Bringing Together Copyright and Patent Law

ALI 2013 photos 001
Justice Breyer’s Lunch Talk

I’ve just participated in a small conference on copyright and patent law, hosted by the American Law Institute and Georgetown University Law Center, a few steps from Capitol Hill in Washington, DC. Of the 40 people in the room, I was the only one who was not a lawyer or a legal scholar—I was invited to contribute perspectives from creativity research. I was honored to be in the room, because these were some of the most highly respected people working in intellectual property—scholars from Stanford and NYU; senior legal counsel from Google and Walt Disney; judges on the Federal Circuit Court; and our lunch speaker, Supreme Court Justice Stephen Breyer. He impressed the hell out of me…a great speaker, savvy in the political ways of Washington, and a brilliant mind. The smartest guy in the room–and in this room, that was saying a lot.

Although a lot of the legal terminology went over my head—“doctrine of equivalence” and “settled expectation”—it was really stimulating. After all, the research shows that one of the best ways to stimulate creativity is to learn something about a new field related to your own. I give this advice in my new book, Zig Zag (on pages 67 and 68):

Branch out: Always start with your core area of expertise—but don’t stop there. Branch out and study subjects in every area that is somehow related to your problem….Successful creators are curious by nature. They ask questions and listen closely to the answers, even when the information has no obvious relationship to what they’re working on at the moment.

This conference was perfect for me, because intellectual property lawyers think about creativity every day, but using a totally different language and perspective from my creativity research colleagues. Here are some of the key themes I took from the day:

  1. The panel I spoke on discussed how (and whether) patents and copyrights provide incentives to creators to create. The research shows, not very much. Creators almost never think about patents or copyrights; when they do, they mostly get annoyed and consider them to be a hassle. Lots of creativity takes place in areas which are not eligible for patents or copyrights—from top chefs inventing new recipes, to the time-consuming and effortful work of writing fan fiction.
  2. Do judges even need to pay attention to what these scholars think patents and copyrights should do? After all, isn’t the role of a judge simply to interpret the statutes as written by Congress? I was a bit surprised to discover that pretty much everyone in the room thinks this is naïve and simplistic. The statutes are thought to be broad and ambiguous, open to interpretation. And after ten or twenty years, things change so much—and so much case law develops—that the statute really isn’t that helpful any more.
  3. Justice Breyer was asked, “We have a bumper crop of IP cases before the Supreme Court; is there an increased interest in these issues?” Breyer’s response was that the legal community has been saying that the Federal Circuit Court (which handles all patent appeals for the entire U.S.) has become “too patent friendly,” and the Supreme Court is listening and essentially, checking to see if that’s true.
  4. A common theme was the tension between generality and specificity. Patent law is general—it applies to all technologies and scientific domains. One could imagine a more specific regime; for example, the Digital Millenium Copyright Act (DCMA) is a statute concerning intellectual property that is specific (to digital rights and copyrights) rather than general. My sense was that the consensus was in favor of general regime and against specific regimes. A second manifestation of this tension is with the courts; the Federal Circuit Court handles all patent appeals, which means those judges develop specialized knowledge about patents. Before the Federal Circuit was created, patent appeals were heard in the regional District Courts, by judges who heard appeals of every kind of decision—a more general role. Most scholars seem to think this is a good idea, although the Federal Circuit has been widely criticized, as Justice Breyer noted, for being too patent friendly.

The stated theme of the conference was “bringing together copyright and patent law in court,” and I’m not sure we got any good answers for how to do that. But I probably only think that because I’m not part of this legal community; the folks I met there told me that copyright experts and patent experts are like people from two different planets, who rarely come together. In the courts, the Federal Circuit handles patents and the District Courts handle copyrights. So I’m pretty sure the conference organizers would consider the event a success, simply by getting copyright people and patent people in the same room together.

ALI 2013 photos 002I stayed one extra day, and toured several museums. The high point was visiting the old Patent Office, just a few blocks from the conference, which had a special exhibit of historic patent models from the 19th century. The building also houses the National Portrait Gallery and the Smithsonian Museum of American Art. And–it’s a bit geeky–but I also loved the Postal History Museum, in the old post office building right next to Union Station. If you want to learn about facer-canceller machines, or about the handmade artwork in old cancellation stamps, this is the place for you!

Educating for Creative Minds

I just returned from San Francisco, where I gave a keynote at the “Learning & the Brain” conference. In my talk, “Creative Teaching for the 21st Century,” I described the learning outcomes students need to become creative, and I identified the central features of learning environments that foster creative learning. The very receptive audience included over 1,500 dedicated educators–teachers, school leaders, education entrepreneurs.

