administrative costs for diminishing returns, companies could radically simplify the game by ensuring their freedom to operate and concentrating their resources on speed to market. You don’t win at Mario Kart by collecting and throwing banana skins.