I really enjoyed spending time with my creativity research colleagues. I chatted with other creativity experts on the program, including:

  • Ronald Beghetto, professor at University of Oregon and co-editor of Nurturing Creativity in the Classroom
  • Shelley Carson, author of Your Creative Brain
  • Charles Fadel, author of 21st Century Skills: Learning for Life in Our Times
  • James Kaufman, professor at Cal State San Bernardino, and author of Creativity 101
  • Tina Seelig, Executive Director of the Stanford Technology Ventures Program and author of inGenius: A Crash Course on Creativity

There were several other colleagues in San Francisco that I wanted to meet, but I just couldn’t find them among the 1,500 people: Nancy Andreasen, Mark Beeman, John Seely Brown, Scott Barry Kaufman, John Kounios, Dean Keith Simonton, and many others. The conference organizers did a great job of bringing together the top people working on creativity and learning.

Thank you to all of the educators who came up to me after my talk, to tell me about their own efforts to redesign schools to foster greater creativity. You are pointing the way toward the future!

Innovation When You Least Expect It

I’m in San Francisco to give a talk, and I flew here on United. I discovered that this month’s in-flight magazine has a special section on innovation! I have to admit, I rarely even open the in-flight magazines when I travel, so this is the last thing I was expecting.

It starts with an interview with Fareed Zakaria. I didn’t know he had thought much about innovation, but based on this interview, he’s clearly read the right books and understands the research consensus on how innovation works:

Zakaria has discovered that true innovation isn’t merely the product of a great idea, but a ripple that tends to spread out in unforeseen ways.

Yes, unpredictable and improvisational–like jazz or improv theater.

Another  quotation from Zakaria:

[What’s behind an extraordinary idea] is the interaction between human beings. That depends on openness, because open systems tend to be much more innovative.

That’s why my 2007 book on innovation is called Group Genius, and I call these maximally innovative open systems “collaborative webs.”

Another short article in the issue mentions the massive innovation in the craft brewing business, and also mentions Pernod Ricard’s new Breakthrough Innovation Group, which has come up with new beverages like Absolut Tune. (I’m all for innovation in the beverage sector!) They go on to point out that Kimberly-Clark conducts “expert acceleration sessions”; Intuit organizes “lean start-ins”, and General Mills has two “innovation squads.” (p. 83)

I’ll have to start paying more attention to those in-flight magazines!

*David Carr. “The Hemi Q&A: Fareed Zakaria.” Hemispheres magazine, February 2013, p. 72-73, 130.

Where Do New Toys Come From?

QuintessentialBarbieSome toy brands are cash cows for their companies: Think Barbie and Hot Wheels (Mattel) or My Little Pony (Hasbro) or Lego. These toys have been popular for generations; new parents buy them for their children; they almost sell themselves. But after a few decades of growth, you reach market saturation (every girl who might have a Barbie already has one) and then, how do you grow your revenue? There are two ways that companies like Mattel traditionally grows their revenue:  

  • First, from licensing. They’re really good at making plush dolls of Disney movie characters. (Or I should say, good at designing them and outsourcing their manufacture to China). The licensing deals have pretty fixed profit margins, because a lot of companies can send a CAD design to their supplier in China.
  • Second, from acquiring already established brands. Mattel bought Fisher Price; they bought American Girl; after their Hot Wheels succeeded in the market, they were eventually able to buy their competitor Matchbox. (Where are the antitrust police when you really need them?) But acquisitions, like licensing, come with a pretty fixed (and limited) upside potential. Sure, maybe Mattel can do a somewhat better job of marketing and realizing value from an established brand, but to some extent that upside potential is built into the acquisition price.

A lot of other brand portfolio companies grow in the same two ways. And the growth potential, and the profit margins, are not great.  For real success, you need organic growth–you need to come up with successful new toy brands, in house, all by yourself. And this can be difficult for companies like Mattel and Hasbro, because they’re doing so well with existing brands and with licensing. Organic growth really isn’t in their DNA.

But the pressure is on for more organic growth in the toy industry. Today, it seems that “kids are rewarding toy companies that introduce original lines based on new characters” (according to the Wall Street Journal*). Mattel has a hit with its new Monster High dolls (now a $1 billion brand), and Activision Blizzard with its Skylander videogames, where players place a collectible toy on a small platform, thus spawning that character in the world of the videogame (now a $500 million brand in the U.S.). Organic growth requires innovation–completely new ideas that turn into successful, marketable products. And if your company is focused on brand acquisitions and licensing, you probably don’t do innovation very well. The challenge, then, is getting organic growth without disturbing the existing successful lines of business.

The traditional way to do this is to create a separate unit for innovation: a research & development lab, where creative designers spend all day dreaming up new toy ideas. You might put them in a different office building, so their creativity isn’t poisoned by your boring traditional office environment. Maybe you put in some beanbag chairs and let them walk around in their socks while they drink espresso made by the company barista. However, there’s a big problem with this approach: when R&D sends a great new idea over to the old office building, often no one knows what to do with it. This “hand-off” problem is well known, and there are tons of famous examples (Xerox PARC and the modern personal computer is one of the more famous).

In my book Group Genius, I recommend a different approach: Spread creativity throughout the organization, rather than locking it up in a separate building. Get everyone involved in new ideas and products. Build a collaborative culture where people are sharing their ideas constantly. When the whole organization is working on innovation, then the hand-off problem essentially fades away–because the people doing the innovating are the same people who will then have to make, package, and market the innovation.

*John Kell, “Originality helps build hit toy brands.” Wall Street Journal, Monday, Feb. 11, 2013, p. B2.

Stamen Design Understands the Zigzag

Rodenbeck zigzag Feb 2013The creative process is not linear. Just the opposite: It zigs and zags. Eric Rodenbeck, founder and CEO of Stamen Design, really understands this. Check out this image he generated, for Business Week magazine, of how projects get developed at Stamen.* The neat stairway from left to right shows the traditional path of project development, from Requirements through Design, Implementation, Test, and Deliver. The zig-zaggy purple path is tagged “How Stamen works.”

For a hundred years, creativity researchers have tried to figure out the linear stages of the creative process. It usually looks a lot like the stairway in this picture, with the traditional stages being something like Preparation, Incubation, Insight, Verification, and Elaboration. But in the last decade or so, it’s become increasingly clear that the creative process zigs and zags constantly.

That’s why my new book about creativity is called Zig Zag: The Surprising Path to Greater Creativity. In the book, I identify the eight steps involved in being creative, but I don’t think they follow one another in a neat line. Creative lives pass in and out of all eight steps, daily and weekly, as they zigzag toward that surprising, successful creation.

The first step in my book is ASK, finding the right question. And even though it’s the first step, sometimes it comes all the way at the end of the process. Eric Rodenbeck understands this too; as he puts it,

The important part is the questions you’ve discovered along the way.

*”Eric Rodenbeck on leading creativity.” Business Week, “The Design Issue,” January 28-February 3, 2013, page 67.

Creativity and the Superbowl

Will we see creativity on the field in tomorrow night’s Superbowl football game, between the San Francisco 49ers and the Baltimore Ravens?

In one sense, of course there will be creativity–after all, no one knows what the outcome of the game will be. If coaches choose predictable plays, then the other team can anticipate them; you can’t win without being surprising and unpredictable. In every play, each player responds with movements that are highly attuned to the moves of the opposing players. In that sense, each play is a form of collective improvisation–highly constrained, of course, but still it’s improvised and creative.

In Friday’s Wall Street Journal,* Matthew Futterman argues that players have been taking more and more responsibility for game management from the coaches. As a result, we see “a more wide-open, improvisational game” because “the role of an NFL player is shifting at the team level.” And Futterman says:

The NFL is shifting from a league where coaches dictate most of the action, to one of constant improvisation, where even rookies, such as Washington Redskins quarterback Robert Griffin III, are taking on an unprecedented level of responsibility for managing games.

NFL football is following the rest of the U.S. economy in moving towards collaboration and improvisation. This is a historic shift, one that I describe in my 2007 book Group Genius. In my book, I argue that basketball is the U.S. sport where improvisation is most important. And it’s great that football is becoming more collaborative and more improvisational; it’s one of the reasons I’m enjoying football so much more in recent years.

When you watch the game Sunday night, look for the small improvisations on the field, the ones that happen in every play, the ones that the announcers never comment on–because they’re just a standard part of the game. Look for the quarterback and the receivers to change their routes in response to the defensive moves. Look for a surprising play call, one that surprises even the announcers. Look for creativity!

*Matthew Futterman, “Power shifts to the players.” Wall Street Journal, Friday Feb 1. 2013, p. D4.